Moore v. University of Notre Dame

• Decision Date: 30 September 1998
• Docket Number: No. 3:97 CV 0143 AS.,3:97 CV 0143 AS.
• Citation: 22 F.Supp.2d 896
• Parties: Joseph R. MOORE, Plaintiff, v. THE UNIVERSITY OF NOTRE DAME, Defendant.
• Court: U.S. District Court — Northern District of Indiana

22 F.Supp.2d 896

Joseph R. MOORE, Plaintiff, v. THE UNIVERSITY OF NOTRE DAME, Defendant.

No. 3:97 CV 0143 AS.

United States District Court, N.D. Indiana, South Bend Division.

September 30, 1998.

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R. William Jonas, Jr, Hammerschmidt Amaral and Jonas, South Bend, IN, Richard E. Lieberman, Timothy C. Klenk, Mary Margaret Moore, William J. Wortel, Ross and Hardies, Chicago, IL, for Joseph R. Moore, plaintiff.

Gerald F. Lutkus, John D. LaDue, Barnes and Thornburg, South Bend, IN, William P. Hoye, University of Notre Dame, Notre Dame, IN, Carol C. Kaesebier, University of Notre Dame, Notre Dame, IN, for University of Notre Dame and Robert Davie, defendants.

MEMORANDUM AND ORDER

SHARP, District Judge.

This cause is before this Court on Plaintiff's Motion for Award of Reinstatement/Front Pay and Plaintiff's Bill of Costs. Plaintiff, Joseph R. Moore (Moore) filed a claim in this Court against The University of Notre Dame (Notre Dame) alleging age discrimination, retaliation, and defamation. Only the age discrimination claim survived summary judgment. The case went to trial in Lafayette on July 9, 1998. On July 15, 1998, after four and one-half hours of deliberation, the Jury found that Notre Dame had violated the Age Discrimination in Employment Act (ADEA) and awarded Moore back pay in the amount of $42,935.28. Additionally, because the jury determined that Notre Dame's violation of ADEA was wilful, Plaintiff also was awarded liquidated damages in the additional amount of $42,935.28. Judgment must and now does enter in favor of the plaintiff, Joseph E. Moore and against the defendant, Notre Dame in the amount of $85,870.56. Accordingly, the Court now considers Moore's post-trial motions.

A briefing schedule and oral argument were originally set in this Court for consideration of the front-pay issue. The parties subsequently requested the Court to vacate the oral argument date and rule solely on the Briefs. Having duly considered same, the Court now rules as follows.

I. RELIEF UNDER THE ADEA

The remedial scheme for a discriminatory discharge is designed to make a plaintiff who has been the victim of discrimination whole through the use of equitable remedies. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975) (discussing equitable remedies for Title VII); Straka v. Francis, 867 F.Supp. 767 (N.D.Ill. 1994) (stating that ADEA and Title VII are treated similarly regarding available remedies). When confronted with a violation of the ADEA, a district court is authorized to afford relief by means of reinstatement, backpay, injunctive relief, declaratory judgment, and attorney's fees. 29 U.S.C. § 626(b); McKennon v. Nashville Banner Pub'g Co., 513 U.S. 352, 357-58, 115 S.Ct. 879, 884, 130 L.Ed.2d 852 (1995); see also Lorillard v. Pons, 434 U.S. 575, 584, 98 S.Ct. 866, 872, 55 L.Ed.2d 40 (1978). Additionally, in the case of a willful violation of the Act, the ADEA authorizes an award of liquidated damages equal to the backpay award. 29 U.S.C. § 626(b).¹

Moore now asks the Court to reinstate him in his former coaching position, or to award five year's front pay in lieu of reinstatement. Notre Dame contends that Moore has received all relief to which he was entitled and therefore asks this Court to deny Moore's Motion for Reinstatement/Front Pay.

A. Reinstatement

Although reinstatement is the preferred remedy in a discrimination case, it is not always appropriate. The factors which should be considered when determining its propriety include, hostility in the past employment relationship and the absence of an available position for the plaintiff. Civil Rights Act of 1964, § 701 et seq., as amended, 42 U.S.C.A. § 2000e et seq.; McKnight v. General Motors Corp., 973 F.2d 1366, 1370 (7th Cir.1992); Ward v. Tipton County Sheriff Dept., 937 F.Supp. 791 (S.D.Ind.1996). Additionally, under ADEA, when a period for reinstatement is relatively short, such that plaintiff is close to retirement, the strong preference in favor of reinstatement is neutralized by the increased certainty of potential loss of pay permitting consideration of a front pay award. See McNeil v. Economics Laboratory, Inc., 800 F.2d 111, 118 (7th Cir. 1986), cert. denied, 481 U.S. 1041, 107 S.Ct. 1983, 95 L.Ed.2d 823 (1987), overruled on other grounds by Coston v. Plitt Theatres, Inc., 860 F.2d 834 (7th Cir.1988). See also, Chace v. Champion Spark Plug Co., 732 F.Supp. 605 (D.Md.1990).

1. Hostility

The decision to reinstate a discriminatorily terminated employee is consigned to the sound discretion of the district court which should not grant reinstatement "where the result would be undue friction and controversy." McKnight v. General Motors Corp., 908 F.2d 104, 115 (7th Cir.1990); Wilson v. AM General Corp., 979 F.Supp. 800 (N.D.Ind.1997) (may consider friction that exists between employer and employee unrelated to discrimination). Evidence that hostility developed between the employer and employee during litigation may also be considered, but is not dispositive. U.S. E.E.O.C. v. Century Broadcasting Corp., 957 F.2d 1446 (7th Cir.1992); Cassino v. Reichhold Chemicals, Inc. 817 F.2d 1338 (9th Cir.1987).

In the present case, Moore's reinstatement would cause significant friction as well as disruption of the current football program. Moore and Davie, his direct supervisor, are no longer on speaking terms. During trial, sufficient evidence was presented to infer that Moore and Davie would be unable to engage in a workable relationship. Reinstatement in this instance is impracticable. Moreover, even if hostility and undue friction were not a problem, reinstatement is not appropriate in this case.

2. Available Position

The Seventh Circuit has also held that reinstatement can reasonably be denied when "someone else currently occupies the employee's former position." Century Broadcasting, 957 F.2d 1446 (quoting Graefenhain v. Pabst Brewing Co. 870 F.2d 1198, 1208 (7th Cir.1989)). Other Circuits hold similarly. See e.g., Ray v. Iuka Special Mun. Separate School Dist., 51 F.3d 1246, 1254 (5th Cir.1995); Shore v. Federal Express Corp., 777 F.2d 1155, 1157-59 (6th Cir. 1985); Spagnuolo v. Whirlpool Corp., 717 F.2d 114, 119-122 (4th Cir.1983) (holding that reinstatement is not appropriate if it requires bumping or displacing innocent employee in favor of plaintiff). The law is clear. Even if this Court determined that reinstatement is warranted, it is not an appropriate remedy in this case as there is no available position to which Moore could return. Therefore, the Court turns to the more difficult issue of whether front-pay is warranted.

B. Front Pay

Plaintiff is incorrect in stating that "if the Court rejects Moore's request for reinstatement, it must award him front pay." (Pl.'s Mem. at 7) (emphasis added). Front pay is an available remedy under ADEA, however, such an award remains discretionary with court. Williams v. Pharmacia Opthalmics, Inc., 926 F.Supp. 791 (N.D.Ind. 1996), aff'd, 137 F.3d 944 (7th Cir.1998); Downes v. Volkswagen of America, Inc., 41 F.3d 1132, 1141 (7th Cir.1994); Tennes v. Commonwealth of Massachusetts Dept. of Revenue, 944 F.2d 372, 381 (7th Cir.1991); Drago v. Aetna Plywood, Inc., No. 96 C 2398, 1998 WL 474100 (N.D.Ill. Aug.3, 1998). The Seventh Circuit has defined front pay as "a lump sum ... representing the discounted present value of the difference between the earnings (an employee) would have received in his old employment and the earnings he can be expected to receive in his present and future, and by hypothesis, inferior, employment." Century Broadcasting, 957 F.2d 1446, 1463 n. 18 (quoting McKnight, 908 F.2d 104, 116). See also, Downes, 41 F.3d 1132, 1141, n. 8. Such a remedy may especially be indicated when the plaintiff has no reasonable prospect of obtaining comparable employment or when the time period for which front pay is to be awarded is relatively short. Inks v. Healthcare Distributors of Indiana, Inc., 901 F.Supp. 1403 (N.D.Ind.1995). See e.g., Nelson v. Boatmen's Bancshares, Inc., 26 F.3d 796 (8th Cir.1994) (front pay appropriate when employee is nearing retirement age); Duke v. Uniroyal, Inc., 928 F.2d 1413 (4th Cir.1991); Linn v. Andover Newton Theological School, Inc., 874 F.2d 1 (1st Cir. 1989); Stratton v. Department for the Aging for the City of New York, 922 F.Supp. 857 (S.D.N.Y.1996) (all holding similarly). The court determines the amount of front pay to award depending on whether:

1. the plaintiff has a reasonable prospect of obtaining comparable employment;

2. the time period for the award is relatively short;

3. the plaintiff intends to work or is physically capable of working; and

4. liquidated damages have been awarded.

Williams, 926 F.Supp. 791, 796 (finding an award of front pay in Title VII context proper and consistent with the 1991 amendments). Front pay is awarded for a reasonable period of time, until a date by which the plaintiff, using reasonable diligence, should have found comparable employment. Hutchison v. Amateur Electronics Supply, Inc., 840 F.Supp. 612 (E.D.Wis.1993), aff'd in part, rev'd in part, 42 F.3d 1037, 1045 (7th Cir. 1994). Moreover, an award must be grounded in available facts, acceptable to a reasonable person and not highly speculative. Downes, 41 F.3d at 1142. It cannot be based simply on a plaintiff's own stated intentions with regard to how long he or she would have worked. Pierce v. Atchison, Topeka & Santa Fe Ry. Co., 65 F.3d 562, 574 (7th Cir.1995).

Notre Dame contends that Moore is not entitled to front pay because 1) evidence acquired by Notre Dame after Moore's discharge would have led to his discharge based on legitimate, nondiscriminatory reasons, 2) Moore's award of liquidated damages has already made him whole, and 3) Moore has failed to make reasonable efforts to mitigate his damages.

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