Ward v. Tipton County Sheriff Dept.

• Decision Date: 12 August 1996
• Docket Number: No. IP 93-1736-C.,IP 93-1736-C.
• Citation: 937 F. Supp. 791
• Parties: Weda Annette WARD, Plaintiff, v. TIPTON COUNTY SHERIFF DEPARTMENT, Sheriff James Schroeder, in his official and individual capacities, Major Matthew Thompson, in his official and individual capacity, and Chester Netherton, in his individual capacity, Defendants.
• Court: U.S. District Court — Southern District of Indiana

937 F. Supp. 791

Weda Annette WARD, Plaintiff, v. TIPTON COUNTY SHERIFF DEPARTMENT, Sheriff James Schroeder, in his official and individual capacities, Major Matthew Thompson, in his official and individual capacity, and Chester Netherton, in his individual capacity, Defendants.

No. IP 93-1736-C.

United States District Court, S.D. Indiana, Indianapolis Division.

August 12, 1996.

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Brenda Franklin Rodeheffer, Monday Rodeheffer Jones & Albright, Indianapolis, IN, for Plaintiff.

Mary J. Hoeller, Mark E. Walker, Lewis & Wagner, Indianapolis, IN, for Defendants.

ORDER

McKINNEY, District Judge.

This matter comes before the Court on the petition of Weda Annette Ward ("Ward") for equitable relief subsequent to a jury verdict finding her former employer liable for retaliatory discharge in violation of 42 U.S.C. § 2000e-5. Specifically Ward seeks a total of $24,521.09 in lost income (back pay) from 1992 to March 31, 1996, $61,302.73 in future lost earning capacity (front pay) for a ten year period, pre- and post-judgment interest, and an injunction ordering defendant Tipton County Sheriff's Department (the "Department") to provide seminars and training to its staff on equal employment rights.

Ward has also petitioned this Court for an award of reasonable attorney's fees and costs pursuant to 42 U.S.C. §§ 2000e-5(k) and 1988.¹ Because Ward had more than one set of attorneys working on her case at various times, she seeks reimbursement for the expenditures of time and money by each firm. For services performed by her first law firm, Stewart & Irwin, Ward asks for $16,235.00, and for services performed by her second firm, Monday Rodeheffer Jones & Albright, she requests an amount in excess of $60,000.00.² Ward also seeks $2,625.55 in costs.

The Department has likewise petitioned the Court for an award of its attorney's fees and costs as a sanction against Ward and her counsel for "unreasonably and vexatiously multiplying the proceedings." See 28 U.S.C. § 1927. The allegedly sanctionable conduct occurred when Ward asserted and maintained claims that the Department argues lacked a legal and factual basis. Section 1927 allows a party to recover its attorney's fees and costs under such circumstances, as a sanction against an opposing party. Defendant Department seeks a total of $104,175.12 for its time and costs connected with defending against the allegedly groundless claims.

On April 1, 1996, a jury verdict was entered in favor of the Department on Ward's Title VII sexual harassment claim and in favor of Ward on her retaliatory discharge claim. Prior to trial, the Title VII claims brought against Sheriff James Schroeder, Matthew Thompson and Chester Netherton in their individual capacities had been dismissed. See Order on Motion to Dismiss dated Oct. 27, 1995. During the trial the Court granted the Department's motion for judgment as a matter of law on Count III of the Complaint, which included Ward's state law claims of defamation, intentional infliction of emotional distress, tortious interference with a prospective business relationship, and wrongful discharge. Counts I and II remained, which were the sexual harassment/hostile environment and retaliatory discharge claims (Count I), as well as the § 1983 claim based on an alleged violation of Ward's First Amendment rights (Count II). The Court subsequently dismissed the First Amendment claim prior to submitting the case to the jury.

I. EQUITABLE RELIEF

A. Standards

A victim of discrimination in violation of Title VII is presumptively entitled to complete relief. Hutchison v. Amateur Elec. Supp., Inc., 42 F.3d 1037, 1044 (7th Cir.1994) (citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280 (1975)). In that regard, a successful Title VII plaintiff may obtain appropriate injunctive relief, which may include (but is not limited to) reinstatement or hiring, with or without back pay, "or any other equitable relief as the court deems appropriate." See 42 U.S.C. § 2000e-5(g). Under certain circumstances, and in lieu of reinstatement, courts have the discretion to award an amount of damages for front pay.³ Downes v. Volkswagen of America, Inc., 41 F.3d 1132, 1141 (7th Cir.1994). Front pay is an equitable substitute for reinstatement. Dominic v. Consolidated Edison of New York, Inc., 822 F.2d 1249, 1253 (2d Cir.1987).

Although reinstatement is the preferred remedy, it is not always appropriate. Hutchison, 42 F.3d at 1045. A number of factors should be considered when determining its propriety, including hostility in the past employment relationship and the absence of an available position for the plaintiff. Downes, 41 F.3d at 1141. If reinstatement is deemed inappropriate, it becomes necessary to assess the proper amount of front pay damages that would make the plaintiff whole.

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.

Id.; Williams v. Pharmacia Opthalmics, Inc., 926 F.Supp. 791, 796 (N.D.Ind.1996) (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, 42 F.3d at 1045. 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).

As noted, a successful plaintiff may also obtain an award of back pay. Generally, that award extends from the date of the adverse employment action until reinstatement. McKnight v. General Motors Corp., 973 F.2d 1366, 1369 (7th Cir.1992), cert. denied, 507 U.S. 915, 113 S.Ct. 1270, 122 L.Ed.2d 665 (1993). Once a plaintiff establishes the amount of back pay she claims to have lost because of her employer's discrimination, the burden of production shifts to the defendant. Unless the defendant can show either that the plaintiff failed to mitigate her damages or that the amount is incorrect, back pay will be awarded. Hutchison, 42 F.3d at 1044. To establish a failure to mitigate, a defendant must show: 1) the plaintiff failed to exercise reasonable diligence to find other employment; and 2) there was a reasonable likelihood that by exercising such diligence the plaintiff would have found comparable work. Id.

"Comparable work" is a term that appears in both back and front pay determinations. It has been defined, with reference to mitigation, as a position that affords the plaintiff "virtually identical promotional opportunities, compensation, job responsibilities, working conditions and status" as the previous position. Id. There is no reason to think the term means anything different in the front pay context. "Title VII claimants are not obliged to go into another line of work, accept a demotion, or take a demeaning position," in order to mitigate their damages. Wheeler v. Snyder Buick, Inc., 794 F.2d 1228, 1235 (7th Cir.1986) (citing Ford Motor Co. v. E.E.O.C., 458 U.S. 219, 231, 102 S.Ct. 3057, 3065, 73 L.Ed.2d 721 (1982)); see also Pierce, 65 F.3d at 575 (plaintiff who had been a senior analyst did not have to suffer the "great humiliation" of being a file room clerk in order to avoid a reduction in his award).

In McKnight, the trial court had awarded the victim of race discrimination both compensatory and punitive damages pursuant to 42 U.S.C. § 1981, but had denied reinstatement and front pay. McKnight, 973 F.2d at 1369. The appellate court vacated the § 1981 award, and remanded the case for determination of whether McKnight should be reinstated or given front pay to be made whole. Id. Upon remand, the trial court decided that reinstatement was inappropriate because McKnight sought a completely different job, for which he could not prove he was qualified and the availability of which was uncertain. Id. at 1370. This left the issue of front pay to be decided.

The McKnight court stated that "to recover lost earning capacity, a plaintiff must produce `competent evidence suggesting that his injuries have narrowed the range of economic opportunities available," or a diminution in his ability to earn a living. Id. Such damages, the court noted, "are not intended to insure a plaintiff's future financial success." Id. at 1371. Instead, they should extend only until a date at which "the sting of any discriminatory conduct has ended." Id. In another case the court noted that date to be when "the wounds of discrimination should have healed." Smith v. Great Amer. Rest., 969 F.2d 430, 438 (7th Cir.1992) (citing Syvock v. Milwaukee Boiler Man. Co., Inc., 665 F.2d 149, 160 n. 14 (7th Cir.1981), overruled on other grounds, Coston v. Plitt Theatres, Inc. 860 F.2d 834, 837 (7th Cir.1988)).

To prove the proper amount of front pay, a plaintiff is expected to provide the court with data as to the length of time she would have worked for the defendant, the amount of money she would have made in that period of time, and the applicable discount rate. McKnight, 973 F.2d at 1372. Although front pay awards are by nature speculative, the longer the period of time for which an award is sought, the more speculative it becomes. Id. The McKnight court's refusal to grant an award on the grounds that McKnight had failed to present any evidence with which to calculate a front pay award, was upheld on appeal. Id.

With these standards and guidelines in mind, the Court now turns to Ward's requests....