Rogers v. Ac Humko Corp.

• Decision Date: 25 June 1999
• Docket Number: No. 98-2373-M1/V.,98-2373-M1/V.
• Citation: 56 F.Supp.2d 972
• Parties: James Robin ROGERS, Plaintiff, v. AC HUMKO CORP., et al., Defendants.
• Court: U.S. District Court — Western District of Tennessee

56 F.Supp.2d 972

James Robin ROGERS, Plaintiff, v. AC HUMKO CORP., et al., Defendants.

No. 98-2373-M1/V.

United States District Court, W.D. Tennessee, Western Division.

June 25, 1999.

Hite McLean, Jr., Law Offices of Hite McLean, Jr., Memphis, TN, for James Robin Rogers, plaintiff.

Stuart A. Wilson, Shuttleworth Wilkinson & Wilson, Memphis, TN, Thomas H. Wilson, Christopher V. Bacon, Vinson & Elkins, Houston, TX, for AC Humko Corp, defendant.

David A. Thornton, Kimberly D. Brown, Armstrong Allen Prewitt Gentry, Johnston & Holmes, Memphis, TN, for Cigna Healthcare of Tennessee, Inc., defendant.

ORDER ON DAMAGES

McCALLA, District Judge.

A four-day trial was held in this matter in February, 1999. The trial was limited to issues of Defendant A.C. Humko's liability to Plaintiff James Robin Rogers in connection with his termination under the Age Discrimination in Employment Act, ("ADEA"), 29 U.S.C. §§ 621-634 and the Tennessee Human Rights Act ("THRA"), TENN.CODE ANN. §§ 4-21-101 to 1004, as well as under the Family Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601-2654.¹

The jury returned a verdict finding in favor of Defendant on Plaintiff's ADEA claim and pendent state law claim. However, the jury found by a preponderance of the evidence that Defendant's termination of Plaintiff violated the FMLA as the termination was found to be in retaliation for Plaintiff taking leave protected by the Act. Jury resolution of the issue of damages was waived by the parties. The Court held a damages hearing on Friday, April 23, 1999. Two witnesses were heard, Deborah Welch and Plaintiff, and the Court accepted various exhibits into evidence.

Background

Plaintiff was actively employed with Defendant until April 25, 1997. On that date, Plaintiff visited a doctor because of a serious health condition which involved his legs. Upon advice of his doctor, Plaintiff applied for short term disability leave. Plaintiff was placed on short term disability leave as of April 28, 1997. Defendant terminated Plaintiff on May 6, 1997 in retaliation for his taking leave protected by the FMLA, as found by the jury.²

Plaintiff was on sick leave or short term disability until September 6, 1997, during which time he continued to receive his full salary and benefits. From that date until October 26, 1997, Plaintiff received short term disability in the amount of two-thirds of his $77,000 base pay at the time of his termination. After October 26, 1997, Plaintiff began receiving long-term disability benefits under Defendant Humko's Long Term Disability Plan (LTDP) in the amount of sixty percent of his base pay. On December 5, 1998, the Social Security Administration determined that Plaintiff was entitled to monthly disability benefits as of October, 1997. As Defendant Humko's LTDP required an offset for any Social Security award of benefits, Plaintiff's LTDP benefits were reduced accordingly so that Plaintiff's overall benefits remained constant.

Plaintiff had successful surgery for his serious health condition in December, 1998, and has recuperated from the surgery. While he continues to suffer from some pain, Plaintiff does not presently have a serious health condition.

Discussion

For Defendant's retaliatory discharge, Plaintiff seeks back pay, prejudgment interest, and liquidated damages, reinstatement or front pay, and compensatory damages for emotional distress.³ For Defendant allegedly presenting an affidavit in bad faith in support of a motion for summary judgment, Plaintiff seeks sanctions under Federal Rule of Civil Procedure 56(g). Each sought relief is addressed in turn.

Plaintiff's Relief for Defendant's Retaliation

The twin purposes of the FMLA are to "balance the demands of the workplace with the needs of families" and "to entitle employees to take reasonable leave for medical reasons" in a manner "that accommodates the legitimate interests of employers." 29 U.S.C. § 2601(b)(1)-(3) Among the findings prompting the Act was Congress's belief that "there is inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods." 29 U.S.C. § 2601(a)(4).

Under the FMLA, an eligible employee is permitted up to twelve weeks of unpaid leave during any 12-month period due to a "serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D).⁴

Upon completion of FMLA leave, the FMLA provides that an employee shall be restored to the position held when the leave commenced or to an equivalent position. See 29 U.S.C. § 2614(a)(1). However, implementing regulations promulgated by the U.S. Department of Labor provide that "[i]f the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition, the employee has no right to restoration to another position under the FMLA." 29 C.F.R. § 825.214(b); see also Tardie v. Rehabilitation Hosp. of Rhode Island, 168 F.3d 538, 544 (1st Cir. 1999); Parker v. Sony Pictures Entertainment, Inc., 19 F.Supp.2d 141, 153 (S.D.N.Y.1998); Watkins v. J & S Oil Co., Inc., 977 F.Supp. 520, 523 (D.Me.1997); Voskuil v. Environmental Health Ctr. — Dallas, No. 3:96-CV-0683-D, 1997 WL 527309, at *9 (N.D.Tex. Aug.18, 1997); Beckendorf v. Schwegmann Giant Super Markers, Inc., No. 95-3822, 1997 WL 191504, at *3 (E.D.La. Apr.21, 1997); Soodman v. Wildman, Harrold, Allen & Dixon, No. 95 C 3834, 1997 WL 106257, at *8 (N.D.Ill. Feb.10, 1997); Urbano v. Continental Airlines, Inc., No. H-95-3508, 1996 WL 767426, at *4 (S.D.Tex. Nov.1, 1996).

The FMLA states that "[i]t shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter." 29 U.S.C. § 2615(a)(2). In particular, "[a]n employer is prohibited from discriminating against employees ... who have used FMLA leave." 29 C.F.R. § 825.220(c). In this case, the jury's verdict establishes that Defendant terminated Plaintiff because he took leave protected by the FMLA, a violation of 29 U.S.C. § 2615(a)(2).

With regard to damages for a violation of the FMLA, the Act provides:

(a) Civil action by employees

(1) Liability

Any employer who violates section 2615 of this title shall be liable to any eligible employee affected —

(A) for damages equal to —

(i) the amount of —

(I) any wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation; or

(II) in a case in which wages, salary, employment benefits, or other compensation have not been denied or lost to the employee, any actual monetary losses sustained by the employee as a direct result of the violation, such as the cost of providing care, up to a sum equal to 12 weeks of wages or salary for the employee;

(ii) the interest on the amount described in clause (i) calculated at the prevailing rate; and

(iii) an additional amount as liquidated damages equal to the sum of the amount described in clause (i) and the interest described in clause (ii), except that if an employer who has violated section 2615 of this title proves to the satisfaction of the court that the act or omission which violated section 2615 of this title was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of section 2615 of this title, such court may, in the discretion of the court, reduce the amount of the liability to the amount and interest determined under clauses (i) and (ii), respectively; and

(B) for such equitable relief as may be appropriate, including employment, reinstatement, and promotion.

29 U.S.C. § 2617.

Defendant argues that despite its retaliatory discharge in violation of the FMLA, any damages awarded to Plaintiff should be limited since, as argued by Defendant, Plaintiff could not have returned to work July 22, 1997, the day after Plaintiff's 12 weeks of FMLA leave, because of his continuing serious health condition.

In response, Plaintiff asserts that had he been offered his old job back, he could have returned to full-time work with certain concessions which had already been provided him by Humko prior to his termination. These concessions included the ability to vary his activities throughout the day, to minimize job-related travel, and to schedule doctors' visits as needed.

"A backpay award should make the claimant whole, that is, to place him in the position he would have been in but for discrimination." Rasimas v. Michigan Dep't of Mental Health, 714 F.2d 614, 626 (6th Cir.1983). An award of backpay "is ordinarily a presumptive entitlement of a plaintiff who successfully prosecutes an employment discrimination case," Thurman v. Yellow Freight Systems, Inc., 90 F.3d 1160, 1171, amended, 97 F.3d 833 (6th Cir.1996), and "[a]ny ambiguity in what the claimant would have received but for discrimination should be resolved against the discriminating employer." Rasimas, 714 F.2d at 628.

In the context of a backpay award, this Court finds that the question of Plaintiff's ability to work after having taken FMLA leave is analogous to the one posed when a court considers the possible application of the after-acquired evidence doctrine, which is enunciated in McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995). Under the after-acquired evidence doctrine, "[w]here an employer can show that it would have been entitled to terminate the employee for severe wrongdoing, if it had known of the employee's wrongdoing at the time, the employee's remedies for discrimination are limited." Thurman, 90 F.3d at 1168. "In determining appropriate remedial action, the employee's wrongdoing becomes relevant not to punish the employee, or out of concern for the relative moral worth of the parties, but to take due account of the lawful prerogatives of the employer...