Equal Emp't Opportunity Comm'n v. Wal-Mart Stores
| Decision Date | 31 March 2020 |
| Docket Number | 17-cv-739-jdp |
| Parties | EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. WAL-MART STORES, INC. and WAL-MART STORES EAST, L.P.,, Defendant. |
| Court | U.S. District Court — Western District of Wisconsin |
This is an Americans with Disabilities Act suit brought by plaintiff Equal Employment Opportunity Commission (EEOC) on behalf of charging party Paul Reina. A jury found that defendants Wal-Mart Stores, Inc. and Wal-Mart Stores East, LLP (Walmart) failed to provide Paul Reina with a reasonable accommodation and ended his employment because of his disability. Dkt. 197. The jury awarded $200,000 in compensatory damages and $5,000,000 in punitive damages. The case is now before the court on EEOC's request for equitable and injunctive relief for Reina, Dkt. 213, which is determined by the court rather than the jury.
For the reasons explained below, the court will award Reina $41,224.07 in back pay, $58,124.53 in front pay, $4,495.72 in prejudgment interest, and $19,097.14 for tax consequences. The court is denying EEOC's request for a permanent injunction.
Paul Reina, an individual with a disability, worked as a cart-pusher at a Walmart store in Beloit from 1998 to 2015. Reina always worked with a job coach. His coaches included his guardian, Rose Slaght, Matt Coppernoll, Margie Polizzi, and Mike Fallon. Coppernoll was Reina's primary job coach from 2005 to 2015; the others filled in for Coppernoll on a substitute basis.
In early June 2015, the new manager of the Beloit store, Jeff Scheuerell, looked into Reina's work relationship with Coppernoll. Scheuerell met with Slaght, Coppernoll, and Reina on June 12, 2015, to discuss the role of Reina's job coach. At the meeting, Scheuerell gave Slaght an "Accommodation Medical Questionnaire" for Reina's physician to complete. Walmart did not place Reina on the schedule after June 12, 2015, but it provided him with two weeks of paid leave. On July 9, 2015, Slaght returned the medical questionnaire to Scheuerell, whom she alleges told her, Slaght testified that a Walmart representative told her during a March 18, 2016 meeting that the store did not want Reina back. On or about March 25, 2016, Walmart's Accommodation Service Center sent Reina a letter requesting additional information about possible reasonable accommodations. Reina never returned to work at Walmart.
After June 2015, Polizzi tried to secure employment for Reina at Piggy Wiggly and Woodman's. Coppernoll also took Reina to eight to 10 places in search of new work, including Piggly Wiggly, Woodman's grocery store, the Salvation Army, Goodwill, and a number of Dollar Stores. Reina began to build birdhouses with Coppernoll to sell. And about a year later, Reina began working as an independent contractor, delivering newspapers for the Beloit Shopping News. He earns about $100 a month.
Employees who have proven employment discrimination are presumptively entitled to full relief, including back pay. Albarmarle Paper Co. v. Moody, 422 U.S. 405, 421-22 (1975) (); Stragapede v. City of Evanston, Ill., 865 F.3d 861, 868 (7th Cir. 2017) (citing David v. Caterpillar, Inc., 324 F.3d 851, 865 (7th Cir. 2003)) ("A plaintiff who wins a favorable verdict on an ADA claim is presumptively entitled to backpay."); Hutchison v. Amateur Elec. Supply, Inc., 42 F.3d 1037, 1044 (7th Cir. 1994); Horn v. Duke Homes, 755 F.2d 599, 606 (7th Cir. 1985) ().
As the plaintiff, EEOC has the initial burden of establishing the back pay amount, and then the burden "shifts to the defendant to show that the plaintiff failed to mitigate damages or that damages were in fact less than the plaintiff asserts." Hutchison, 42 F.3d at 1044. Back pay does not have to be calculated with unrealistic exactitude, and all uncertainties in the calculations are resolved against the discriminating employer. Stewart v. General Motors Corp. 542 F.2d 445, 452 (7th Cir. 1976); Ortega v. Chicago Bd. of Educ., 280 F. Supp. 3d 1072, 1092-93 (N.D. Ill. 2017).
EEOC seeks back pay for Reina from July 9, 2015, through December 31, 2019, in the amount of $39,095.75, plus $709.44 per month until judgment is entered. Walmart contends that Reina failed to mitigate his damages and that EEOC's wage rate and time period for back pay are not correct. I address these three arguments separately.
To establish the affirmative defense of failure to mitigate damages, Walmart must show both that: (1) Reina failed to exercise reasonable diligence to mitigate his damages, and (2) there was a reasonable likelihood that Reina might have found comparable work by exercising reasonable diligence. Stragepede, 865 F.3d at 868-69; Hutchinson, 42 F.3d at 1044. Walmart argues that Reina has failed to exercise reasonable diligence because he applied for only 12 positions since he last worked at Walmart four and a half years ago, and he has yet to secure comparable employment despite having worked 16 plus years at Walmart.
In support of its argument that Reina likely would have found comparable work had he conducted a more extensive job search, Walmart relies on Occupational Employment Statistics from the Bureau of Labor Statistics showing that 2,240 people were employed in the Beloit/Janesville area as janitors, cleaners, groundskeeping workers, and store clerks as of May 2016. Dkt. 218-1. However, as EEOC points out, these statistics do not represent the actual number of job openings in these fields or include any information about the applicant pool, hours, wages, job duties, or locations of any available positions. See NLRB v. Midwestern Personnel Services, Inc., 508 F.3d 418, 427 (7th Cir. 2007) (); Smith v. Rosebud Farmstand, No. 11-cv-9147, 2016 WL 5912886, at *20 (N.D. Ill. Oct. 11, 2016) (). Walmart has made no effort to show that the janitor, cleaning, or other positions cited in the Bureau of Labor Statistics report aresubstantially equivalent to Reina's former cart pusher position, that Reina has the ability to perform them, or that he could have secured such positions. Accordingly, even though Reina may have applied for only 12 positions in the past four and a half years, Walmart has failed to meet its burden of showing that there was a reasonable likelihood that Reina might have found comparable work by exercising more reasonable diligence in searching for a position.
EEOC uses an average monthly wage rate of $815.17, which it bases on Reina's 2014 annual earnings of $9,782, minus Reina's interim earnings from delivering newspapers and selling birdhouses. Walmart argues that Reina's monthly wage loss should be calculated based on his biweekly earnings for the six months that he worked in 2015 instead of his 2014 earnings. In support of its argument, Walmart cites Gracia v. Sigmatron Int'l, Inc., 130 F. Supp. 3d 1249, 1258 (N.D. Ill. 2015), aff'd, 842 F.3d 1010 (7th Cir. 2016), in which the court rejected plaintiff's proposed use of 2007 rather than 2008 earnings on the ground that the more current wage information "better reflects Garcia's projected work hours and pay going forward than a previous year." However, unlike the plaintiff in Garcia, where plaintiff's wage information was available for "virtually all of 2008," id., Reina worked only a partial year in 2015. Reina's 2015 Earnings History Report shows that he received only 13 pay checks totaling $3,970.15 in regular pay in 2015.1 See Dkt. 218-10 at 2. (Neither party submitted Reina's earnings history report for 2014, but the parties do not dispute that Reina worked all of 2014.)As EEOC points out, Reina's 2015 earnings report shows that his biweekly paycheck varied significantly—from $239.24 to $380.52—and did not include earnings for November and December, which is a busier period for retail stores.
The court agrees with EEOC that Reina's full-year earnings for 2014 provide a more accurate base for Reina's projected earnings. Therefore, the court will use EEOC's proposed wage rate of $815.17 per month, minus $105.73 in interim monthly wages from Reina's alternative employment, for a net of $709.44 per month.
EEOC argues that the correct starting point for the calculation of back pay is July 9, 2015, which is after Reina's paid leave ended and the date on which Slaght returned Reina's medical form to Scheuerrell, who allegedly told Slaght not to call him. Walmart argues that it is unclear what date the jury considered to be the end of Reina's employment and maintains that it never terminated Reina. As a compromise, Walmart proposes that back pay be calculated from March 18, 2016, which is the date on which a Walmart representative allegedly told Slaght that the store did not want Reina back.
The parties generally agree that the purpose of back pay is to make an employee whole for injuries suffered through past discrimination and that back pay typically represents the wages the employee would have earned had Walmart not ended his employment. Albemarle Paper, 422 U.S. at 418-21 (); Ortega, 280 F....
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