Equal Emp't Opportunity Comm'n v. Parker Drilling Co.

• Decision Date: 29 May 2015
• Docket Number: Case No. 3:13-cv-00181-SLG
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, and, KEVIN D. MCDOWELL, Plaintiff-Intervenor, v. PARKER DRILLING COMPANY, Defendant.
• Court: U.S. District Court — District of Alaska

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,and,KEVIN D. MCDOWELL, Plaintiff-Intervenor, v. PARKER DRILLING COMPANY, Defendant.

Case No. 3:13-cv-00181-SLG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA

May 29, 2015

MEMORANDUM OF DECISION & ORDER RE EQUITABLE RELIEF

This case was initially brought by the Equal Employment Opportunity Commission under the Americans with Disabilities Act, 42 U.S.C. 12101 et seq. ("ADA"). The EEOC's Complaint was filed on September 18, 2013.¹ By order dated February 27, 2014, Kevin McDowell was permitted to intervene as an additional Plaintiff in the case. His Complaint, filed the following day, included an ADA claim as well as a claim pursuant to Alaska Statute 18.80.220(a)(1).²

The case relates to an employment decision that Parker Drilling made with respect to Mr. McDowell in early 2010. Plaintiffs alleged that Parker Drilling discriminated against Mr. McDowell at that time when it rescinded a job offer to him for a manager position onan oil rig because it regarded Mr. McDowell as having a disability due to the fact that he has monocular vision.

The parties agreed that federal law provides that the determination of liability and the amount of any non-economic losses are issues for a jury, while the determination of any award for economic losses and the propriety and scope of any injunctive relief are equitable remedies to be determined by the Court. To the extent a party may have had a right to a jury trial on the economic losses to award under state law, each party specifically waived that right on the record during the trial.

Accordingly, a jury trial on the issues of liability and compensatory and punitive damages began on March 25, 2015 and concluded on April 2, 2015.³ The jury reached a verdict in which it concluded that Kevin McDowell had proven his disability claim under Alaska law, but awarded no non-economic damages for that claim. The jury also found that Plaintiffs had proven their claim that Parker Drilling had violated the ADA, and found that Mr. McDowell was entitled to $15,000 in non-economic damages for that claim. And the jury found that an award of punitive damages was not warranted.⁴

While the jury trial was proceeding, the parties also presented evidence to the Court outside the presence of the jury with respect to Plaintiffs' claims for equitable relief, including an award of economic damages to Mr. McDowell and prospective injunctive relief to the EEOC.⁵ In addition, the parties submitted post-trial briefing to the Court thatfocused on Mr. McDowell's obligation to obtain and maintain "substantially similar employment" when determining past economic loss and on the EEOC's claim for injunctive relief.⁶ This Memorandum is intended to address all of those claims.

Federal Rule of Civil Procedure 52(a) provides that "[i]n an action tried on the facts without a jury . . . the court must find the facts specially and state its conclusions of law separately." Accordingly, and having considered the testimony of the witnesses, the exhibits admitted into evidence, and the parties' submissions, the Court now makes the following Findings of Fact and Conclusions of Law as set forth below.⁷

FINDINGS OF FACT

1. Plaintiffs presented the testimony of EEOC Economist Elvira Sisolak in support of their back pay and front pay calculations. For back pay, Ms. Sisolak computed an amount due of $626,053 from February 2010 through March 2015. She first computed the amount of back pay plus lost benefits that she determined Mr. McDowell would have earned had he worked at Parker Drilling during that time frame, then determined the amount that Mr. McDowell would have received in mitigation during that same timeframe (including benefits), computed the difference for each year, then added in interest.

2. The Court was not persuaded by Ms. Sisolak's analysis, in large part because she did not rely upon the amount that was actually paid by Parker Drilling to its rig managers during this time period. For example, in 2012, Parker Drilling paid Pat Lynch, a rig manager for Parker Drilling, a total of $166,291 in compensation for that year. (Ex. BU-3). But Ms. Sisolak estimated that Mr. McDowell would have been paid $196,976 from Parker Drilling in 2012—an amount nearly 20% greater. In addition, Parker Drilling demonstrated that it provided each employee with approximately $10,085 in health and welfare benefits, along with 5% of the employee's earnings in matching 401(k) funds (which amounts to $8,315 for Mr. Lynch in 2012) for a total benefits package to Mr. Lynch worth $18,400 for 2012. (Ex. BM) But Ms. Sisolak estimated the value of those lost benefits to Mr. McDowell in 2012 at $78,790—an amount over 4 times greater than the actual value of the benefits Mr. Lynch received. (Ex. 39).⁸ This is only one example as to why the Court declines to adopt Ms. Sisolak's computation of back pay.

3. The Court finds that if Mr. McDowell had been hired on at Parker Drilling in February 2010, he would have received 11 months of income during that year as a Junior Rig Manager. The salary for that position in that year was $109,080, plus a 15% locality bonus, for a total salary of $125,442. 11/12ths of that amount is $114,989.

4. The Court finds it more likely than not that had Mr. McDowell been hired by Parker Drilling in early 2010 as a Junior Rig Manager, he would have started working as a Senior Rig Manager sometime in 2011 and continued in that position through trial in March 2015. The Court bases this finding upon consideration of all the evidence presented at trial, including the following:

a. Mr. McDowell interviewed with Parker Drilling when it was in the midst of crewing-up two new rigs, and therefore it had several positions open for Junior Rig Managers and Senior Rig Managers.

b. In 2010 and 2011, Parker Drilling's wages were considerably below the market rate on the North Slope, and its rigs were not completed. This would make it more likely that an individual with Mr. McDowell's background as a driller would be hired on as a Junior Rig Manager and promoted to Senior Rig Manager sooner than might otherwise be the case.

c. Although Parker Drilling presented evidence that it had experienced a large turnover rate in its Alaska operations when its wage rates were substantially below market, the evidence also demonstrated that the turnover was considerably more pronounced among the less experienced workers, and not among the rig managers.

d. Mr. McDowell persuasively testified that he was an experienced, long term driller on oil rigs, although the Court has also given careful consideration to the incidents of employee discipline both before and after February 2010.

In light of the foregoing, the best indicator of the amount of compensation that Mr. McDowell would have received from January 2011 through March 2015 is the amount that Parker Drilling paid to Patrick Lynch, a rig manager at Parker Drilling during that entire time.

5. In 2014, Mr. McDowell earned $55,908 as a rig manager in the first three months of the year working for Inlet Drilling. On or about May 29, 2014, Mr. McDowell became a consultant for an oil company and continued in that position throughout most of 2014. At trial, he introduced consulting invoices for work performed through October 21, 2004 which totaled $114,125. He testified that did some additional consulting work through December 16, 2014. Based on that evidence,the Court estimates that Mr. McDowell earned additional consulting income above the $114,125 of approximately $30,000 in 2014. Therefore, his total estimated income for 2014, including the first three months he worked at Inlet Drilling, is $200,033. However, Mr. McDowell did not receive any employee benefits after the first three months of the year.

6. Mr. McDowell is entitled to back pay from February 2, 2010 through the time of trial. The evidence established that he remained steadily employed throughout most of that time, and that he had continued to look for work after December 2014, when the consulting job ended, up until trial. The Court finds that throughout that entire five year period, Mr. McDowell used reasonable diligence in seeking and retaining employment. Defendant did not introduce any evidence that there were other suitable higher paying positions available to Mr. McDowell that he failed to use reasonable care and diligence to obtain.

7. No evidence was presented at trial that Mr. McDowell refused a job substantially similar to the one he was denied by Parker Drilling at any time from February 2010 through March 2015.

8. Mr. McDowell continued to fulfill his duty to mitigate damages after he was terminated from Nordic-Calista in September 2013 because he demonstrated reasonable diligence when he promptly sought and obtained substitute employment with Inlet Drilling Alaska within approximately one month of his termination. Therefore, back pay should not be adjusted due to this one-month period of unemployment.

9. Based upon the jury's verdict, the Court's findings, and the applicable law, the Court finds that Mr. McDowell is entitled to back pay benefits for the period from February 2010 through March 2015. Applying the foregoing findings to the income evidence in the record results in the following back pay calculation:

Year

Kevin McDowell's

Earnings

Pat Lynch's

Earnings

Earnings

Difference

2010

$68,660

$114,9899

$46,329

2011

$135,505

$135,942

$437

2012

$134,883

$166,291

$31,408

2013

$134,677

$186,957

$52,280

2014

$200,033

$212,898

$12,865

To 3/31/2015

$0

$53,225

$53,225

Total Earnings Difference = $ 196,544 -- back pay due before benefits and interest

10. From February 2010 through March 2014, the value of the employment benefits that Mr. McDowell received from his employers is comparable to the value of the Parker Drilling benefits he would have received when computed as a percentage of earnings. Based on the evidence presented, the value of these benefits is 10% of the

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