Hipp v. Liberty Nat. Life Ins. Co., 95-1332-CIV-17A.

• Decision Date: 20 November 1998
• Docket Number: No. 95-1332-CIV-17A.,95-1332-CIV-17A.
• Citation: 29 F.Supp.2d 1314
• Parties: David HIPP, Harry W. McKown, Jr., Brad Stein, Mike Stell, and All Others Similarly Situated, Plaintiffs, v. LIBERTY NATIONAL LIFE INSURANCE COMPANY, Defendants.
• Court: U.S. District Court — Middle District of Florida

29 F.Supp.2d 1314

David HIPP, Harry W. McKown, Jr., Brad Stein, Mike Stell, and All Others Similarly Situated, Plaintiffs, v. LIBERTY NATIONAL LIFE INSURANCE COMPANY, Defendants.

No. 95-1332-CIV-17A.

United States District Court, M.D. Florida, Tampa Division.

November 20, 1998.

COPYRIGHT MATERIAL OMITTED

Ross Mathew Goodman, Robert Douglas Permenter, Troy Alan Rafferty, Mary E. Pilcher, Levin, Middlebrooks, Thomas, Mitchell, Green, Eschner, Proctor & Papantonio, Pensacola, FL, for Plaintiffs.

Peter W. Zinober, D. Michael Pointer, II, Zinober & McCrea, P.A., Tampa, Margaret H. Campbell, Martha C. Perrin, Ogletree, Deakins, Nash, Smoak & Stewart, Atlanta, GA, William J. Baxley, Joel E. Dillard, Baxley, Dillard, Dauphin & McKnight, P.A., Birmingham, for Defendant.

ORDER

KOVACHEVICH, Chief Judge.

This cause comes before the Court on Plaintiffs' Memorandum in Support of Front Pay and Punitive Damage Awards Consistent with the Jury's Verdict (Docket No. 322), Defendant's Response to Plaintiffs' Memorandum Regarding Front Pay and Punitive Damages (Docket No. 328), Defendant's Memorandum Regarding Front Pay and Punitive Damages (Docket No. 323), and Plaintiffs' Response to Defendant's Brief Regarding Front Pay and Punitive Damages (Docket No. 332).

On July 9, 1998, the jury returned verdicts in this cause which included front pay advisory awards to five (5) Plaintiffs: Tony Agee, Harold Carter, Jimmy Lee, Mike Stell, and Blake Tuggle. In addition, the jury awarded $5 million in punitive damages each to David Hipp and Brad Stein, both of whom, were Florida Plaintiffs. After the Court received the verdicts, the parties were directed to file briefs regarding the front pay and punitive damages awards.

The following awards were returned by the jury:

                PLAINTIFF          BACK PAY      FRONT PAY     PUNITIVE    PAIN &amp
                                                 (ADVISORY)                SUFFERING
                Tony Agee          $191,043      $537,016
                Harold Carter      $227,465      $994,642
                Don Ganus          $      0      $      0
                David Hipp         $337,592      $      0      $5M         $1.175M
                James Lee          $673,819      $616,851
                Dwayne Sentell     $      0      $      0
                Brad Stein         $403,779      $      0      $5M         $2.7M
                Mike Stell         $196,390      $546,952
                Peter Swanson      $      0      $      0
                Blake Tuggle       $ 79,742      $490,227
                

I. Reinstatement vs. Front Pay

As a preliminary argument, Defendant contends that, because reinstatement is the preferred remedy for discrimination under the ADEA, reinstatement should be ordered, rather than front pay awarded. Defendant argues that it is Plaintiffs' burden to prove, by specific evidence, that reinstatement is "unworkable due to hostility, harassment, or retaliation." (Def.'s Mem. p. 2)(citing James v. Sears, Roebuck & Co., 21 F.3d 989, 997 (10th Cir.1994)). Moreover, Defendant asserts that the reinstatement remedy should not be summarily disregarded or considered impracticable simply because a plaintiff contends that past discrimination, and the resulting litigation, engendered ill feelings between himself and his former employer.

Conversely, Plaintiffs point out that Vurl Duce, Defendant's Executive Vice president, is responsible for the work assignments and supervision of all District Managers; therefore, reinstatement of Plaintiffs would place them subject to Mr. Duce's supervision. Plaintiffs argue that Mr. Duce received numerous complaints of discrimination from Plaintiffs and he failed to either report the complaints or insure that appropriate action was initiated. Plaintiffs assert that the evidence presented at trial demonstrates that Mr. Duce, as well as other management employees, including, but not limited to, Patti Herring, Jim Poole, and Dale Rainey, all received complaints of discrimination and failed to take appropriate corrective action. Plaintiffs maintain that this inexcusable neglect of their affirmative duties and responsibilities to prevent discrimination in the workplace establishes that reinstatement is not an appropriate remedy. Moreover, Plaintiffs contend that Defendant's policies are still established and enforced by C.B. Hudson whose policies were at the center of this litigation. Plaintiffs emphasize that C.B. Hudson's policies evidenced a pattern and practice of age discrimination.

Plaintiffs also take issue with Defendant's characterization that Defendant's workplace has been cleansed of the individuals who were primarily responsible for the intimidation and harassment they suffered. Plaintiffs argue that Andy King, Defendant's former Vice President, who predominantly carried out the harassment, was promoted to a sister company despite all of the complaints and allegations of discrimination against him. Plaintiffs assert that these facts suggest that the pattern and practice of discrimination has not ceased. Furthermore, Plaintiffs assert that Defendant has failed to acknowledge the pattern and practice of age discrimination or the fact that those proven to be responsible for the discrimination continue to have control and ultimate responsibility of the company.

In Lewis v. Federal Prison Industries, Inc., 953 F.2d 1277 (11th Cir.1992), the Eleventh Circuit evaluated the circumstances under which front pay is appropriate. "Front pay may be particularly appropriate in lieu of restatement where discord and antagonism between the parties would render reinstatement ineffective as a make whole remedy." Id. 953 F.2d at 1280 (quoting Goldstein v. Manhattan Industries, 758 F.2d 1435, 1449 (11th Cir.1985)). The Lewis Court noted that front pay is favored over reinstatement where the employer intimidated or threatened the plaintiff and where the plaintiffs self worth was crushed by the dismissal. Id.

The Court agrees with Plaintiffs. It is not reasonable to assume that any of the Plaintiffs could productively return to their former positions with Defendant. During the trial, Defendant attacked the character and abilities of each of the Plaintiffs in order to show that each one was fired because he was incapable of meeting the demands of the job. Moreover, Plaintiffs' entire case was dependent on the theory that Defendant employed a pattern and practice of age discrimination involving harassment and intimidation in order to force the older employees to leave in an effort to reduce expenses. The factors recognized by the Eleventh Circuit as warranting front pay are present in this case.

A prime example of the impracticality of reinstatement is Plaintiff Stell's circumstances. Although Defendant has not admitted that any of the Plaintiffs were discriminated against, Defendant conceded that Plaintiff Stell's termination was unfortunate and argued that the company did everything in its power to persuade Plaintiff Stell to return to work for Defendant. As a result, Plaintiff Stell presents the only individual situation where it is at least arguable that reinstatement is a possibility. Nevertheless, Defendant's argument has little merit.

Although Defendant presented evidence that Plaintiff Stell was asked to return to his position, there was contradictory evidence presented which indicated that the offer was not unconditional and Defendant did not attempt to resolve the problems, of which, Plaintiff Stell complained. Interestingly, Plaintiff Stell testified that he was harassed, not merely because of his age, but also because of his weight. Plaintiff Stell testified that the stress of the harassment caused him emotional and psychological problems. He also testified that his physical ailments required hospitalization. Furthermore, other Plaintiffs testified that the offers made by Defendant were unacceptable and there was no evidence produced which would suggest that their respective refusals were unreasonable.

This Court noted in its previous Order (Docket No. 287) that the evidence produced at trial revealed that Defendant capitalized on the vulnerabilities of these Plaintiffs and caused several of them to seek medical and psychiatric help. The relationship between the employer and employee has been clearly severed in this case. The evidence at trial established that the admiration and esteem that Plaintiffs once held for Defendant has long been extinguished by Defendant's acts. It is too late to paint a promising picture of employment opportunities.

Moreover, there is no indication that Defendant has District Manager positions open for each of these Plaintiffs. Each Plaintiff would have to be reinstated in the same position he would have held had he not been illegally terminated. As a result, Plaintiffs would have to be placed in the same districts with the same pay structure and benefits that they had prior to being terminated. Interestingly, some of the Plaintiffs established that they replaced one another in the same District Manager position and were forced to leave the company sequently. Reinstatement is not a viable remedy in this case.

Consequently, where reinstatement is not feasible, a plaintiff must be awarded reasonable, offsetting compensation. See Whittlesey v. Union Carbide Corp., 742 F.2d 724, 728 (2d Cir.1984). To hold otherwise "would leave the plaintiff irreparably harmed in the future by the employer's discriminatory discharge, and would permit the defendant's liability for its unlawful action to end at the time of judgment." Id.

Nevertheless, Defendant argues that, even if reinstatement is not appropriate, Plaintiffs still should not be awarded front pay. Defendant offers three (3) reasons why Plaintiffs should not be awarded front pay: (1) Plaintiffs who were awarded liquidated damages are not entitled to front pay; (2) the jury's front pay awards are unduly speculative and (3) front pay should be awarded only in egregious circumstances.

Defendant argues that, because the jury found that Defendant willfully violated the ADEA, Plaintiffs will be entitled, as a matter of law, to liquidated damages in an...