Denton v. Boilermakers Local 29

• Decision Date: 01 October 1987
• Docket Number: Civ. A. No. 84-2760-WF.
• Citation: 673 F. Supp. 37
• Parties: Horace DENTON, Plaintiff, v. BOILERMAKERS LOCAL 29, Defendant.
• Court: U.S. District Court — District of Massachusetts

673 F. Supp. 37

Horace DENTON, Plaintiff, v. BOILERMAKERS LOCAL 29, Defendant.

Civ. A. No. 84-2760-WF.

United States District Court, D. Massachusetts.

October 1, 1987.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Paul L. Nevins, Philip R. Olenick, Boston, Mass., for plaintiff.

Paul F. Kelly, Segal, Roitman & Coleman, Boston, Mass., Steve A.J. Bukaty, Blake & Uhlig, Kansas City, Kan., for defendant.

MEMORANDUM AND ORDER

WOLF, District Judge.

On September 5, 1986, this court found that the defendant Boilermakers Local 29 discriminated against the plaintiff Horace Denton on account of his race in violation of Title VII, 42 U.S.C. § 2000e et seq. Denton v. Boilermakers, 650 F.Supp. 1151 (D.Mass.1986). In connection with this determination, the court also found that reinstatement is impracticable because of the hostility between the parties. Id. at 1162. The court directed the parties to try to reach agreement with respect to damages and attorney's fees. On February 9, 1987, the court met with the parties and it was agreed that an evidentiary hearing was necessary to supplement the record to determine damages. The hearing was held June 10, 1987. Additional briefing was required after the hearing.

Upon consideration of the evidence and arguments presented, the court has decided to order an award of (1) back pay in the amount of $52,776.78; (2) prejudgment interest in the amount of $12,138.48; (3) attorney's fees to Paul Nevins in the amount of $18,225 and to Phillip Olenick in the amount of $15,600. Front pay is not justified in this case.

I. DAMAGES

A. The Generally Applicable Standards

The appropriate remedy for violation of Title VII is a matter of discretion for the court. Section 2000e-5(g) of 42 U.S.C. provides that "the court may ... order such affirmative action as may be appropriate, which may include, but is not limited to reinstatement or hiring of employees, with or without back pay.... Interim earnings or amounts earnable with reasonable diligence by the person ... discriminated against shall operate to reduce the back pay otherwise allowable." The objective is "to make the victims of unlawful discrimination whole by restoring them, so far as possible to a position where they would have been were it not for the unlawful discrimination." Ford Motor Co. v. EEOC, 458 U.S. 219, 230, 102 S.Ct. 3057, 3065, 73 L.Ed.2d 721 (1982).

The Supreme Court has emphasized that the "court must exercise this discretionary power `in light of the larger objectives of the Act.'" Ford, 458 U.S. at 226, 102 S.Ct. at 3063. Lower courts have interpreted this requirement to indicate that while back wages are not to be automatically given, they should "normally be awarded unless special circumstances are present." Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 253 (5th Cir.1973).

The plaintiff has the initial burden of proving the defendant owes him back pay. Durden v. Bouligny, 22 F.E.P. 1455, 1459 (N.D.Fl.1979). "This requires positive proof that plaintiff was ordinarily entitled to the wages in question and, being without fault, would have received them in the ordinary course of things but for the inequitable conduct of the party from whom the wages are claimed." Jinks v. Mays, 464 F.2d 1223, 1226 (5th Cir.1972). The burden is one of "just and reasonable inference." Kolb v. Goldring, 694 F.2d 869, 874 (1st Cir.1982). With regard to the issue of the amount of back pay to be awarded, "it is sufficient if a reasonable basis of computation was afforded, although the result be only approximate." Id.

"Once the gross amount of back pay owed plaintiff has been determined, the burden shifts to the defendant to prove what should be deducted therefrom as `interim earnings or amounts earnable with reasonable diligence.'" E.E.O.C. v. Kallir, 420 F.Supp. 919, 924 (S.D.N.Y.1976) aff'd without op. 559 F.2d 1203 (2d Cir. 1977) cert. denied, 434 U.S. 920, 98 S.Ct. 395, 54 L.Ed.2d 277 (1977); Thurber v. Jack Reilly's, 521 F.Supp. 238, 240-42 (D.Mass.1981), aff'd, 717 F.2d 633 (1st Cir. 1983) cert. denied, 466 U.S. 904, 104 S.Ct. 1678, 80 L.Ed.2d 153 (1984); ("It is well established that the wilfull loss of earnings is an affirmative defense and the burden of proving it rests with the employer.").

In addition, as a general rule, "where one's conduct has prevented a precise computation of damages, the injured party is not to be deprived of adequate damages. The trier of fact may draw reasonable inferences from relevant facts, and all doubts are to be resolved in favor of the injured party; the wrongdoer does not become the beneficiary of his own wrongful conduct." Kallir, 420 F.Supp. at 923. See also Thurber, 521 F.Supp. at 242; Goss v. Exxon Office Systems, 747 F.2d 885, 889 (3rd Cir.1984) ("The risk of lack of certainty with respect to projections of lost income must be borne by the wrongdoer not the victim."); Durden, 22 F.E.P. at 1460 ("Exact mathematical certainty, though, is not required when computing a back pay award, and `uncertainties in determining what an employee would have earned but for the discrimination should be resolved against the discriminating employer.'").

The court has the discretion to award prejudgment interest on a back pay award if it is necessary to make the plaintiff whole. See e.g., Conway v. Electro-Switch Corp., 825 F.2d 593, 602 (1st Cir. 1987).

Front pay—that is pay for economic damages likely to be sustained in the future as a result of discrimination—is to be awarded if reinstatement is not feasible and such a monetary award is neccesary to assure that the "plaintiff is returned as nearly as possible to the economic situation s/he would have enjoyed but for the illegal discrimination." Wildman v. Lerner Stores, 771 F.2d 605, 615 (1st Cir.1985).

B. Back Pay: Plaintiff's Initial Burden

1. Average Earnings

In its September 5, 1986 Order this court found it appropriate to calculate back pay from August 4, 1981. Denton, 650 F.Supp. at 1162 n. 9. The parties have agreed to use as a comparison group for back pay calculation similarly situated boilermaker journeymen listed in Trial Exhibit 30. See Trial Transcript, Vol. IV, p. 40. These boilermakers and Denton had each accumulated 4000 hours of experience prior to the Fall of 1982 when all but Denton were granted journeyman status.

In determining the appropriate back pay, the court must first decide whether the proper measure of back pay is what the average boilermaker in the comparison group earned during the relevant time period, or what the highest paid member of the comparison group earned. At the hearing held on February 9, 1987, the plaintiff's attorney suggested that the court use "some average of salaries to compute backpay." Transcript of February 9, 1987 Hearing at 4. Nevertheless, the plaintiff subsequently asked the court to use the highest salary of anyone in the comparison group because, it is claimed, the plaintiff is "very diligent and industrious." Plaintiff's June 19, 1987 Submission on Damages and Fees at 2. The court concludes that the average boilermaker in the comparison group provides the proper standard in this case.

In Johnson v. Ryder Truck Lines, 30 F.E.P. 659 (W.D.N.C.1980) Available on WESTLAW, 1980 WL 215, the district court was presented with a similar question. The court stated, "although, given the discretion allowed extra board drivers to work as hard as they wish, it is possible that some or all of the plaintiffs might have earned more than the average earnings of extra board drivers, I believe that the average extra board earnings will provide the best measurement of what a driver most likely would have earned at Ryder during the pertinent time period." Id. at 668. See also Durden v. Bouligny, 22 F.E.P. 1455, 1459 (N.D.Fla.1979). The same conclusion is appropriate here. While the evidence at trial showed Denton was a good worker, it did not indicate he was the hardest worker. Thus, the average similarly situated boilermaker provides the proper comparison.

Also in dispute is whether the average hours in the comparison group are misleading because some of the people included were not "actively working" as boilermakers during the time period. See Johnson, 30 F.E.P. at 665. The plaintiff contests the inclusion of four individuals. The defendant represents that one of the four, Depesa, was not included in the comparison group. Letter from Paul Kelly to the court (April 16, 1987). No evidence was presented by the plaintiff to suggest that any of the other three individuals were not actively working as boilermakers. The court therefore includes those three men in the comparison group.

2. Fringe Benefits

The court must also consider whether it is within its discretion to include fringe benefits in the calculations, and if so, which benefits. At issue are pension fund payments and annuity fund payments. At the evidentiary hearing on June 10, 1987, the parties agreed that health benefits were not at issue.

The court finds it has the discretion to include pension benefits in the calculation, and does so. See Syvock v. Milwaukee Boiler Mfg. Co., 665 F.2d 149, 161 (7th Cir.1981); Kallir, 420 F.Supp. 919, 924 (S.D.N.Y.1976). See also Loeb v. Textron, 600 F.2d 1003, 1021 (1st Cir.1979) (court found pension benefits recoverable under the ADEA). In addition, the annuity benefits fund should be included if Denton is to be fully compensated for the damage caused by defendant's discrimination. See e.g. Vant Hul v. City of Dell Rapids, 465 F.Supp. 1231, 1233 (D.S.D.1979); Love v. Pullman Co., 13 F.E.P. 423, 426 (D.Colo. 1976) Available on WESTLAW, 1976 WL 620; Larson, Employment Discrimination at 55.37(b)(ii); Special Project, Back Pay in Employment Cases, 35 Vand.L.Rev. 893, 1005-7 (1982). The court realizes, however, that the annuity fund was not instituted until October 1985.

3. Damage Chart

Given these conclusions, the following chart reflects a breakdown of the comparison groups' earnings:

                1. AVERAGE

...