United States District Court, D. Colorado
ORDER GRANTING IN PART REMAINDER OF PLAINTIFF'S
MOTION FOR BACK PAY AND DIRECTING ENTRY OFJUDGMENT
William J. Martínez, United States District Judge.
Brandon Fresquez sued Defendant BNSF Railway Co.
(“BNSF”), his former employer, for retaliating
against him for engaging in protected activity, in violation
of the Federal Railroad Safety Act, 49 U.S.C. § 20109
(“FRSA”). The case proceeded to a 6-day jury
trial before Senior U.S. District Court Judge Wiley Y.
Daniel. On February 19, 2019, the jury returned a verdict in
favor of Fresquez, finding that BNSF retaliated against
Fresquez in violation of the FRSA, and awarded Fresquez $800,
000 in compensatory damages and $250, 000 in punitive
damages. (ECF No. 152.)
Daniel reserved questions of back pay and front pay for
judicial determination. (ECF No. 159 at 131-32.) The parties
briefed the issues of back pay and front pay, and Judge
Daniel set a hearing on the matter. (ECF Nos. 155 & 166.)
Sadly, prior to the hearing, Judge Daniel passed away. On May
16, 2019, the matter was drawn to the undersigned, and the
Court held a hearing on the issues on September 6, 2019. (ECF
Nos. 171 & 192.)
the hearing, the Court entered an Order resolving certain
disputes between the parties regarding calculation of back
pay and front pay, taking under advisement the precise dollar
amount of back pay and front pay to be awarded, and directing
the parties to submit simultaneous, supplemental briefs on
the issue of the dollar amount to be awarded consistent with
the Court's rulings in the Order. (ECF No. 193 at 34.)
the disputes resolved, the Court found that Fresquez is
entitled to ten years of front pay from the date of the jury
verdict, or until February 19, 2029. (Id. at 17.)
Implicit in this finding was that back pay should run from
the date Fresquez was fired to the date of the jury verdict.
The Court also instructed the parties to not reduce
Fresquez's back pay by the amount Fresquez received in
unemployment benefits (id. at 25); to omit any
health insurance payments from the back pay calculation for
failure to prove the amount spent due to lack of health
insurance (id. at 29); to calculate Fresquez's
estimated but-for wages using the method of expert witness Jeffrey
Opp (id. at 26); to calculate the relative loss in
health benefits using a multiplier (id. at 30); and
include prejudgment interest using a fixed rate of 5.54%,
compounded monthly and according to a formula approved by the
Tenth Circuit (id. at 33). The parties were also
instructed to calculate prejudgment interest as of December
17, 18, and 19. (Id. at 34.)
SUPPLEMENTAL BRIEFING ON AMOUNT DUE TO FRESQUEZ
timely filed its supplemental brief on November 25, 2019.
(ECF No. 194.) Due to a scheduling error at Fresquez's
counsel's firm, Fresquez filed his supplemental brief the
following day, along with an unopposed motion for leave to
belatedly file the supplement as well as another supplement
brief with interest calculations the following week. (ECF
Nos. 196 & 198.) The Court granted the Motion for Leave.
(ECF No. 197.) Because both sets of calculations deviated
from the Court's Order directing supplemental briefing,
the Court requested the native file used by each expert to
calculate back pay, front pay, and prejudgment interest.
to the Court's Order that front pay be calculated for ten
years from the jury verdict on February 19, 2019, Fresquez
calculated front pay for ten year after the date of September
6, 2019 hearing. (Compare ECF No. 193 at 17
(“Fresquez is entitled to ten years of front pay from
the date of the jury verdict”) with ECF No.
198-2 at 2 (front pay calculated from September 7, 2019 to
September 7, 2029) and Id. at 3 (“Date of
Report/Trial: 09/06/19”).) It also appears that
Fresquez calculated back pay from the date of his termination
until the date of the hearing. (ECF No. 198-2 at 2; see
Id. at 3 (“Date of Report/Trial:
09/06/19”).) Plaintiff's expert calculations for
back pay and front pay are therefore inconsistent with the
Court's Order, and of little use to the Court. This error
influenced the Court's decision to request the native
files with calculations from the experts.
Court also ordered the parties to “calculate
prejudgment interest using a fixed interest rate of 5.54%
with such interest compounded monthly” and to
“use the formula approved by the Tenth Circuit in
Reed v. Mineta, 438 F.3d 1063, 1067 n.4 (10th Cir.
2006).” (ECF No. 193 at 33.) The formula used in
Reed takes the future value of each payment owed to
a plaintiff from the date the each payment was due, subtracts
the original value of each payment, thus leaving only the
interest component, and then adds the interest components of
each payment. 438 F.3d at 1067 n.4. In other words, it
calculates the amount of interest due on the amount owed over
time, and takes into account that, absent the discriminatory
action, the plaintiff would have earned money over time.
Contrary to the Court's Order, Fresquez calculated
prejudgment interest on the entire amount of the award from
May 27, 2016. (ECF No. 198-2 at 15.)
two errors make it difficult for the Court to rely on
Fresquez's model for calculating front pay and back pay.
Even if the Court were to adjust the date ranges for back pay
and front pay in Fresquez's model, the Court would still
need to separately calculate prejudgment interest in
accordance with its ruling, rather than rely on
Fresquez's model to calculate prejudgment interest.
BNSF did not present an expert at the hearing on back pay and
front pay, after the Court issued its Order, BNSF retained
economist Mark Erwin to calculate the amount of back pay,
front pay, benefits, and interest to be awarded. (ECF No. 194
calculated back pay from termination (May 27, 2016) to the
jury verdict (February 19, 2019) omitting any health benefits
or unemployment benefits from the calculations. (ECF No.
194-1 at 4.) Erwin also deducted “unreimbursed railroad
employee expenses” (essentially, union dues) from
Fresquez's but-for wages. He also deducted income taxes
on Fresquez's but-for wages and non-railroad wages.
However, once Erwin arrived at a final recommended back pay
and front pay award, he provided an estimate of taxes on that
with the Court's Order, Erwin calculated lost front pay
from February 19, 2019 through February 18, 2029. (ECF No.
calculate estimated future wages, Erwin began with Opp's
2019 but-for wage estimate and Fresquez's actual 2019
wages for his non-railroad wages. (Id. at 6.) Erwin
then projected the but-for wages forward from 2019 using
forecasted changes in the Employment Cost Index.
(Id.) For projected non-railroad wages, Erwin used
the forecasted changes in the Employment Cost Index and
gradually adjusted Fresquez's earnings from the
entry-level wage to median-occupational earnings by 2029.
calculated health benefits in the following manner: He found
that in 2019, Fresquez's health benefits at BNSF would
have been approximately $9, 459, or 8.98% of Fresquez's
but-for wages. He therefore added 8.98% to Fresquez's
but-for wages each year. For non-railroad healthcare
benefits, Erwin assumed, based on a Kaiser Family Foundation
report, that employers typically pay $5, 946 in annual
premiums for employee-only coverage. This amount was equal to
11.66% of Fresquez's 2019 post-railroad wages. Thus,
Erwin added 11.66% to Fresquez's post-railroad wages each
calculations include three data points that BNSF did not
raise in the briefing on back pay and front pay or at the
hearing: (1) unreimbursed railroad employee expenses; (2)
income taxes; and (3) life/employment expectancy. As with the
back pay calculations, Erwin deducted unreimbursed railroad
employee expenses from Fresquez's projected but-for
wages, and deducted income taxes from Fresquez's but-for
wages and non-railroad wages. Also as noted above, Erwin
estimated the taxes due on the lump sum, and provided an
estimate to the Court of the tax liability that would
accompany the award.
Erwin adjusted but-for earnings and post-railroad earnings
based on “Plaintiff's expected likelihood of
remaining in the labor force from the date of judgment
through the end of his lost front pay period in 2029.”
(ECF No. 194-1 at 10.) He therefore concluded that, on
average during the ...