Combes v. Griffin Television, Inc., CIV-75-0386-T.

• Decision Date: 08 October 1976
• Docket Number: No. CIV-75-0386-T.,CIV-75-0386-T.
• Citation: 421 F. Supp. 841
• Parties: Ralph E. COMBES, Plaintiff, v. GRIFFIN TELEVISION, INC., d/b/a KWTV, Channel 9, a corporation, Defendant.
• Court: U.S. District Court — Western District of Oklahoma

421 F. Supp. 841

Ralph E. COMBES, Plaintiff, v. GRIFFIN TELEVISION, INC., d/b/a KWTV, Channel 9, a corporation, Defendant.

No. CIV-75-0386-T.

United States District Court, W. D. Oklahoma.

October 8, 1976.

Stephen Jones, Enid, Okl., for plaintiff.

Roy J. Davis and Mona S. Lambird of Andrews, Mosburg, Davis, Elam, Legg & Bixler, Oklahoma City, Okl., for defendant.

OPINION

RALPH G. THOMPSON, District Judge.

This action was brought by Ralph E. Combes, plaintiff (hereafter "Combes"), against Griffin Television, Inc., doing business as KWTV Channel 9, a corporation, defendant (hereafter "KWTV"), under the Age Discrimination in Employment Act of 1967 (ADEA), being Title 29 U.S.C. § 621 et seq., under which Act this Court has jurisdiction.

The trial was bifurcated. Trial by jury was held July 19-22, 1976 on the sole question of liability, i. e. the question of whether KWTV had discharged Combes as a newscast anchorman in violation of the ADEA, resulting in a jury verdict for Combes. Trial to the Court on the question of appropriate relief followed on September 21, 1976. Thus, the jury having determined the fact of KWTV's discriminatory discharge of Combes, it is the scope and purpose of this opinion to make findings of fact and conclusions of law on the remedies to which Combes is entitled.

Combes seeks several forms of relief: (1) recovery of back wages and benefits that he would have earned and received had he not been unlawfully discharged; (2) liquidated damages; (3) reinstatement to the same job or comparable position; (4) injunction to prevent further discriminatory acts against him; (5) compensatory damages for pain and suffering; (6) attorney's fees and (7) costs. KWTV concedes Combes' entitlement to back wages and benefits, attorneys fees and costs, denies entitlement or appropriateness of Combes' remaining claims and suggests an award of "front pay" as an appropriate alternative to reinstatement.

Combes was employed by KWTV on June 19, 1972, at the age of 47, and was discharged on January 3, 1975, at the age of 49. He was thus within the ages protected by ADEA. 29 U.S.C. § 631. At the time of his discharge he was "anchorman" on KWTV's television newscasts in the Oklahoma City market or viewing area.

Enforcement — Remedies, Generally

Title 29 U.S.C. § 626(b) provides in part:

"(b) The provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures provided in sections 211(b), 216 (except for subsection (a) thereof), and 217 of this title, and subsection (c) of this section. Any act prohibited under section 623 of this title shall be deemed to be a prohibited act under section 215 of this title. Amounts owing to a person as a result of a violation of this chapter shall be deemed to be unpaid minimum wages or unpaid overtime compensation for purposes of sections 216 and 217 of this title: Provided, That liquidated damages shall be payable only in cases of willful violations of this chapter. In any action brought to enforce this chapter the court shall have jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter, including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability for amounts deemed to be unpaid minimum wages or unpaid overtime compensation under this section. * * *" Emphasis added

This language empowers the courts to fashion a remedy, suited to the facts of the case at hand, which will best effectuate the purpose of the Act and do justice to the parties. The term "or" placed between the various forms of legal and equitable relief rather than the word "and", further indicates the availability but not automatic application of the remedies. The Court will now proceed to discuss the remedies deemed appropriate under the evidence in this particular case.

Basic Pay and Benefits

On his last full day of employment, (January 2, 1976) Combes was paid $485.00 per week, plus minimum increases and cost of living increases. However, beginning on January 3, 1976, the day of his actual termination, a new method of computing his pay would have gone into effect, and he had been so notified by KWTV management on December 20, 1974. Under the new formula Combes would have received $1,667.47 as a monthly base salary (being $20,000 annually) plus a "talent" fee of $10 for each show actually performed. Combes was performing ten shows a week so that the talent fee could have amounted to $5,200 per year in addition to his base salary. On the date of his discharge Combes was paid severance pay computed on the "old" pay formula which had prevailed through his last full day of employment.

Combes urges that the "old" pay formula be used in measuring the amount of back pay, claiming that it was the formula in existence at the time of his actual discharge and had been the basis of his severance pay.

The fact is that it was January 3, 1976 when Combes was discharged. On that day the new pay formula was to go into effect. Thus, had Combes not been discharged he would have been paid on that day and thereafter under the new formula.

"Back pay is measured by the difference between the salary an employee would have received but for a violation of the Act and a salary actually received from other employment, less unemployment benefits. The relevant period for measuring back pay begins with the time of the loss of employment as a result of the violation and ends when the affected employee accepts or declines reinstatement." Emphasis added Bishop v. Jelleff Associates, 398 F.Supp. 579 (D.D.C.1974).

Here, Combes lost his employment when he was discharged on January 3, 1975 and the formula to apply in measuring what he would have received but for the discharge is properly the "new" pay formula which would have determined his pay had he remained on the job.

In addition to his base salary and talent fees, Combes would have also received 6% increases and cost of living increases in addition to receiving the benefits of company paid health and life insurance premiums.

The period for which Combes is entitled to all such back salary and other payments and benefits is from January 3, 1975, the date he lost his employment, to the date of trial of the issue of appropriate relief, September 21, 1976. Monroe v. Penn-Dixie Cement Corporation, 335 F.Supp. 231 (N.D. Ga.1971). However, since the wages paid at the date of termination included vacation pay and separation pay through February 6, 1975, the actual beginning date for computation of back wages is February 7, 1975. Laugesen v. Anaconda Company, 510 F.2d 307 (6th Cir. 1975).

During his period of entitlement to back wages and other benefits, Combes was employed by the Oklahoma Educational Television Authority from September 1, 1975 to June 30, 1976, earning $11,200. The Court finds and concludes that this sum will be set off against the back pay and value of other benefits herein awarded. Brennan v. Ace Hardware Corp., 495 F.2d 368 (8th Cir. 1974).

The Court finds that Combes is entitled to back pay, including minimum 6% increases and cost of living increases in the sum of $35,888.21, talent fees in the sum of $8,000.00, net value of insurance benefits in the sum of $811.95, and profit sharing benefits in the sum of $770.46, totalling $45,470.62, less earnings from other employment, $11,200., for a total of $34,270.62.

Accordingly, the Court finds, concludes and orders that plaintiff have and recover judgment against the defendant in the sum of $34,270.62 as his back pay and benefits herein specified.

Liquidated Damages

29 U.S.C. § 626(b) provides that the ADEA shall be enforced in accordance with the powers, remedies, and procedures provided in enumerated sections of the Fair Labor Standards Act of 1938 (FLSA), as amended. There is the added provision, however, that liquidated damages shall be payable only in cases of willful violations.

To give effect to the jury verdict, and upon the Court's own findings from the evidence, the Court concludes that KWTV's discharge of Combes was "intentional, knowing and voluntary" as distinguished from accidentally or unknowingly done. Hodgson v. Hyatt, 318 F.Supp. 390 (N.D. Fla.1970).

Having found the discharge to have been willful, the question becomes whether or not the Court must impose liquidated damages in the full amount of back wages and benefits or has the discretion to not impose liquidated damages or to impose them in some lesser amount.

The Court finds that it has discretion to avoid the harsh remedy of absolute imposition of liquidated damages in the full amount of back pay and benefits, under section 11 of the Portal-to-Portal Act of 1947 (PPA), 29 U.S.C. § 260, which effectively amended section 16(b) of the FLSA, 29 U.S.C. § 216(b). Hays v. Republic Steel Corp., 531 F.2d 1307 (5th Cir. 1976). Section 260 provides:

"In any action commenced prior to or on or after the date of the enactment of this Act May 14, 1947 to recover unpaid minimum wages, unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act of 1938, as amended 29 USC §§ 201-216, 217-219, 557, if the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the Fair Labor Standards Act of 1938, as amended 29 USC §§ 201-216, 217-219, 557, the court may, in its sound discretion, award no liquidated damages or award any amount thereof not to exceed the amount specified in section 16 of such Act 29 USC § 216."

Since subsection 7(b) of the ADEA, 29 U.S.C. § 626(b), makes reference to the remedies of the FLSA as amended, the flexibility achieved through the PPA is available in cases under the ADEA. Thus, section 11 of the PPA, 29 U.S.C. § 260, gives the court discretion to award no liquidated damages or to award liquidated...