Ogden v. Wax Works, Inc.

Decision Date08 December 1998
Docket NumberNo. C96-4116-MWB.,C96-4116-MWB.
Citation29 F.Supp.2d 1003
PartiesKerry D. OGDEN, Plaintiff, v. WAX WORKS, INC., Defendant.
CourtU.S. District Court — Northern District of Iowa

Jay E. Denne, Munger & Reinschmidt, Sioux City, IA, for plaintiff.

Steven R. Jensen, Crary, Huff, Inkster, Hecht & Sheehan, P.C., Sioux City, IA, for defendants.

MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFF'S REQUEST FOR FRONT PAY

BENNETT, District Judge.

                  I. INTRODUCTION ............................................................1006
                 II. LEGAL ANALYSIS ..........................................................1007
                     A. Prospective Equitable Relief Available Under Title VII ...............1007
                        1. Reinstatement .....................................................1008
                           a. Nature of the remedy ...........................................1008
                           b. Factors considered in ordering reinstatement ...................1008
                        2. Front pay .........................................................1010
                           a. Nature of the remedy ...........................................1010
                           b. Factors considered in awarding front pay .......................1012
                     B. Ogden's Request For Prospective Equitable Relief .....................1015
                        1. Reinstatement .....................................................1015
                        2. Front pay .........................................................1017
                        3. Calculation of the front pay award ................................1019
                III. CONCLUSION...............................................................1022
                

"They can expect nothing but their labour for their pains." MIGUEL DE CERVANTES, DON QUIXOTE (1605, 1615) (AUTHOR'S PREFACE, Lockhart's, trans.). In a cruel twist of Don Quixote's words, a jury determined that the plaintiff in this employment discrimination case received "but pain for her labour," and awarded her compensatory and punitive damages on her claims for hostile work environment, quid pro quo harassment and retaliation. Presently before the court is the plaintiff's request for a front pay award. To resolve the matter, the court must determine which form of prospective equitable relief — the "preferred" remedy of reinstatement or front pay — is warranted in this case. If the court determines front pay is indeed appropriate, it must ascertain the amount and duration of such an award.

I. INTRODUCTION

Following a five day trial, the jury returned a verdict on November 17, 1998, in favor of plaintiff Kerry Ogden on her claims of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Specifically, the jury determined that defendant Wax Works, Inc., violated the provisions of Title VII by allowing the creation of a sexually hostile work environment, and by engaging in quid pro quo harassment and retaliation. Wax Works, Inc. owns and operates the Disc Jockey music store in the Southern Hills Mall, Sioux City, Iowa, where Ogden was employed as the store manager. The jury also found that Ogden was constructively discharged from her employment.

The jury awarded Ogden $40,000.00 in compensatory damages, pre-termination back pay in the amount of $792.00, post-termination back pay in the amount of $75,599.00, and $500,000.00 in punitive damages, for a total damages award of $616,391.00. Of course this is not the amount for which judgment will ultimately be entered. Section 1981a(3)(D) imposes a statutory cap on the amount of compensatory and punitive damages a plaintiff may receive. 42 U.S.C. § 1981a(b)(3). Under this provision, Ogden's award for compensatory and punitive damages will be limited to the sum of $300,000.00 because Wax Works employs more than 500 employees. 42 U.S.C. § 1981a(b)(3)(D). The United States Court of Appeals for the Eighth Circuit recently held that the statutory cap is not applicable to the equitable award of front pay. Kramer v. Logan Cty. Sch. Dist., 157 F.3d 620, 626 (8th Cir.1998). To the extent the statutory cap is germane to the issue of front pay, it will be discussed in the court's legal analysis infra.

On November 24, 1998, in accord with the United States Court of Appeals for the Eighth Circuit's instruction that the determination of front pay is an equitable issue for the court, see Newhouse v. McCormick & Co., Inc., 110 F.3d 635, 643 (8th Cir.1997), the court held a post-verdict evidentiary hearing on Ogden's request for front pay. The only evidence presented by the plaintiff — in addition to the evidence offered and received at trial — was the testimony of Kerry Ogden herself. Likewise, the only evidence presented by Wax Works was cross-examination testimony elicited from Ogden. Ogden testified that she seeks approximately eight years of front pay in the amount of $229,989.25. The court will discuss the precise method employed by Ogden in reaching this requested sum in its legal analysis. However, for introductory purposes, the court notes that Ogden calculated this amount based on salary increases and bonuses she anticipated receiving had she remained at Wax Works, less her actual expected earnings over the requested eight year period.

Wax Works has not argued that reinstatement would be appropriate or that an award of front pay would be improper in this case. However, Wax Works challenges the amount of Ogden's request for front pay on the grounds that it is based on salary figures unsupported by the evidence, that it contains no adjustment to present value, and that it includes compensation for insurance benefits. Additionally, Wax Works argues that Ogden has failed to satisfactorily mitigate her potential future lost earnings by failing to seek full-time managerial employment.

With this background in mind, the court will turn first to a review of the prospective equitable remedies available under Title VII. Next, the court will consider which future equitable remedies — if any — should be awarded to Ogden in this case.

II. LEGAL ANALYSIS
A. Prospective Equitable Relief Available Under Title VII

Title VII, like other federal anti-discrimination laws, supplies broad legal and equitable remedies to make successful plaintiffs whole.1 42 U.S.C. § 2000e-5; see also McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 357-58, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995) (discussing various federal anti-discrimination laws and the means of relief available); Albemarle Paper Co. v. Moody, 422 U.S. 405, 419, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975) (stating that "[t]he `make whole' purpose of Title VII is made evident by the legislative history."); Cowan v. Strafford R-VI Sch. Dist., 140 F.3d 1153, 1160 (8th Cir.1998) (acknowledging the court's obligation "to fulfill the make-whole purposes of Title VII)." Among the myriad of remedies available to individuals who prevail on their claims of employment discrimination are two alternative types of equitable prospective relief — reinstatement and front pay.2 Newhouse v. McCormick & Co., Inc., 110 F.3d 635, 641 (8th Cir.1997). These equitable remedies may be awarded to compensate successful plaintiffs for lost future earnings. Feldman v. Philadelphia Hous. Auth., 43 F.3d 823, 832-33 (3d Cir.1994). The purpose of and method for calculating these remedies have been characterized in largely the same manner whether relief is sought under Title VII, the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., (ADEA), or the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., (ADA). Lussier v. Runyon, 50 F.3d 1103, 1107-08 (1st Cir.1995), cert. denied, 516 U.S. 815, 116 S.Ct. 69, 133 L.Ed.2d 30 (1995). The choice of which prospective equitable remedy, if either, should be awarded in a given case is committed to the sound discretion of the trial court. E.E.O.C. v. HBE Corp., 135 F.3d 543, 555 (8th Cir.1998); Mason v. Oklahoma Turnpike Auth., 115 F.3d 1442, 1458 (10th Cir. 1997); Suggs v. ServiceMaster Educ. Food Management, 72 F.3d 1228, 1234 (6th Cir. 1996); Standley v. Chilhowee R-IV Sch. Dist., 5 F.3d 319, 322 (8th Cir.1993); Hybert v. Hearst Corp., 900 F.2d 1050, 1056 (7th Cir.1990).

1. Reinstatement
a. Nature of the remedy

Reinstatement, often characterized as the "preferred" remedy in unlawful employment termination cases, is specifically provided for by statute:

(1) If the court finds that the respondent has intentionally engaged in ... an unlawful employment practice ... the court may ... order ... reinstatement....

42 U.S.C. § 2000e-5(g)(1). Reinstatement may be achieved by returning the plaintiff to his or her former position or by placing the plaintiff in a "comparable" position to the one held immediately before the illegal discharge. Carter v. Sedgwick Cty., 929 F.2d 1501, 1505 (10th Cir.1991) (ordering reinstatement under Title VII and instructing that the plaintiff be returned "to her former job or to a position with a commensurate rating ..."). One court has explained the universal preference for reinstatement as a result of the "dual goals" it accomplishes — "providing full coverage for the plaintiff and ... deterring such [unlawful] conduct by employers in the future." Selgas v. American Airlines, Inc., 104 F.3d 9, 13 (1st Cir.1997).

The wisdom of the judicially created preference for reinstatement over front pay has not been addressed by the parties here. Nevertheless, the court notes that Associate Professor Susan K. Grebeldinger has authored a scholarly critique criticizing the overwhelming preference for reinstatement over front pay in fashioning prospective relief for discriminatorily discharged employees. Susan K. Grebeldinger, The Role Of Workplace Hostility In Determining Prospective Remedies For Employment Discrimination: A Call For Greater Judicial Discretion In Awarding Front Pay, 1996 U.ILL.L.REV. 319 (1996). Professor Grebeldinger cogently observes, inter alia, that reinstatement "does not always serve the interests of the victims...

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