Leidel v. Ameripride Services, Inc.
| Decision Date | 24 July 2003 |
| Docket Number | No. 00-4184-JAR.,00-4184-JAR. |
| Citation | 276 F.Supp.2d 1138 |
| Parties | Jon J. LEIDEL, Plaintiff, v. AMERIPRIDE SERVICES, INC., d/b/a Ameripride Linen and Apparel Services, Defendant. |
| Court | U.S. District Court — District of Kansas |
David O. Alegria, McCullough, Wareheim & LaBunker, P.A., Topeka, KS, for Plaintiff.
Brenda L. Head, Davis, Unrein, McCallister, Biggs and Head, LLP, Topeka, KS, for Defendant.
This matter is before the Court sua sponte and on the Court's order for the parties to brief a possible award of back pay and/or front pay damages. On January 28, 2003, the jury returned a verdict in favor of plaintiff in this case. After the verdict was accepted, the Court informed the parties that the back pay and front pay award selected by the jury was only advisory. The Court ordered the parties to file additional briefing regarding the imposition of a back pay and/or a front pay award, and the Court delayed the entry of judgment until this issue was resolved. After consideration of the parties' arguments, the Court finds plaintiff is entitled to an award of back pay as detailed below.
On January 21, 2003, this case proceeded to trial on plaintiff's claims of unlawful retaliation and sexual harassment pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. On January 28, 2003, the jury found that defendant had participated in unlawful retaliation when it terminated plaintiff. The jury, however, rejected plaintiff's sexual harassment claim. Although being fully instructed on its power to grant damages, the jury awarded plaintiff zero damages. The jury was specifically instructed that they could award "lost wages"1 or back pay and "future damages"2 or front pay. The Court, therefore, finds itself confronted with a unique situation, in that the jury clearly found a Title VII violation, yet just as clearly, found plaintiff suffered no damages. Although the jury believed no back pay or front pay award was warranted, equitable damages, like back pay and front pay, fall solely within the court's province.3
Under Title VII, the court may award a successful plaintiff any appropriate relief, including reinstatement, back pay, or "any other equitable relief" the court deems appropriate.5 If liability is established, back pay should generally be awarded absent unusual circumstances.6 The amount of back pay awarded to a Title VII plaintiff is committed to the sound discretion of the district court.7 The Court disagrees with the jury in this case and finds plaintiff has suffered an injury addressable by the equitable power vested in the Court under Title VII.
Generally, the court examines the total salary lost during the appropriate recovery period,8 and then reduces this amount by the actual (or contemplated) earnings compiled by the plaintiff during the recovery period. Such offset is critical to ensure the plaintiff is made whole but does not receive a windfall.
While a successful plaintiff may be entitled to an award of back pay, a plaintiff must make a reasonable and goodfaith effort to mitigate his damages.9 This mitigation usually takes the form of replacement employment.10 The defendant-employer bears the burden of showing that the plaintiff failed to mitigate his or her damages.11 The Tenth Circuit has held that a defendant-employer may meet its burden by showing: "(1) that the damage suffered by plaintiff could have been avoided, i.e., that there were suitable positions available which plaintiff could have discovered and for which [he or she] was qualified; and (2) that plaintiff failed to use reasonable care and diligence in seeking such a position."12 A claimant's failure to search for alternative work, his refusal to accept substantially equivalent employment, or his voluntary quitting of alternative employment without good cause demonstrate a failure to mitigate damages.13
In calculating plaintiff's back pay award, the Court must first determine plaintiff's historic earnings while he was employed with the defendant. Plaintiff began his employment with defendant on January 4, 1999 and was terminated on November 24, 1999. During that period plaintiff was paid $34,788.00. Plaintiff received an additional payment of $3,904.14 in commissions from defendant in the year 2000. Although plaintiff received the payment in 2000, he actually earned the commissions in the year 1999. Thus, the Court finds that plaintiff's historic earnings while he was employed with defendant were $38,692.14, or approximately $832.0914 per week.
As for the years 2000, 2001, and 2002, plaintiff claims that his back pay award should be calculated based on the amount Steve Filley, another salesman, earned during the year 2000. Mr. Filley testified at trial that he earned over $80,000 in salary and commissions for the year 2000. Plaintiff claims he and Mr. Filley were comparable salesmen so he would have had similar earnings. The Court declines to indulge in the speculation that plaintiff would have earned the same amount as Mr. Filley in the years following 1999. Mr. Filley was a seasoned salesman who had been with the company for over twenty years. Also, Mr. Filley testified at trial that he "got very lucky on some big accounts" in the year 2000. Furthermore, plaintiff testified that in August of 1999, his position changed from Sales Representative, like Mr. Filley, to Account Development Representative, a position subject to a different rate of pay and commission schedule. Therefore, plaintiff's back pay award will be calculated based on his historic earnings at Ameripride, not on the earnings of Mr. Filley.
Plaintiff was fired from his employment with Ameripride on November 24, 1999. For the remaining weeks of 1999, plaintiff contends he is entitled to receive his salary and the value of a trip to South Carolina that he would have won had he not been fired. Additionally, plaintiff asserts that he lost the opportunity to sell about five to ten accounts in 1999, resulting in a loss of commissions in the amount of $5,000 to $10,000 for the year. Although the Court declines to indulge in the speculation that plaintiff may have sold five to ten accounts in the remaining weeks of 199915 or that he would have won the trip to South Carolina,16 plaintiff should be compensated for what he would have earned, based on his historic earnings, had he not been fired. In making this findings, the Court notes that defendant failed to carry its burden regarding its mitigation defense for the weeks following plaintiff's termination. Plaintiff testified that he quickly began looking for work consisting of putting in approximately three to five applications per week. Accordingly, plaintiff is entitled to $4,576.50 in back pay for the remaining 5.5 weeks of 1999.17
For the year 2000, plaintiff contends that he is entitled to a back pay award consisting of the difference between what he would have earned at Ameripride18 and what he actually earned at Logan Business Machines, Inc., the replacement employment plaintiff found approximately seven months after being fired from Ameripride. Defendant contends that plaintiff is not entitled to any back pay for 2000 because his income over the course of the year far exceeded what he would have earned had he remained employed with Ameripride. In 2000, plaintiff earned a total of $22,477.20 from Logan Business Machines. Plaintiff also received, $4,643.00 from the State of Kansas in unemployment benefits, $43,963.25 from Basic Carbide, and $5,400 in self-employment income from a deckwashing service. Plaintiff contends that his income from sources other than Logan Business Machines was collateral income and should not be used to reduce his back pay award. The Court agrees.
Deduction of collateral sources of income from a back pay award is a matter within the trial court's discretion.19 It is clear that unemployment compensation is a collateral source of income and should not be used to offset a back pay award.20 As to plaintiff's self-employment income from deck washing, plaintiff testified at trial that this was a "moonlight" job or one that he did after hours or on weekends. Interim earnings from second or "moonlighting" jobs are also generally not deducted from a back pay award because an employee could have held such a job and retained those earnings even if his or her primary employment had been with the defendant who is ordered to pay back pay.21 Plaintiff's income from Basic Carbide also should not be deducted from the back pay award. Defendant is not entitled to any offset for earnings from plaintiff's secondary income inasmuch as plaintiff proved to the Court's satisfaction that he could have achieved these earnings in addition to any earnings he could have made had he not been fired by defendant. In this case, plaintiff's uncontroverted testimony indicated that plaintiff's income from Basic Carbide would have been earned in addition to the income he received from Ameripride. Plaintiff testified that he sold the Basic Carbide account approximately ten years ago and continues to receive commissions from the account so long as the customer continues to place orders.
Defendant also otherwise failed to meet is burden regarding its mitigation defense for the year 2000. Defendant produced no evidence to satisfy its burden of demonstrating that during this time, employment opportunities were available to plaintiff but were not diligently pursued. Plaintiff testified that he promptly began looking for employment by applying for three to five jobs per week. Thus, the Court finds that plaintiff is entitled to a back pay award, not to be offset by earnings other than those from Logan Business Machines, for the year 2000.
In calculating plaintiff's back pay award for 2000, the Court must first determine what plaintiff's yearly salary would have been had he not been fired...
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