JOAN B. GOTTSCHALL, District Judge.
As the jury found in favor of the plaintiff in July 2014, the plaintiff respectfully requests that judgment be entered in favor of the plaintiff and against the defendant.
Directed by the city, Sgt. Knasiak refused to settle this case. Therefore, the plaintiff was forced to incur the time and expense of a nearly 2 week trial. The plaintiff won. Consequently, pursuant to FRCP 54, the plaintiff is entitled to a judgment listing all the elements of the relief allowed by law. FRCP 54 (c) states "every . . . final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings." Whether the city has now agreed to pay these elements is inconsequential to whether the plaintiff is entitled to a judgment listing all of the elements of relief. The city's agreement to pay could be consequential if the city reneges on its agreement and the plaintiff proceeds with collection.
The Seventh Circuit teaches that the District Court must enter judgment based upon the relief to which the plaintiff is entitled.
Judgments are part of the public record. They are not secret or confidential. Unless a judgment includes all of the relief to which the plaintiff was entitled, effectively, the defendant and the city would be keeping certain information secret and confidential from the public. Neither the defendant, nor the city, at any time during the past 2 years, have cited any case law that does not prohibit them from doing this.
Future plaintiffs suffering similarly as the plaintiff are entitled to see in the public records the relief to which they may be entitled based upon the relief to which the plaintiff was entitled. Also, such information could assist future victimized plaintiffs. Indeed, under the Freedom of Information Act (FOIA) the city could be required to disclose all of the elements of damages to which they have now agreed to pay. However, the city could perhaps circumvent FOIA and fail to disclose in a future FOIA request what they have agreed to pay in
The public should be able to see the consequences of defendants violating the laws and discriminating against people. Indeed, "after identifying the actual victims, the court must do its best to recreate the conditions and relationships that would have existed if the unlawful discrimination had not occurred. . . . The Court has held that a finding that an employer engaged in employment discrimination in violation of Title VII triggers a rebuttable presumption that the claimant is entitled to an award of back pay and retroactive seniority. . . . To defeat a Title VII plaintiff's claim for damages, the employer must prove that the plaintiff was not an actual victim of discrimination. . . . The employer must provide clear and convincing evidence to meet its burden."
The city has already argued that based upon Seventh Circuit case law it is not obligated to pay the attorney's fees of the plaintiff as the judgment would only be for punitive damages and would have no compensatory or equitable damages. Reply to response to motion to amend, page 12, 13, Doc 438. Effectively, the city argues that Sgt. Knasiak should pay for all of the attorney's fees of the plaintiff. However, in the plaintiff's previous briefs, the plaintiff cited authority that the city must pay for all elements of damages assessed against Sgt. Knasiak, including attorney's fees. 745 ILCS 10/9-109, 10/9-102; Collective Bargaining Agreement (CBA) Article 22.1 (the city must "pay for damages and monies which may be adjudged, assessed or otherwise levied against any sergeant"). Motion to Amend Complaint to Include Count against City, Doc 427; Reply to Response to Motion to Amend Complaint to Include Count against City, page 8, Doc 438. Indeed, pursuant to the CBA, the city has paid all of the attorney's fees of Sgt. Knasiak and has controlled his defense. CBA, page 1, 38, 212-to 16, Exhibit IV, Reply to Response to Motion for Ruling on Certain Issues, Doc 401. As the plaintiff is the prevailing party, the positions of the parties have changed because of the jury's verdict in favor of the plaintiff, the city should pay the attorney's fees of the plaintiff. Nevertheless, at this juncture, the judgment needs to be entered.
Also, because of the plaintiff's lawsuit, under law, the plaintiff is entitled to elements of equitable damages, i.e., back wages, overtime, the monthly "stipend" and so forth. id., see,
The 14 August 2015 order denying the plaintiff's Motion for Ruling on Certain Issues with Calculations to Follow after the Court's Ruling states 1) that the plaintiff requested three elements of damages and that the plaintiff's final brief included additional elements of damages and 2) that the plaintiff's motion requested to resolve the amount of lost wages. Respectfully, the plaintiff's motion sought a ruling on three elements of damages (back wages, front pay and compensation for negative tax consequences) and not to resolve the amount of lost wages. In fact, respectfully, the title of the motion requested only a ruling on certain issues with the calculations and the amounts to follow thereafter. The plaintiff only requested a ruling on certain issues based upon his belief and hope that the defendants would not break their word and would stand by the agreement between the parties. On the last day of the trial, the parties had agreed that they would work together to calculate the amount owed to the plaintiff and then present the calculations to this Court to enter as part of the judgment.
The 14 August 2015 order, page 1, states that in the plaintiff's final brief, the plaintiff included other elements of damages. The plaintiff did include other elements of damages because, as stated, there was no dispute regarding them, for example, prejudgment interest, the $175 stipend monthly, overtime and so forth. Doc 400, page 3 of 4.
Also, regarding the elements of damages to which there had been a dispute, the dispute ended when the city finally agreed to pay many elements of damages, for example, back wages, overtime, holiday pay and front wages in the sense that the city agreed to promote the plaintiff to become a canine handler which pays a higher salary. Therefore, at the time the plaintiff filed the final brief referred to in the 13 August 2015 order, the only task that remained was to include the damages to which the city finally agreed to pay in the judgment.
Notably, though since approximately July 2015 Knasiak and/or the city mentioned at one or two status hearings and in their written submissions that this Court need not itemize all of the elements of damages in the judgment as the issues are "moot", neither of them filed any motion regarding mootness. Neither of them at any time cited any case law. When the city and the defendant mentioned mootness at the status hearings, no motion was pending regarding mootness. Apparently, the city and Sgt. Knasiak had planned to argue mootness at the July 2015 status hearing—without giving any notice to the plaintiff. Neither Knasiak nor the city presented, at any time, any legal authority that a judgment need not itemize all of the elements of damages if the defendant agrees to pay them.
Nevertheless, mootness is inapplicable to this case because the defendant forced the plaintiff to proceed to a nearly 2 week trial. The plaintiff has won, and so, what is left is the administrative task of listing the elements of damages in the judgment. Whether the city has paid most of the elements of damages and has finally promoted the plaintiff to a canine handler is irrelevant to whether the judgment should list all of the elements of damages. It could be relevant if the plaintiff sought to proceed with collection proceedings. However, the instant posture of the case does not involve collection.
No ruling or advisory opinion is needed by this Court because the city and/or Sgt. Knasiak have agreed to pay nearly all of the elements of damages to which the plaintiff is entitled. Listing those elements of damages in the judgment would not be issuing an advisory opinion, but memorializing in the public records the damages to which the plaintiff is entitled under law.
Consequently and respectfully, the cases cited on Pages 3, 4 of the 14 August 2015 order are inapplicable or distinguishable. For example,
The 14 August 2015 order also cited
Respectfully, the plaintiff requests that Her Honor enter a judgment with the following amounts:
Except for the punitive damages, the city has paid the above damages.
In the 14 August 2015 order, page 4, the court requested that the plaintiff advise the court before judgment is entered if the plaintiff required a dismissal without prejudice to allow the court to retain jurisdiction to ensure that the city of Chicago does not renege on the agreement. Indeed, the plaintiff's complaint, ¶ 108, 145 requests that the court retain jurisdiction to ensure that the defendant stops violating the law against the plaintiff. Effectively, as the city is liable under Illinois law and the CBA to pay for any damages assessed against Sgt. Knasiak and the city has agreed to pay the plaintiff's requested elements of damages, maintaining jurisdiction to ensure that the city does not renege on its agreement would entail ensuring that the laws protecting the plaintiff are not violated any further.
Thus far, the city of Chicago has tendered to the plaintiff the aforementioned elements of damages except for the punitive damages. Also, the plaintiff was being trained to become a canine handler. The plaintiff must remain as a canine handler until he retires. In other words, the city of Chicago cannot in the future decide to find ways to renege on its agreement and find fault with the plaintiff if, for no other reason, to retaliate against him.
HARRY D. LEINENWEBER, District Judge.
Before the Court is the Plaintiff's Motion for Summary Judgment with respect to Post-Verdict relief. For the reasons stated herein, the Court grants in part and denies in part Plaintiff's Motion.
After a two-day trial, a jury returned a verdict in favor of Plaintiff Daniel Lalowski (hereinafter, the "Plaintiff" or "Lalowski") on his Title IX retaliation claim against Defendants Corinthian Schools, Inc. and Corinthian Colleges, Inc. (hereinafter, collectively, the "Defendants" or "Corinthian"). Specifically, the jury determined that Defendants retaliated against Lalowski by terminating his employment shortly after he notified Defendants' President that his supervisor was engaging in sexually inappropriate behavior with students. As a result of the termination, the jury found Lalowski suffered mental and emotional distress and awarded the sum of $25,000 in damages.
At the conclusion of the trial, the Court directed the parties to file Motions for Post-Verdict Relief. On September 26, 2012, Plaintiff filed his Motion, styled as a Motion for Summary Judgment. In the Motion, Plaintiff requests that the Court award him economic damages for back pay and lost benefits. In addition, he asks to be reinstated in a position with Defendants or alternatively, to receive
Summary judgment is appropriate if the moving party "shows that there is no genuine dispute as to any material fact and [it] is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A dispute is "genuine" if the evidence would permit a reasonable jury to find for the non-moving party.
Lalowski prevailed on his Title IX retaliation claim against Defendants. The Seventh Circuit applies the same framework for retaliation claims under Title IX as retaliation claims under Title VII. See,
Back pay and
Lalowski seeks back pay and reinstatement from Defendants. He alternatively requests
Lalowski seeks $214,638.00 in back pay. He claims he is entitled to this amount of money because he was reasonably diligent in his job search after being terminated, but was unable to find comparable employment and because he lost 401(k) benefits as a result of Defendants' unlawful termination. Defendants oppose such an award. They claim Lalowski is not entitled to any back pay because he failed to mitigate his damages and rejected an offer of comparable employment after being terminated.
"Title VII triggers a rebuttable presumption that a claimant is entitled to an award of back pay."
Back pay is calculated by "measuring the difference between actual earnings for the period and those which . . . [Plaintiff] would have earned absent the discrimination by the defendant."
In order to prove Lalowski failed to mitigate his damages, Defendants must prove that (1) Lalowski failed to exercise reasonable diligence to mitigate his damages; and (2) there was a reasonable likelihood that Lalowski would have found comparable work by exercising such diligence.
Lalowski admits he "did not actively seek work for about three to six months due to the depression and stress he suffered . . ." as a result of his termination. Pl.'s Mem. in Supp. of his Mot. for Summ. J. to Post-Verdict Relief at 3, ECF No. 89, Page ID #1057. Defendants contend this admission illustrates Lalowski's failure to mitigate and necessitates a reduction in back pay. Plaintiff argues his initial period of inactivity was excused because of the distress he suffered as a result of Defendants. Plaintiff relies on Gurnee Inn Corporation as support. The Court finds Plaintiff's reliance misplaced.
In Gurnee Inn, the Seventh Circuit found a defendant could not establish a failure to mitigate defense notwithstanding the fact the plaintiff admitted she waited a period of time prior to seeking new employment. Id. at 818, n.4. The plaintiff in Gurnee Inn was a 15-year-old high school student who was sexually harassed by her employer. Id. In light of the plaintiff's age and lack of work experience, the Seventh Circuit determined it was not "unreasonable under the circumstances" for her to "wait some period before again looking for work." Id.
The facts in Gurnee Inn are distinguishable from those here. First, it is undisputed Lalowski is an adult who graduated from high school in 1996. Def.'s Resp. to Pl.'s Statement of Uncontested Material Facts at 2. Next, unlike the plaintiff in Gurnee Inn who personally suffered sexual harassment, Lalowski did not. Instead, he reported his supervisor for engaging in inappropriate sexual conduct with students.Id. at 7. While the Court does not intend to minimize the mental and psychological stress that corresponds with reporting a colleague of such conduct, the Court does not consider this circumstance analogous to a teenager who was sexually harassed at her place of employment. Accordingly, the Court finds Defendants have met their burden in establishing Lalowski failed to exercise reasonable diligence for the first six months after his termination.
After these initial six months, however, Lalowski has provided sufficient evidence to demonstrate he has engaged in reasonable efforts to secure employment. Specifically, Lalowski submitted work search records from the Illinois Department of Employment Security from August 2, 2010 to December 17, 2010. He claims he also had multiple interviews for various positions at the end of 2009 and the beginning of 2010. Additionally, he provided employment records which reflect employment as a car salesman beginning in February 2011. Lalowski states he remained employed as a car dealer until he resigned so he could begin working in his current job. Id. at 13. His current employer is a college advisory service company that provides consultative advice on degree programs over the telephone. Id.
In light of the evidence Lalowski presented, the Court finds Defendants cannot establish Lalowski failed to exercise reasonable diligence in his search for employment after his initial six months of inactivity.
In order to prevent an award of back pay, Defendants also must demonstrate there was a reasonable likelihood that Lalowski would have found comparable work if he exercised reasonable diligence in his job search.
Defendants claim they can satisfy this requirement because Lalowski rejected an offer of comparable employment approximately one year after his termination. Lalowski argues the job offer he received was for substantially less pay than his position with Defendants and thus cannot be construed as comparable employment.
Prior to his termination, Lalowski was employed as an admissions representative with Defendants. Since he began his employment with Defendants, Lalowski received a number of awards and increases in pay. It is undisputed that in January 2009 (when Defendants terminated Lalowski) he earned an annual salary of $64,260. Def.'s Resp. to Pl.'s Statement of Uncontested Material Facts at 6, ECF No. 95, Page ID# 1272.
Lalowski admits that in approximately January 2010, he had a job interview for a position as an admissions representative at another college similar to Defendants. Lalowski recollects receiving a verbal offer of employment from this college, but is unaware if the school was Illinois Institute of Technology ("ITT") or Westwood College. Lalowski claims he rejected the offer because the job only paid $45,000 per year.
The only evidence Lalowski has produced regarding the amount of this offer is his own affidavit. Because of this, Defendants argue its evidence of Westwood College's records "constitute the strongest evidence of the amount of the job offer." Defs.' Mem. in Opp. to Pl.'s Mot. for Summ. J. to Post-Verdict Relief at 6 n.4.
However, even if the Court assumes Defendants are correct and the offer was in fact from Westwood College and not ITT, the evidence Defendants present make it clear that a newly-hired admissions representative at Westwood College receives a base salary between "$28,000 to $49,500 . . ." Defs.' App. of Ex. in Supp. of Defs.' Opp. to Pl.'s Mot. Tab 4 at 2. It goes without saying this salary is well below that which Lalowski earned with Defendants.
Despite this difference, Defendants contend the Westwood College offer was an offer of comparable employment. They argue Plaintiff had an obligation to reduce his salary demands after he failed to find comparable employment after attempting to do so for a few months. Defendants cite Hutchinson as support for this obligation. The Court finds Defendants' support misguided.
In Hutchinson, the Seventh Circuit affirmed a district court's conclusion that it was appropriate for a jury to exclude the above market compensation a plaintiff received when analyzing Plaintiff's reasonable efforts to find comparable employment. Hutchinson,
Additional support for this finding lies in the definition of comparable employment. See
In this case, Defendants failed to present evidence that there was a reasonable likelihood that Lalowski would have found comparable work if he exercised reasonable diligence. The fact that Lalowski initially accepted employment as a car salesman suggests that making such a showing in the current job market is perhaps easier said than done. Regardless, the Court finds Defendants cannot demonstrate the affirmative defense of failure to mitigate. Therefore, Lalowski is entitled to back pay.
Lalowski claims he is entitled to $214,638.00 in back pay. Lalowski's calculations are for the time period of Lalowski's termination through the date judgment was entered and include an annual salary increase of five percent.
Lalowski argues an annual five percent salary increase is appropriate because his salary had increased twenty-five percent for two years. The Court finds this increase speculative and finds the evidence Defendants presented regarding the fact that Lalowski was earning "nearly the maximum salary budgeted for his position in 2009[,]" persuasive. Defs.' Statements of Add. Facts in Opp. to Pl.'s Mot. at 8. Accordingly, the Court declines to apply this five percent increase.
The Court also declines to award Plaintiff back pay for the first six months after his termination. During this time, Lalowski admitted "he was not able to look for a job due to his depression and `shell shock.'" Pl.'s Statement of Uncontested Facts at 4, ECF No. 90, Page ID #1068. While he argues that this period of time should be excused because Defendants inflicted severe distress on him, the Court does not find the circumstances of this case justify Lalowski's conduct, (or lack thereof). See,
Defendants claim if Plaintiff is entitled to back pay, he should only receive $34,970. Defendants argue this amount excludes (1) the first six months Plaintiff admitted he did not seek employment; (2) the time Plaintiff was unemployed after he refused the alleged comparable offer from Westwood College; and (3) the time after Defendants closed the campus Lalowski worked.
The Court agrees with Defendants with respect to the first six months after Lalowski was terminated. However, the Court finds Defendants' other contentions belie the purposes of discrimination and retaliation claims under Titles VII and IX. In these cases, the Seventh Circuit has repeatedly held that if a plaintiff proves discrimination or retaliation, back pay may only be denied "for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination . . . and making persons whole."
The Court is equally unconvinced with Defendants' argument regarding the closure of the campus where Lalowski was employed. While it is undisputed Defendants closed the admissions department of the campus at which Lalowski worked in January 2012, it is also undisputed that Defendants own at least six other college campuses in the Chicagoland area. Defs.' Statement of Additional Facts in Opp. to Pl.'s Mot. for Summ. J. at 8. In light of this fact, Lalowski argues it is plausible he would have been transferred to another campus to work as an admissions representative. See Pl.'s Reply Memo. at 10, ECF No. 97, Page ID # 1308. As support, he presents evidence of another admissions representative who was transferred to a different campus to work as an admissions representative after Defendants closed the one Lalowski worked. Lalowski also provides evidence that Defendants transferred a president from one of its older campuses to become the first president of its new Melrose Park campus.
Given these facts, the Court does not find this to be a scenario where Defendants can definitively know Lalowski would have been laid off after the campus he worked at closed. See
Accordingly, the Court awards Plaintiff $30,546 for the year 2009 (his base salary minus his earnings from Defendants for January 1, 2009 through January 9, 2009 (his termination date) and minus the first six months after his termination when he admitted he did not look for other employment); $64,260 for 2010 and 2011 (his full base salary at the time of termination); and $41,501.25 for 2012 (his base salary for January 1, 2012 through August 22, 2012, the date judgment was entered). The Court subtracts $34,250 from this total, as this is the amount Lalowski claims he earned from his other jobs for this period of time. Def.'s Resp. to Pl.'s Statement of Uncontested Material Facts at 13, ECF No. 95, Page ID# 1279. As such, the Court awards Lalowski $166,317.25 in back pay.
In addition to his back pay request, Plaintiff also seeks to be reimbursed $6,222.22 in 401(k) contributions. Lalowski states Defendants matched contributions up to 2.5%. He avers that if he remained employed with Defendants, he would have made the maximum contributions. However, the only evidence Lalowski submits to support this statement is a pay stub from 2008. See ECF No. 91-4, Page ID# 1107. The pay stub indicates Lalowski had grossed $58,760.76 as of December 28, 2008 and contributed $885.98 to his 401(k). This constitutes a 1.5% contribution. Accordingly, the Court awards Plaintiff $2,494.76. This amount reflects 1.5% of $166,317.25, Plaintiff's back pay award. See
Plaintiff also seeks prejudgment interest on his back pay award. He claims he is entitled to interest at a rate of 3.25%. The Court agrees.
Parties who prevail on their Title VII or Title IX retaliation claims are entitled to prejudgment interest on their back pay award. See
Lalowski also seeks reinstatement. He requests to be reinstated to one of the six campuses Defendants own in the Chicagoland area. Lalowski submits computer printouts of job openings for admissions representatives at some of these campuses and states that Defendants have posted two of these openings in the past two years. Defendants respond reinstatement is not feasible since they closed the campus Lalowski worked.
The intent of Title VII (and in this case, Title IX) is to restore a plaintiff to the situation he would have been in had no retaliation occurred.
When determining whether or not reinstatement is appropriate, courts in this Circuit examine various factors. Such factors include (1) the hostility of the employer; (2) the lack of available positions; and (3) the employer's dissatisfaction with the employee's job performance. See
The same is not true here. In this case, Lalowski seeks to be reinstated in the exact same position held prior to his termination. Moreover, Lalowski has presented evidence that there are at least two openings for admissions representatives at one of Defendants' campuses in the Chicago area. See ECF No. 91-15. In addition to this, Defendants admit all of the individuals involved in Lalowski's termination are no longer employed with Defendants. See Defs.' Resp. to Pl.'s Statement of Uncontested Material Facts at 19. Taking these facts into account, the Court finds reinstatement appropriate and grants Lalowski's request.
Defendants also claim reinstatement should be denied because at his deposition Plaintiff admitted he did not list all of his former employers on his resume. Apparently one of the employers that were not listed was a retail store that terminated Plaintiff. Defendants claim they would have terminated Lalowski had they discovered this while he was employed. They state it is their policy to terminate an employee when they discover the employee was dishonest on his resume. As support, Defendants provide the declaration of their Vice President of Human Resources. See ECF No. 94-3.
A defendant in an employment discrimination or retaliation case can assert an after-acquired evidence defense. See generally
The Court finds Defendants have failed to meet this burden. In fact, their argument is nearly identical to one this Court rejected in
Like the employer in Custom Companies, Defendants here do nothing more than assert Lalowski would have been fired after they discovered he failed to include all his employers on his resume. Defendants fail to present any evidence that in the past they have fired other employees for such conduct. In fact, the only evidence Defendants provide is the aforementioned declaration. The Court finds this falls short of a preponderance of evidence. As such, the Court rejects Defendants after-acquired evidence defense and finds reinstatement appropriate.
Lalowski requested
For the reasons stated herein, the Court grants in part and denies in part Plaintiff's Motion for Summary Judgment. The Court awards Plaintiff: (1) $166,317.25 in back pay; (2) $1,638.00 in 401(k) contributions; (3) $5,405.31 in prejudgment interest; and (4) reinstatement.
IT IS SO ORDERED.
For example, the plaintiff did not cite legal authority or a reasoned argument whether back wages and front wages were recoverable under §1981 and §1983 because the parties agreed that the plaintiff was entitled to these back wages. If Sgt. Knasiak had not agreed to this, then the plaintiff would have cited case law in his initial motion. Notably, in a subsequent, pending brief, the plaintiff did cite case law that the plaintiff was entitled to lost wages under §1981, 1983. Plaintiff's reply to city of Chicago's response to plaintiff's renewed motion to amend the complaint to include a count against the city of Chicago for indemnification, page 2, Doc. 438. The plaintiff cited
Also, though Sgt. Knasiak did not agree that the plaintiff was entitled to front wages, it was not because such could not be granted under §1981 or §1983. Indeed, if such were Sgt. Knasiak's reason, then the plaintiff would have cited the appropriate case law in the plaintiff's Motion for Ruling. Doc 397.
The plaintiff realizes that the 14 August 2015 order, page 4, denied the plaintiff's request for prejudgment interest stating 1) that it was not in the plaintiff's Motion for Ruling on Certain Issues, 2) that it was not in the prayer for relief in the complaint, and 3) the plaintiff did not provide citations to authority. As with the other elements of damages to which the parties had agreed, the plaintiff did not provide citations to authority. Had the parties not agreed, then the plaintiff would have provided citations. The plaintiff has pending a motion to reconsider regarding prejudgment interest based upon the law that states that prejudgment interest should be granted to make the victimized plaintiff whole. Otherwise, the defendants breaking the law would be rewarded.