Goico v. Boeing Co.

• Decision Date: 07 December 2004
• Docket Number: No. 02-1420-WEB.,02-1420-WEB.
• Citation: 347 F.Supp.2d 986
• Parties: Mario GOICO, Plaintiff, v. THE BOEING COMPANY, Defendant.
• Court: U.S. District Court — District of Kansas

347 F.Supp.2d 986

Mario GOICO, Plaintiff, v. THE BOEING COMPANY, Defendant.

No. 02-1420-WEB.

United States District Court, D. Kansas.

December 7, 2004.

COPYRIGHT MATERIAL OMITTED

Jeff C. Spahn, Jr., Martin, Pringle, Oliver, Wallace & Bauer, LLP, Wichita, KS, for Plaintiff.

Forrest T. Rhodes, Jr., Mikel L. Stout, Foulston Siefkin LLP, Wichita, KS, for Defendant.

Memorandum and Order

WESLEY E. BROWN, Senior District Judge.

This matter is before the court for entry of judgment in light of the jury's special verdict. The court requested briefing from the parties and heard arguments on the issues relating to entry of judgment. The briefs have now been filed and the court is prepared to rule.

Plaintiff Mario Goico brought claims against his employer, the Boeing Company, alleging (among other things): age discrimination under the ADEA (29 U.S.C. § 621 et seq.) and KADEA (K.S.A. § 44-1111); national origin discrimination in violation of 42 U.S.C. § 1981, Title VII (42 U.S.C. § 2000e et seq.) and the KAAD (K.S.A. § 44-1001); and unlawful retaliation in violation of the foregoing statutory provisions. These claims were submitted to a jury, which returned a verdict as follows. The jury found Boeing discriminated against plaintiff on account of his age and that such conduct was willful. It found that Boeing retaliated against plaintiff for complaining of discrimination, and that Boeing did so with malice or reckless indifference to plaintiff's rights such that Boeing should be subject to punitive damages. The jury found Boeing did not discriminate against plaintiff on account of his national origin. The court gave the jury an agreed-upon instruction concerning general damages (See Instruction No. 21). Under that instruction, the jury was told it could award three types of damages if it found for plaintiff on any of his claims: first, back pay (lost wages and benefits up to the date of trial); second, compensatory damages (for emotional pain and mental anguish); and third, future lost wages and benefits (from the time of trial until the date plaintiff was likely to retire). The court also instructed the jury regarding punitive damages. The jury found the following amounts for each of these categories:

1. Back pay — $30,998

2. Compensatory damages — $625,000

3. Future lost wages and benefits — $370,437

4. Punitive Damages — $1,500,000.

I. Issues Relating to Entry of Judgment.

A. Back Pay and Prejudgment Interest on Back Pay.

Plaintiff contends the judgment should include the full amount of back pay determined by the jury ($30,998), plus prejudgment interest at an annual rate of 10% ($6,624).

Defendant contends the jury's back pay determination should be reduced by the court because its finding was based on plaintiff's damage calculation, which according to Boeing failed to consider the value of annual contributions made on plaintiff's behalf through Boeing's Financial Security Plan ("FSP"). Boeing argues the uncontroverted evidence showed the value of these contributions for 2002-04 was $4,622. Boeing further contends plaintiff improperly included a pilot bonus of $2,845 awarded in February 2002, which was prior to the date plaintiff was passed over for the pilot positions. Lastly, defendant argues plaintiff should not be granted prejudgment interest on back pay (and that the 1% interest included in plaintiff's calculation should be excluded). If prejudgment interest is awarded, defendant argues it should be based on the rate used by the Internal Revenue Service, which according to defendant would be 6% for 2002 and 5% for 2003-04. Applying the foregoing reductions would reduce the back pay award to $23,212. Prejudgment interest at defendant's suggested rate would amount to $4,395.

A plaintiff who suffers a violation of the ADEA or Title VII is entitled to recover monetary damages in the form of back pay. See e.g. Commissioner of Internal Revenue v. Schleier, 515 U.S. 323, 336, 115 S.Ct. 2159, 132 L.Ed.2d 294 (1995) (monetary damages under the ADEA are limited to back wages and liquidated damages); 42 U.S.C. § 2000e-5(g)(1) (back pay authorized for violation of Title VII). An award of back pay compensates a plaintiff for lost wages and benefits between the time of the adverse employment action and the trial court judgment. Johnson v. Spencer Press of Maine, 364 F.3d 368, 379 (1st Cir.2004).

Although neither party has raised the issue, the court notes that the law provided plaintiff a right to jury trial on his ADEA claim, including a right to have the jury determine any issue of fact in an action for amounts owing as unpaid wages. See Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978). This right was expressly made a part of the ADEA after the Lorillard decision. See 29 U.S.C. § 626(b) (a person shall be entitled to a trial by jury of any issue of fact in any such action for recovery of amounts owing as a result of a violation of this chapter, regardless of whether equitable relief is sought by any party in such action). Lorillard indicates that this right to jury trial encompasses a jury's determination of the amount of back pay owing, because such amounts are considered to be "amounts owing as unpaid wages" under the ADEA. See Lorillard, 434 U.S. at 583, n. 11, 98 S.Ct. 866. See also id. at 584, 98 S.Ct. 866 (in contrast to the ADEA, under Title VII the availability of back pay is a matter of equitable discretion). Under the circumstances, the court concludes it has no equitable discretion to determine the appropriate amount of back pay. The court will therefore include in the judgment the full amount of the back pay determined by the jury. Cf. Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 433, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996) (where Seventh Amendment applies, trial court's discretion may be limited to granting new trial or remittitur for jury finding against the weight of the evidence).

With regard to prejudgment interest, Title VII and the ADEA both authorize prejudgment interest as part of the back pay remedy. Loeffler v. Frank, 486 U.S. 549, 558, 108 S.Ct. 1965, 100 L.Ed.2d 549 (1988); Kolb v. Goldring, Inc., 694 F.2d 869, 875 n. 6 (1st Cir.1982). An award of prejudgment interest may be necessary to see that victims of discrimination are made whole by being compensated for the lost value of not having the use and benefit of back wages from the time they should have been paid. See Loeffler. The rule in the Tenth Circuit, however, is that prejudgment interest is not available under the ADEA where the plaintiff receives an award of liquidated damages. See Blim v. Western Elec. Co., Inc., 731 F.2d 1473 (10th Cir.1984); Greene v. Safeway Stores, Inc., 210 F.3d 1237, 1247 (10th Cir.2000) (affirming that under Blim the law of the circuit is that "prejudgment interest is not available under the ADEA if plaintiffs receive liquidated damages."). But see Lindsey v. American Cast Iron Pipe Co., 810 F.2d 1094 (11th Cir.1987) (calling into question Blim in light of Supreme Court ruling on the punitive nature of liquidated damages). Although Blim is not strictly applicable here because the plaintiff's retaliation claim was based upon Title VII as well as the ADEA — and thus Title VII might serve as an independent basis upon which to grant prejudgment interest — the court concludes that the reasoning of Blim and Greene does apply in these circumstances. An award of prejudgment interest in addition to the liquidated damages in this case would amount to a windfall to the plaintiff, and is not necessary to ensure that plaintiff receives full compensation. Accordingly, the court will not include any prejudgment interest in the judgment.

B. Front Pay.

The jury's verdict included a finding that plaintiff should be awarded damages for future net lost wages and benefits (i.e. "front pay") in the amount of $370,437.¹ Both parties agree the jury's finding was made in an advisory capacity, and the court therefore has the responsibility of exercising equitable discretion to determine the nature and amount of front pay. Cf. Denison v. Swaco Geolograph Co., 941 F.2d 1416, 1427 (10th Cir.1991). Plaintiff urges the court to adopt the jury's finding, which he argues is supported by plaintiff's uncontroverted testimony that he intended to work as a test pilot position until retiring at the age of 67. He also argues that the entire award of front pay is necessary to provide an adequate remedy for Boeing's discrimination, because it will be nearly impossible for plaintiff to find a similar test pilot position elsewhere. The jury's finding of lost future wages and benefits was based on plaintiff's Exhibit 44, with an additional reduction of approximately $30,000, perhaps reflecting the value of contract bonuses plaintiff is likely to receive as an engineer. See Doc. 142 at p. 7; Doc. 136 at p. 4.

Defendant contends the jury's finding on front pay is vastly inflated because it was based on plaintiff's damage calculations, which accordingly to Boeing contained several faulty assumptions. Boeing contends plaintiff's calculation underestimated the likely raises he will receive as an engineer, and then overestimated the likely raises he would have received as a pilot. Next, it contends plaintiff failed to account for the value of FSP contributions. Next, it argues plaintiff improperly included a loss for difference in payment of sick leave at retirement, when the evidence showed there was no difference in value between the two positions. And finally, Boeing argues that plaintiff's determination of present value was improperly inflated by his assumption of a too-low 1% annual rate of interest.²

The Tenth Circuit recently noted the following concerning front pay:

"[F]ront pay is simply money awarded for lost compensation during the period between judgment and reinstatement or in lieu of reinstatement." Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 846, 121 S.Ct. 1946, 150 L.Ed.2d 62 (2001)...