Equal Emp't Opportunity Comm'n v. Beverage Distributors Co.

• Decision Date: 09 December 2013
• Docket Number: Civil Action No. 11-cv-02557-CMA-CBS
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Plaintiff, v. BEVERAGE DISTRIBUTORS COMPANY, LLC, Defendant.
• Court: U.S. District Court — District of Colorado

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Plaintiff, v. BEVERAGE DISTRIBUTORS COMPANY, LLC, Defendant.

Civil Action No. 11-cv-02557-CMA-CBS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

DATED: December 9, 2013

Judge Christine M. Arguello

ORDER GRANTING PLAINTIFF'S MOTION FOR JUDGMENT AS A MATTER OF

LAW AND MOTION FOR INJUNCTIVE RELIEF

This matter is before the Court on Plaintiff Equal Employment Opportunity Commission's ("EEOC") Motion for Judgment as a Matter of Law on Defendant's Failure-to-Mitigate Defense (Doc. # 104) and Motion for Injunctive Relief (Doc. # 105). Both motions are ripe for the Court's review.

I. BACKGROUND

EEOC brought this enforcement action against Defendant Beverage Distributors Company, LLC ("Beverage Distributors") on behalf of Mike Sungaila. EEOC alleged that Beverage Distributors discriminated against Mr. Sungaila in violation of the Americans with Disabilities Act ("ADA") when it withdrew its conditional offer of employment as a Night Warehouse Loader upon being informed that he is legally blind.

This case was tried to a jury in April of 2013. On April 12, 2013, the jury returned its verdict by completing a special verdict form. The jury determined that EEOC provedby a preponderance of the evidence that Beverage Distributors withdrew its conditional offer of employment and/or denied employment to Mr. Sungaila because of his disability and awarded back pay in the amount of $132,347.00. However, the jury reduced that award by $102,803.75 because it determined that Beverage Distributors proved by a preponderance that Mr. Sungaila failed to make reasonable efforts to reduce his damages for loss of back pay. (Doc. # 96.) The Court entered judgment on the verdict on April 15, 2013, awarding $29,543.25 in damages. (Doc. # 98.)

EEOC now moves for judgment as a matter of law alleging that there was insufficient evidence for the jury to consider Beverage Distributor's failure-to-mitigate defense and, therefore, the damage award should be reinstated to award the total back pay amount. In the alternative, EEOC asks this Court to consider the jury's award of back pay as an advisory opinion and award back pay in its discretion. (Doc. # 104.) EEOC also moves for various forms of injunctive relief. (Doc. # 105.)

II. THE ADA

At trial, the jury determined that EEOC proved that Beverage Distributors violated the ADA by withdrawing its offer of employment because of Mr. Sungaila's disability. Remedies for such a violation are those remedies available under Title VII of the Civil Rights Act of 1964. See 42 U.S.C. § 12117(a) (incorporating 42 U.S.C. §§ 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9); Olds v. Alamo Group (KS), Inc., 889 F. Supp. 447, 449 (D. Kan. 1995). Available remedies include, but are "not limited to, reinstatement . . . , with or without back pay . . . , or any other equitable relief as the court deems appropriate." 42 U.S.C. § 2000e-5(g) ("Interim earnings or amountsearnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable."); E.E.O.C. v. Sandia Corp., 639 F.2d 600, 627 (10th Cir. 1980).

III. FAILURE-TO-MITIGATE DEFENSE

A. STANDARD OF REVIEW

A party may make a renewed motion for judgment as a matter of law within twenty-eight days of the entry of judgment. See Fed. R. Civ. P. 50(b). A movant is entitled to judgment as a matter of law only if the evidence would not permit a reasonable jury to find in the non-movant's favor. See Deters v. Equifax Credit Info. Servs., Inc., 202 F.3d 1262, 1268 (10th Cir. 2000); see also Baty v. Willamette Indus., Inc., 172 F.3d 1232, 1241 (10th Cir. 1999) (judgment as a matter of law "is warranted only if the evidence points but one way and is susceptible to no reasonable inferences supporting the party opposing the motion") (internal quotations omitted). Although the court must view the evidence in a light favorable to the non-movant, the court should not re-weigh the evidence, judge witness credibility, or challenge the factual conclusions of the jury. Mason v. Oklahoma Turnpike Auth., 115 F.3d 1442, 1450 (10th Cir. 1997), overruled on other grounds by TW Telecom Holdings Inc., v. Carolina Internet Ltd., 661 F.3d 495 (10th Cir. 2011).

B. DISCUSSION

EEOC first contends that the Court erred in allowing the jury to consider Beverage Distributor's failure-to-mitigate defense because there was insufficient evidence to show that (1) there were jobs available, and (2) there were substantiallycomparable jobs.¹ Because the Court agrees, it does not reach EEOC's alternative argument.

"The purpose of a back pay award is to make the employee whole—i.e., restore the economic status quo that would have obtained but for the wrongdoing on the part of the employer . . . ." Aguinaga v. United Food & Commercial Workers Int'l Union, 993 F.2d 1463, 1473 (10th Cir. 1993) (citing Bowen v. United States Postal Serv., 459 U.S. 212, 222-23 (1983); NLRB v. J.H. Rutter-Rex Mfg. Co., 396 U.S. 258, 263 (1969)). "The remedy of back pay does not constitute a windfall to plaintiff, nor does it award damages based on some amorphous inherent value of her constitutional right to equal protection." Cunico v. Pueblo Sch. Dist. No. 60, 917 F.2d 431, 443-44 (10th Cir. 1990) (internal citations omitted). Although no award can fully compensate a plaintiff for his personal right to equal protection once denied, the award of back pay corresponds most accurately to the injury suffered. Id. (internal citation omitted).

Employees claiming entitlement to back pay and benefits are required to make reasonable efforts to mitigate damages. Sandia Corp., 639 F.2d at 627. Once back pay and benefits have been awarded, the burden is on the employer to show that the claimant did not exercise reasonable diligence in mitigating his or her damages. Id. To satisfy this burden, the employer must establish that: (1) there were suitable positions available which the claimant could have discovered and for which he or she was qualified, and (2) the claimant failed to use reasonable diligence in seeking such positions. Spulak v. K Mart Corp., 894 F.2d 1150, 1158 (10th Cir. 1990); Sandia Corp., 639 F.2d at 627 (citing United States v. Lee Way Motor Freight, Inc., 625 F.2d 918, 937 (10th Cir. 1979)); see also Whatley v. Skaggs Companies, Inc., 707 F.2d 1129, 1138 (10th Cir. 1983), cert. denied, 464 U.S. 938, 104 S.Ct. 349, 78 L.Ed.2d 314 (1983); Eslinger v. U.S. Cent. Credit Union, 866 F. Supp. 491, 499 (D. Kan. 1994). Plaintiff must make only reasonable, good faith efforts to mitigate damages and is not held to the highest standards of diligence. Lee Way Motor Freight, 625 F.2d at 937.

Mr. Sungaila began working as a landscaper approximately one week after having his offer rescinded by Beverage Distributors. Beverage Distributors argued at trial that Mr. Sungaila failed to mitigate his damages by not pursuing another position with similar pay to the Night Warehouse Loader position with its company. EEOC contends, however, that Beverage Distributors did not present sufficient evidence to permit the jury to reduce back pay by $102,803.75. (Doc. # 104, at 3.) In response, Beverage Distributors points to evidence elicited from its expert, Dr. Robin Cook, andin particular, her testimony regarding the Bureau of Labor Statistics ("BLS") statistics that there are 10,000 warehouse positions. (Doc. # 110, at 6.)

Dr. Cook's expert testimony focused on her opinion that Mr. Sungaila could not perform the essential job functions of the Night Warehouse Loader position.² With regard to the mitigation of damages issue, Dr. Cook opined that:

• Mr. Sungaila's earning potential was not diminished;

• in the Denver/Aurora area, people holding driver helper positions earned a mean wage of $12.53 per hour, which was similar to the compensation Mr. Sungaila earned as a Driver's Helper³;

• based on Mr. Sungaila's job history and experience, it was reasonable to conclude he could have earned the mean wage;

• according to BLS, approximately 34 percent of unskilled workers would find work within 5 weeks of job separation and 68 percent would be employed after 14 weeks;

• the unemployment rate in the Denver/Parker area is lower than the national average and the average for the State of Colorado;

• according to BLS there were approximately 10,000 storage-laborer and driver-helper jobs⁴ but most of those positions require the worker to drive a forklift, which Mr. Sungaila cannot do;

• assuming he was capable of the work, Mr. Sungaila could have found another warehouse position 9 months after his separation from Beverage Distributors;• assuming that Mr. Sungaila found replacement employment making compensation comparable to what he would have earned as a Night Warehouse Loader, his lost wages would have been approximately $10,000;

• that she did not consider Mr. Sungaila's vision loss in her analysis of his wage loss;

• that she had not identified a single open position that Mr. Sungaila was qualified for.

The Court rejects Beverage Distributors' assertion that Dr. Cook's testimony provided sufficient evidence that Mr. Sungaila did not mitigate his damages because all that was required was evidence that there were positions in "existence." (Doc. # 110 at 6.) First, the only Tenth Circuit case that Beverage Distributors cites for this proposition is a non-binding order and judgment. Goodman v. Fort Howard Corp., 1994 U.S. App. LEXIS 17507 (10th Cir. July 18, 1994) (order and judgment). Yet, in that same case, and indeed in all other cases this Court has found on the issue, the Tenth Circuit routinely requires that employers prove not a position's existence, but its availability.⁵ To give vitality to the principle of making an employee whole throughback pay, yet requiring that employee to take responsibility for ameliorating his damages, an employer should present some evidence that positions were available and could have been obtained by the employee. Indeed, the Tenth...