Hudson v. Chertoff
| Decision Date | 12 February 2007 |
| Docket Number | No. 05 60985CV.,05 60985CV. |
| Citation | 473 F.Supp.2d 1292 |
| Parties | Ulysses J. HUDSON, Plaintiff, v. Michael CHERTOFF, as Secretary of the United States Department of Homeland Security, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
O'SULLIVAN, United States Magistrate Judge.
THIS MATTER comes before the Court on the Defendant's Motion for Summary and/or Final Judgment on Plaintiffs Claims for Front Pay and Back Pay, or Alternative Motion for De Novo Hearing to Reduce Advisory Jury Front Pay and Back Pay Awards (DE# 211, 11/21/06). Having presided at trial and having reviewed the applicable filings and law, for the reasons stated more fully below, it is
ORDERED AND ADJUDGED that the Defendant's Motion for Summary and/or Final Judgment on Plaintiffs Claims for Front Pay and Back Pay, or Alternative Motion for De Novo Hearing to Reduce Advisory Jury Front Pay and Back Pay Awards (DE# 211, 11/21/06) is GRANTED impart and DENIED in part.
A jury returned a verdict in favor of the plaintiffs claims against the government for discrimination under the Rehabilitation Act of 1973, 29 U.S.C. 701, et seq., and for retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C2000, et seq. At the pretrial conference, the Court advised the parties that it would seek an advisory verdict from the jury on the issues of back pay and front pay. At that time, the Court directed the parties to submit all evidence on the issues of back pay and front pay to the jury at trial. The plaintiff relied on his own testimony and that of his expert, Antonio L. Argiz, CPA. Other than cross-examination of these two witnesses, the government did not submit any evidence or rebuttal testimony as to its mitigation defense regarding the plaintiffs claims for back pay and front pay damages. The parties were told that the Court would consider the issue of reinstatement in a hearing following the trial if the plaintiff obtained a jury verdict in his favor. The plaintiff has advised the Court that he is not seeking reinstatement.
The plaintiff was employed by the United States Customs Service and the Department of Homeland Security, Immigration and Customs Enforcement as an Intelligence Research Specialist from 1995 through February 26, 2005. In October, 2001, the government transferred the plaintiff from the Miami office to the Office of Resident-In-Charge ("RAC") in Ft. Lauderdale. The transfer arose from a prior accommodation request, which was litigated in Hudson v. Ridge, Case No. 01-2425-Civ-Marra ("Hudson I").
From October 2001 through October 2002, the plaintiff worked in the Airport Response Group, which is part of the RAC office in Ft. Lauderdale. On September 11, 2002, the plaintiff wrote a memorandum to Anthony Mangione, Resident-Agent-in-Charge, which stated that his supervisor, Kimberly Duff, was purposefully stalking and harassing him in the workplace.
On or about October 21, 2002, the defendant reassigned the plaintiff from Ft. Lauderdale to the Cyber Crimes Group in Miami while the defendant investigated the plaintiffs allegations against his supervisor. The Cyber Crimes Group in Miami consisted of supervisors and employees that were different from the Strategic/Exodus Group in Miami, where the plaintiff worked at the time of his original accommodation request in 2001.
From the date of his reassignment to Miami, October 21, 2002, to the date of his termination, February 26, 2005, the plaintiff never reported to work in Miami. Due to his physician's directive, the plaintiff was placed on leave without pay ("LWOP") status for medical reasons from October, 2002, through March, 2004. In a letter dated December 8, 2003, the plaintiffs physician, Douglas M. Lanes, M.D., advised the defendant that in his psychiatric opinion, the plaintiff "can continue to function as an intelligence research specialist within your Department of Homeland Security." (Jt. Trial Ex. 8) Dr. Lanes recommended that the plaintiff be accommodated by allowing him to work from home for a year or from one the defendant's Fort Lauderdale offices "because he is having great difficulty with social anxiety about performing his work duties in the Miami District branch." (Id.) In the same letter, Dr. Lanes advised the defendant that "[the plaintiffs] recovery has progressed to the point where it is my psychiatric opinion that he may attempt to return to work on 01-05-04 with proper accommodation." (Id.) At trial, Dr. Lanes testified that the accommodation meant work outside of the Miami office. (DE# 218-5, 12/6/06, Ex. C, Trial Tr. of Lanes at pp. 39-40) The defendant changed the plaintiffs status to absence without leave ("AWOL") from March, 2004, through November, 2004.
The plaintiff applied for one Intelligence Research Specialist position during his medical leave in May, 2003. (Pl.'s Trial Tr. 199; 8-10 & 15-25; 200: 1-9 & 16-25; 201, 1-8; 202: 16-20; continued Pl.'s Trial Tr. 13: 23-25; 14: 1-24); (Pl.'s Dep. 13: 7-15; 174:25; 175:1-9). The defendant cancelled the position and made a lateral noncompetitive transfer, which the plaintiff alleges serves as a basis for his lawsuit. (Pl.'s Trial Tr. 206: 14-22; Continue Pl.'s Trial Tr. 15: 3-6 & 14-25; 16: 1-5); (Pl.'s Dep. 206: 24-25; 207:1-7).
At trial, the plaintiff testified that he applied for other IRS positions with the defendant in San Francisco, San Diego, Key Largo and Homestead. (Pl.'s Trial Tr. 206:23-25; 207: 1-6 & 17-25; 208:1-2). The plaintiff also testified that he sought a return to his prior position in Ft. Lauderdale as well as placement in other job descriptions within Customs such as EEO specialist, human resource specialist or recruitment, or any other potential accommodation. (Pl.'s Trial Tr. 207) (Trial Ex. 84 at 20) (Trial Ex. 88). The May 2003 cancelled position was the only position for which the plaintiff has applied since October 18, 2002, and for which documentary evidence exists.
On February 26, 2005, the defendant terminated the plaintiff for his purported failure to maintain a regular work schedule and for unauthorized absence from the workplace. The plaintiff did not make any effort to find substantially equivalent or other gainful employment from the date of his termination through the conclusion of trial, November 7, 2006. (Pl.'s Trial Tr. 243:19-25; 244:1-8; Continued Pl.'s Trial Tr. 57: 8-25; 58: 1-3); (DE # 218 at 4, 12/6/06)(plaintiff concedes that the he "has not attempted to seek employment since his February 2005 termination ... [because] he had no obligation to continue [his] search [for employment] forever."). At trial, the plaintiff testified that he is ready, willing and able to work and his disability does not preclude him from holding down full time employment. (Pl.'s Trial Tr. 244:12-21; Continued Pl.'s Trial Tr. 58: 4-10 & 21-25).
The plaintiffs expert, Antonio L. Argiz, CPA, testified as to the amount of damages that the plaintiff incurred in the form of back pay and front pay as well as noneconomic damages. (DE# 218-5, Ex. E, Trial Tr. of Argiz pp. 34-35, 39-40) Mr. Argiz calculated the back pay damages from October 18, 2002 through trial to be $219,064, which is the present value and includes the subtraction of the imputed median annual earnings of $47,030 that the plaintiff could have earned if he mitigated during the period from March 8, 2004 through October 2006. Mr. Argiz testified that the plaintiffs discounted future loss was $760,514 from trial in November, 2006 through November 29, 2020. (Id. at pp. 32-33, 34-35) Other than the cross-examination testimony of the plaintiff and Mr. Argiz, the defendant did not submit any rebuttal testimony or evidence regarding the defendant's mitigation defense.
On November 7, 2006, the jury returned a verdict in favor of the plaintiff on his Rehabilitation Act and Title VII retaliation claims. In its verdict, the jury recommended that the plaintiff be awarded $220,000 in back pay and $780,000 in front pay in addition to non-economic damages in the amount of $1,500,000.
After trial and the return of the jury's Verdict, the defendant filed Defendant's Motion for Summary and/or Final Judgment on Plaintiffs Claims for Front and Back Pay, or Alternative Motion for De Novo Hearing to Reduce Advisory Jury Front Pay and Back Pay Awards. The defendant seeks a judgment in its favor on the plaintiffs claims for back pay and front pay because the plaintiff failed to mitigate in that he did not diligently seek substantially equivalent employment. Alternatively, the defendant requests a de novo hearing to have the Court reduce the amounts of back pay and front pay recommended by the jury.
The court, in reviewing a motion for summary judgment, is guided by the standard set forth in Federal Rule of Civil Procedure 56(c), which states, in relevant part, as follows:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
The moving party bears the burden of meeting this exacting standard. See Celotex Corp. v. Catrett, 477 U:S. 317, 322-323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); See also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). That is, "[t]he moving party bears the initial responsibility of informing the . . . court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to...
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