Wirtz v. Kansas Farm Bureau Services, Inc., 01-2436-KGS.

• Citation: 274 F.Supp.2d 1215
• Decision Date: 23 July 2003
• Docket Number: No. 01-2436-KGS.,01-2436-KGS.
• Parties: Thomas WIRTZ, Plaintiff, v. KANSAS FARM BUREAU SERVICES, INC., Defendant.
• Court: U.S. District Court — District of Kansas

Page 1215

274 F.Supp.2d 1215

Thomas WIRTZ, Plaintiff, v. KANSAS FARM BUREAU SERVICES, INC., Defendant.

No. 01-2436-KGS.

United States District Court, D. Kansas.

July 23, 2003.

COPYRIGHT MATERIAL OMITTED

David O. Alegria, McCullough, Wareheim & LaBunker, P.A., Topeka, KS, for Plaintiff.

Deena Hyson Bailey, Teresa L. Mah, Terry L. Mann, Martin, Pringle, Oliver, Wallace & Bauer, LLP, Wichita, KS, for Defendant.

MEMORANDUM AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR DAMAGES

SEBELIUS, United States Magistrate Judge.

This matter comes before the court upon the motion of plaintiff, Thomas Wirtz, for certain damages and costs against the defendant, Kansas Farm Bureau Services, Inc. ("KFBS") (Doc. 115). Defendant filed its Response on July 9, 2003. (Doc. 121). Plaintiff filed a Reply on July 17, 2003. (Doc. 124). For the foregoing reasons, plaintiffs motion is hereby granted in part and denied in part.

INTRODUCTION

On August 29, 2001, the plaintiff filed a claim under Title VII of the Civil Rights Act of 1964 ("Title VII")¹ against the defendant, alleging gender employment discrimination, sexual harassment/hostile work environment, and retaliation. The case was tried before a jury commencing on June 16, 2003. On June 23, 2003, the jury returned a verdict in favor of plaintiff on the claim of gender discrimination and in favor of defendant on the claims of sexual harassment and retaliation. The jury awarded the plaintiff $1000 in compensatory damages, $12,000 in pecuniary damages, and $20,000 in punitive damages. The jury, sitting in an advisory capacity, declined to award plaintiff any damages for lost wages or lost benefits. The question of future wages was not submitted to the jury.

Plaintiff now requests that the court award certain relief in this matter prior to entry of judgment. In particular, plaintiff prays for the following relief:

1. That the court award plaintiff back pay, consisting of past wages and past benefits;

2. That the court award plaintiff front pay;

3. That the court award plaintiff prejudgment and postjudgment interest;

4. That the court award plaintiff other equitable relief, consisting of reinstatement and posting of notices of defendant's violations of plaintiffs civil rights and other relief; and

5. That the court award plaintiff attorney's fees and costs.

DISCUSSION

A. BACK PAY

Plaintiff made a claim in this case for back pay damages from the date of termination until the date of trial. Plaintiff's discovery responses indicate a claim for back wages and benefits in the amount of $104,000. Plaintiff's lost wages and benefits claim in the Pretrial Order was in the amount of $60,000. During trial, plaintiff's counsel represented that plaintiff had lost $10,000 to $12,000 in three months he was out of work and asked the jury to award him that amount in back wages. The jury's advisory verdict for lost wages and lost benefits was zero. Plaintiff now renews his request for $12,000 in lost wages plus $3,000 in lost benefits.

Back pay is an equitable remedy available to plaintiffs in Title VII actions. The court has the discretion to award plaintiff back pay if it deems such award necessary to make plaintiff whole.² In Albemarle Paper Co. v. Moody, the Supreme Court held that "given a finding of unlawful discrimination, backpay should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination."³ "A finding of a violation of Title VII presumptively entitles the victim of the discrimination to an award of employment, retroactive promotions and raises, and backpay including lost benefits."⁴ While back pay is available to a plaintiff who has been wrongfully terminated, Title VII imposes an obligation on the plaintiff to mitigate damages by seeking other employment.⁵

Back pay is designed to compensate the plaintiff for wages lost between the time of termination and the time of trial.⁶ If the calculation is performed over the entire time span between termination and trial, it is sometimes termed the "aggregate" method. In cases where the plaintiff was able to find another job prior to the successful resolution of the issues at trial, a "periodic method" of calculating back pay may also be appropriate.⁷ In the instant action, plaintiff was, in fact, able to obtain new employment with Venator Group within approximately three months of termination, earning a higher starting salary.

Notwithstanding plaintiff's new employment, plaintiff requested back pay from the date of termination to the date of the trial. Furthermore, both parties submitted and neither party objected to a jury instruction utilizing the aggregate method of lost wage calculation. The court gave the parties an opportunity to reconsider the charge by suggesting an alternative instruction requesting damages for lost wages between the time plaintiff was fired and the time he found a new job at Venator Group, in effect limiting the award to three months. The parties declined. Armed with this instruction, the jury found that plaintiff sustained no damages due to lost wages or lost benefits.

Defendant submits that under the calculation method presented `to the jury, plaintiff suffered no lost wages or lost benefits, as his new employment was at a higher salary than his employment with the defendant. According to the defendant, plaintiffs higher salary with Venator Group offset any losses plaintiff may have suffered as a result of his termination. In so arguing, defense counsel assumes a hypothetical $1,000 annual increase in plaintiffs salary with the defendant every year for the past three years.

The court accepts defendant's view of plaintiffs likely salary increases had he remained in defendant's employ. Although the court recognizes that plaintiff did in fact receive pay raises of approximately $3,000 in 1998 and $8,000 in 1999, defendant presented testimony at trial that this rapid increase was unusual and designed specifically to bring the plaintiff and other KFBS employees in line with market salaries. Given that in 1999 the plaintiff was earning a salary comparable to market — a .98 comparison ratio⁸ — the court has no reason to assume that such a large pay increase would be repeated in the future. Plaintiff presented no testimony to convince the court otherwise.

The jury, in its advisory capacity, found that plaintiff, who lost his job for three months and then obtained employment at a higher wage rate, did not suffer any lost wages in this matter over the aggregate time period. Because equitable damages are the exclusive province of the court, "considerable discretion is vested in the district court when devising remedies for Title VII violations."⁹ The court, in particular, has the power to disregard the jury's advisory verdict when such verdict does not comport with the purposes of Title VII.¹⁰

In this case, the plaintiff was terminated on April 13, 2000 and began new employment on July 24, 2000.¹¹ Because the jury's verdict on back pay is only advisory, the court must make its own determination of plaintiffs losses and award back pay, if any, accordingly. Pursuant to the Tenth Circuit decision in Godinet, this court will calculate plaintiffs back pay loss on a periodic basis. Evidence presented at trial demonstrates that on October 25, 1999, plaintiffs yearly salary was $39,468 and his monthly rate was $3,289.¹² The same Trial Exhibit shows that plaintiff received a $1,000 bonus. Plaintiffs counsel argues that the $1,000 payment represents an upward "adjustment" in plaintiffs salary. The court disagrees. The $1,000 payment is specified to be for pay period "Dec. 1 — Dec. 15."¹³ In the court's view, this lump sum payment represents a bonus, whose payment appears to coincide with the end of the year, when such bonuses are customarily paid. Defendant suggests and the court accepts that plaintiffs salary may have increased by $1,000 each year. As of April 13, 2000, plaintiffs monthly salary was $3,289. However, when such $1,000 is taken into account at the end of the calendar year 2000, plaintiffs annual salary for year 2000 would be $40,468 and his monthly salary would be $3,372. Given this estimate of plaintiffs monthly salary, the court finds that between April 13, 2000 and December 31, 2000, plaintiff would have earned $28,662.¹⁴

Plaintiff suggests that his salary at KFBS would have increased dramatically based on past increases, with further increases upon completion of Cisco certification. The court believes plaintiff presented no evidentiary basis to justify such increases. Given the $1,000 annual increase discussed above, in 2001, plaintiffs annual salary would have been $41,468; in 2002, $42,468; and in 2003, $43,468. Respectively, plaintiffs monthly salary in 2001 would have been 83,456; in 2002, $3,539; and in 2003, $3,622. The trial in this case commenced on June 16, 2003. If the plaintiff were still employed by KFBS, he would have earned $19,921¹⁵ between January 1 and June 16, 2003.

On July 24, 2000, plaintiff was hired as a radio frequency technician with the Venator Group. His starting annual salary was $42,000 plus a bonus of 5% based on achieving corporate objectives. Without a bonus, plaintiff's monthly salary in 2000 was $3,500. Based on the plaintiffs start date, the court finds that the plaintiffs minimum earned salary from Venator Group in 2000 would have been $21,000, and maximum, taking into account the 5% bonus, $22,050.¹⁶ Because no evidence was presented either way, the court will err on the side of the plaintiff and assume that he did not receive a bonus in 2000. As evidence of plaintiffs 2001 salary, defendant presents plaintiffs response to Interrogatory No. 4, where plaintiff states that his income from Footlocker (known in this order as Venator Group) was $43,462.¹⁷ This would...