Black v. Waterman, 02CA0172.

• Decision Date: 27 March 2003
• Docket Number: No. 02CA0172.,02CA0172.
• Parties: Chrystal Y. BLACK, Plaintiff-Appellant, v. Warren WATERMAN, as Sheriff of the Montrose County Sheriff's Department; and G.R. Rowan, in his individual capacity, and as undersheriff of the Montrose County Sheriff's Department, Defendants Appellees.
• Court: Colorado Court of Appeals

83 P.3d 1130

Chrystal Y. BLACK, Plaintiff-Appellant, v. Warren WATERMAN, as Sheriff of the Montrose County Sheriff's Department; and G.R. Rowan, in his individual capacity, and as undersheriff of the Montrose County Sheriff's Department, Defendants Appellees.

No. 02CA0172.

Colorado Court of Appeals, Div. III.

March 27, 2003.

Killian and Guthro, P.C., J. Keith Killian, James P. Guthro, Beecher Threatt, Grand Junction, Colorado, for Plaintiff-Appellant.

Younge & Hockensmith, P.C., Earl G. Rhodes, Jodie L. Behrmann, Grand Junction, Colorado, for Defendant-Appellee Warren Waterman.

No Appearance for Defendant-Appellee G.R. Rowan.

Opinion by Judge WEBB.

In this employment discrimination case, plaintiff, Chrystal Y. Black, appeals from the judgment entered on a jury verdict in her favor on liability, but awarding no compensatory damages against defendants, Warren Waterman, Montrose County Sheriff, and G.R. Rowan, Montrose County undersheriff. She also appeals from the trial court's orders declining to award her back pay or front pay damages and denying her motion for a new trial on compensatory damages. We affirm in part, reverse in part, and remand for further proceedings.

Plaintiff worked as a dispatcher and administrative assistant in the sheriff's office for several years until the sheriff discharged her after she complained of sexual harassment by the undersheriff. Plaintiff also asserted that she was subjected to various retaliatory actions, culminating in her discharge. Defendants presented evidence of plaintiff's complicity in some inappropriate workplace conduct, of her consensual relationship with the undersheriff, and of a nondiscriminatory reason for her discharge.

The jury found that the undersheriff discriminated against plaintiff by sexually harassing her or exposing her to a hostile work environment and that the sheriff retaliated against her for complaining of unlawful conduct.

After the jury returned its verdict, plaintiff filed a motion that the trial court award her back pay and front pay and a motion for a new trial on compensatory damages. The court denied both motions.

I. Back Pay and Front Pay

Plaintiff first argues the trial court misapplied the law in denying her back pay and front pay on the bases that she was not the prevailing party and the jury did not award compensatory damages. We agree with plaintiff and conclude that a remand to reconsider awarding back pay and front pay is required.

We examine trial court damage awards in employment discrimination cases arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, for abuse of discretion, but review underlying legal questions de novo. United States E.E.O.C. v. W & O, Inc., 213 F.3d 600 (11th Cir.2000).

As relevant here, 42 U.S.C.A. § 1981a; Civil Rights Act of 1964, § 706(g), as amended, 42 U.S.C.A. § 2000e-5(g) provides that a plaintiff who establishes employment discrimination "may" obtain equitable relief including reinstatement and back pay. Although front pay is not expressly listed as a remedy in Title VII, the power to grant equitable relief has been interpreted as including front pay. McCue v. Kansas, 165 F.3d 784 (10th Cir.1999).

Back pay is determined by measuring the difference between a plaintiff's actual earnings and the earnings that would have been received, but for discrimination, to the date of judgment. Gotthardt v. Nat'l R.R. Passenger Corp., 191 F.3d 1148 (9th Cir. 1999). Front pay can be awarded for compensation that will be lost from the judgment date until reinstatement or, in lieu of reinstatement, until the plaintiff's earning capacity has fully recovered from the effects of discrimination. Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 121 S.Ct. 1946, 150 L.Ed.2d 62 (2001).

The Civil Rights Act of 1991, 42 U.S.C. § 1981a(a)(1), amended Title VII by allowing for recovery of compensatory and punitive damages. Compensatory damages involve mental and emotional suffering. 42 U.S.C. § 1981a. Congress recognized that compensatory and punitive damages may be especially appropriate in sexual harassment cases where neither back pay nor front pay has been lost. See H.R.Rep. No. 102-40 (1991), U.S.Code Cong. & Admin.News 1991, 549.

The 1991 Civil Rights Act also made a jury trial available as to liability, compensatory damages, and punitive damages. However, relief under § 706(g) of Title VII is equitable and can be awarded only by the court. See, e.g., McCue v. Kansas, supra

(equitable remedies include back pay and front pay, while legal remedies include compensatory and punitive damages).

These legal and equitable remedies differ in that back pay and front pay are not subject to the caps on recovery of compensatory damages set forth in the 1991 Civil Rights Act, are not considered elements of compensatory damages, and do not count against the compensatory damages caps. Pollard v. E.I. du Pont de Nemours & Co., supra; Medlock v. Ortho Biotech, Inc.,

164 F.3d 545 (10th Cir.1999).

Courts indulge a strong presumption that a plaintiff who has proved discrimination is entitled to back pay to the date of judgment. E.E.O.C. v. Wilson Metal Casket Co., 24 F.3d 836 (6th Cir.1994); Nord v. U.S. Steel Corp., 758 F.2d 1462 (11th Cir.1985). However, in its discretion a trial court may deny back pay to a successful Title VII plaintiff. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975)

.

Trial courts enjoy considerable discretion in determining the availability and amount of front pay because the court must predict future events and consider complicated and interlocking factors. McCue v. Kansas, supra; Mason v. Okla. Tpk. Auth.,

115 F.3d 1442 (10th Cir.1997).

Here, the trial court held plaintiff was not entitled to back pay or front pay:

This windfall amount is claimed after a jury, having heard all the evidence, found in its verdict that the Plaintiff incurred no damages. Even though the jury determined that the Plaintiff was subjected to sexual harassment from the actions of Undersheriff Rowan and to retaliatory action by Sheriff Waterman, she sustained no damages. It would be a strange outcome to award her $313,684.00 merely for bringing this action when a jury of her peers, after hearing her testimony, held that she had "0" damages. The Defendant Waterman contends ... that the Plaintiff was, in fact, not the prevailing party in this action. The Court agrees with the Defendant. The Plaintiff did not receive any monetary damages nor nominal damages in the jury's verdict. The Court is now being requested to reach a different conclusion than that of the jury. Without a monetary recovery as determined by a jury verdict, the Plaintiff simply has not prevailed and, hence, is not entitled to an award of back pay and front pay.

We conclude the trial court applied two incorrect legal standards.

First, plaintiff prevailed because she received a verdict on detailed special interrogatories finding defendants discriminated and retaliated against her. See Gudenkauf v. Stauffer Communications, Inc., 158 F.3d 1074 (10th Cir.1998)

(a verdict in favor of plaintiff constitutes a victory on a significant legal issue and serves a public purpose, even if plaintiff receives no damages).

Second, courts may award back pay and front pay even though the plaintiff recovers no compensatory damages. See, e.g., Amantea-Cabrera v. Potter, 279 F.3d 746 (9th Cir.2002)

; Corti v. Storage Tech. Corp., 304 F.3d 336 (4th Cir.2002); United States E.E.O.C. v. W & O, Inc., supra; Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d 1344 (7th Cir.1995).

Back pay and front pay preexisted compensatory damages, which constitute an additional form of relief. See Pollard v. E.I. du Pont de Nemours & Co., supra. Thus, even in the absence of compensatory damages, back pay and front pay may still be necessary to effectuate Title VII's purposes of eradicating employment discrimination and making a discrimination victim whole. Cf. Albemarle Paper Co. v. Moody, supra

(identifying purposes of relief under Title VII).

Accordingly, we conclude the reasons articulated by the trial court to deny plaintiff equitable relief are legally insufficient, and therefore on remand the trial court must reconsider an award of back pay and front pay. The trial court can better address arguments in defendants' answer brief, such as whether retaliation caused any wage loss, whether plaintiff would have been discharged in any event, and whether plaintiff's unclean hands preclude equitable relief, assuming, without deciding, that the verdict does not foreclose some or all of these arguments.

In this regard, we note that, if the trial court declines to award back pay or front pay, it must "carefully articulate its reasons." Albemarle Paper Co. v. Moody, supra, 422 U.S. at 422 n. 14, 95 S.Ct. at 2373; see also Estate of Pitre v. W. Elec. Co., 975 F.2d 700 (10th Cir.1992)

; E.E.O.C. v. Rath Packing Co., 787 F.2d 318 (8th Cir.1986).

II. New Trial on Compensatory Damages

Plaintiff next contends the trial court committed various errors in denying her motion for a new trial on compensatory damages. We agree only that the trial court erred in striking an affidavit that described possible juror misconduct during voir dire and remand for further proceedings on that issue, as discussed in subsection E below. Otherwise, we find no error.

A.

Plaintiff argues the trial court erred in refusing a new trial pursuant to C.R.C.P. 59(d)(1) because an instruction misled the jury. However, plaintiff has not preserved this issue for appeal.

Under C.R.C.P. 51, a party must make all objections to a proposed jury instruction before the instructions are submitted to the jury. Except in very rare circumstances, only these objections are proper for consideration in a motion for a new trial, on appeal, or on certiorari. See Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579 (Colo.1984)

; Robinson v. City & County of Denver, 30 P.3d 677 (Colo.App....