MARK W. BENNETT, District Judge.
TABLE OF CONTENTS
I. INTRODUCTION .........................................................901
A. Procedural Background ............................................901
B. Findings Of Fact .................................................902
II. LEGAL ANALYSIS ......................................................907
A. Overview of the FMLA .............................................907
B. Dollar's FMLA Claims .............................................909
1. Dollar's FMLA retaliation claim ...............................909
2. Dollar's FMLA Interference Claim ..............................910
a. Eligible employee and employer .............................911
b. Serious health condition ...................................911
c. Notice .....................................................912
d. Denial of benefits .........................................913
3. Remedies ......................................................913
a. Compensatory damages .......................................914
b. Back pay and benefits ......................................915
c. Reinstatement versus front pay .............................917
i. Reinstatement ........................................918
ii. Front pay .............................................920
iii. Calculation of front pay ..............................923
d. Liquidated damages .........................................926
e. Liquidated damages: front pay ..............................926
f. Punitive damages ...........................................927
g. Interest ...................................................928
III. CONCLUSION AND ORDER FOR JUDGMENT ..................................929
May an employer lawfully fire an employee who is on short term medical leave for depression without considering whether the employee's leave was protected by the FMLA? This case presents that question. It also presents a corollary question, is the employee's ability to return to work considered in light of her job at the time she took her leave or in light of the job to which the employer transferred her while she was on leave?
On July 1, 2009, plaintiff Christine Dollar filed her Complaint against defendants Smithway Motor Xpress, Inc. and Smithway Motor Xpress Corp. (collectively "SMX"). In Count I, Dollar contends that SMX interfered with her right to take leave under the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. §§ 2601-2654, and that her termination was in retaliation
In July, both parties filed motions for summary judgment limited to Dollar's FMLA claims. After timely resistances, I denied the cross-motions for summary judgment. I heard this case in a bench trial on March 28, 2011. At the start of the trial, Dollar withdrew her Iowa common law claim. Plaintiff Dollar was represented by John P. Roehrick of Gaudineer, Comito & George, L.L.P., Des Moines, Iowa. Defendant SMX was represented by Isham B. Bradley, Nashville, Tennessee.
Defendant SMX is a national over-the-road trucking carrier. Its principal place of business was previously in Fort Dodge, Iowa.
SMX provides a handbook to its non-driver employees, such as Dollar, which explains various employee benefits and its employment policies and requirements. The handbook states that employees with less than three years of employment receive one week of vacation a year. It also contains the following explanation of SMX's "Pay Continuation for Illness or Disability":
Plaintiff's Ex. 2, Employee Handbook at 17.
Plaintiff's Ex. 2, Employee Handbook at 23-24.
Dollar was first employed by SMX in the fall of 1989. At that time, SMX had two divisions: the Van Division and the Flatbed Division. She was hired to work in the dispatch department as a billing clerk for the Flatbed Division. In her position as a billing clerk, Dollar was responsible for providing billing for drivers' bills of lading for a gypsum mill client. Beginning in January of 1998, Dollar suffered a bad bout of depression, and used up all 48 days of her banked sick leave. Dollar returned to work at SMX for a short period of time, then quit, after nearly nine years with SMX, to move to Georgia.
Dollar moved back to Iowa, and returned to work at SMX on March 22, 2006. Dollar again worked in the dispatch department, but as a load coordinator in SMX's Van Division, the only position available when Dollar applied. As a load coordinator, Dollar's primary responsibility was working with SMX's customers to obtain loads for drivers in her designated geographic area. She was paid a salary of $600 per week initially plus benefits that included health, dental, and vision insurance.
Dollar missed work on August 10, 2006, and August 11, 2006. After which, on August 23, 2006, Dollar was orally reprimanded by Wieland for her absenteeism. That same day, Wieland emailed Dollar a memorandum which summarized their conversation. In his memorandum, Wieland states:
Plaintiff's Ex. 1C, Memorandum at 1.
On September 21, 2006, Dollar had her six month job performance evaluation. Although the issue of her work attendance was noted, her work performance was found to be acceptable and she received a $25 a week raise in pay.
In December 2006, after working in the Van Division for nine months, Dollar was transferred to SMX's Flatbed Division as a driver manager. Dollar sought this transfer because she would enjoy work more if she was again in the Flatbed Division and having more contact with drivers. Todd Bird and Al Kellett became Dollar's supervisors. Bird was her direct supervisor and Kellett, as operations manager, was above Bird. As a driver manager, Dollar's duties were the opposite of her prior position as a load coordinator. She worked primarily with drivers, ensuring that they had loads to haul, overseeing their bills of lading, and checking their log books. As Dollar described it at trial, "you are a complete baby-sitter for drivers basically." Dollar was responsible for supervising 35 to 40 truck drivers. Dollar worked from 7:00 a.m. to 5:00 p.m. five days a week and rotated working on Saturdays.
Early in 2007, Dollar was suffering from depression, anxiety, and severe insomnia. Dollar was absent from work on March 8, for half a day on March 14, and for full days on March 15 and 16, 2007. On one occasion, Dollar suffered a severe anxiety attack at work, causing her to not return from her dinner break. Dollar provided medical excuses from her doctor for her absences on March 14th, 15th, and 16th. Dollar's direct supervisor, Bird, spoke to her about her absences but Dollar was not disciplined.
On March 29, 2007, Dollar had her annual job performance evaluation with Kellett. In his evaluation, Kellett referred to Dollar's absenteeism and indicated that her attendance was "Below Expectations." Plaintiff's Ex. 1B, Performance Review at 2. He also indicated that her productivity was "Below Expectations", noting that:
During the evaluation, Kellett mentioned the possibility of transferring Dollar to a different position, permitting her to fill her "niche" by working with drivers. This portion of their conversation was memorialized as follows in Kellett's evaluation:
Plaintiff's Ex. 1B, Performance Review at 4. Dollar's overall work performance was acceptable and she received a $25 a week raise. After her raise, Dollar's salary was $650 per week.
On June 10, 2007, Dollar was at her sister's house for their mother's birthday. Dollar's depression, anxiety, and insomnia were so severe that night that she had a friend, Sandy Mercer, and Mercer's daughter, Kyla, drive her to the emergency room at Trinity Regional Hospital in Fort Dodge. Dollar sought admission to the hospital's psychiatric ward. At the hospital, Dollar was examined and told that she was ineligible for hospitalization since she was neither suicidal nor threatening to harm another person. She was given a prescription for Ambien to help her sleep, and told to contact the mental health center the following day.
On June 11, 2007, before Dollar's work shift started at 7:00 a.m., she called her supervisor, Kellett, and left a voice mail message explaining that she would not be at work, that she was going to the doctor. Dollar then went to the North Central Iowa Mental Health Center and was seen by James B. Burr, a licensed mental health counselor. Dollar was diagnosed with depression, taken off the depression medications previously prescribed by Dr. Burkett, and put on different medications for her depression. Burr wrote her a medical excuse which stated: "Christine Dollar is being seen at the Mental Health Center for depression. She should stay off work through Tuesday June 19th." Plaintiff's Ex. 3, Medical excuse note at 1. The next day, Dollar left Kellett a voice mail message that she had been to the mental health clinic and received a medical excuse to be off work until June 19th. Dollar spoke by telephone to Kellett once between June 12th, and June 19th, when Kellett called Dollar on either June 13th or June 14th. During that conversation, Kellett told Dollar that she was no longer going to be working in the Flatbed Division as a driver manager and that Tom Nelson, SMX's Vice President of Human Resources and Safety, had another position in the company for her. Kellett, however, did not know the title or any specifics about the new position. Kellett also told Dollar that Nelson was on vacation that week but that Nelson was expecting her to be back at work on June 25th.
On June 19th, Dollar was seen at the Mental Health Center by Dr. Lee Berryhill, a psychiatrist. Dr. Berryhill advised Dollar to continue on the new medications prescribed to her on June 11th. Dr. Berryhill did not believe that Dollar was ready to return to work and gave her a medical excuse which stated: "Ms[.] Dollar is to remain on sick leave until July 9, 2007." Plaintiff's Ex. 4, Medical excuse note at 1. The following day, Dollar's father died. His funeral was scheduled for Monday, June 25th, the same day Dollar was expected back at work. On the morning of June 25th, Dollar called SMX and spoke to Nelson about her father's death. Nelson told Dollar that, after three or four days
The following day, Dollar went to SMX with a friend, Karen Bryne, in order to drop off her two medical excuses. Dollar and Bryne met with Nelson and Dollar gave him her two medical releases. Nelson told Dollar that he needed to fill the driver recruiter position and that, if she could not return to work immediately, he could not guarantee she would have a job at SMX. In response, Dollar told Nelson that she was not ready to return to work. Dollar also told Nelson that she had a medical appointment on July 3rd, with Diann Crane, an Advanced Registered Practical Nurse, at Trinity Regional Medical Center. Nelson told Dollar to contact him after that appointment and he would let her know if she still had a job at SMX.
On the morning of July 3rd, Dollar realized that, since her medical appointment was not until 4:30 p.m., she might not be back from the appointment in time to call Nelson during business hours. Dollar telephoned Nelson and explained. Nelson told Dollar that he was going to be off work on July 4th and July 5th, but that she should call him after her medical appointment and leave him a voice mail message. Later that day, Dollar was seen by Crane. Dollar told Crane that she did not feel any better and did not think she was getting any results from the new medications. Crane prescribed a new medication for Dollar. Crane also gave Dollar a medical excuse addressed to Nelson which stated: "Please excuse Christine from work until 7-30-2007. She is not ready to return to work on July 9, 2007." Plaintiff's Ex. 8, Medical excuse note at 1.
On July 5th, Dollar mailed Crane's medical excuse to Nelson. The following day, Dollar called Nelson to inquire whether he had received it. Nelson told Dollar that he had received it but that it didn't make any difference. In response, Dollar told Nelson that she still was not ready to return to work. Nelson responded that he needed to fill the driver recruiter position immediately and could not hold it until July 30th. Dollar then asked Nelson if he was firing her, he replied yes.
At the time she was fired, Dollar had been employed by SMX for over twelve months and had worked at least 1,250 hours during the preceding year. Dollar had missed 24 and one-half days of work during 2007. She had not exhausted her 48 banked days of sick leave. Nelson never offered Dollar FMLA leave nor informed her of her FMLA rights prior to terminating her. SMX did not request medical certification from Dollar under the FMLA before firing her.
On August 1, 2007, Dollar received a release to return to work from Crane which stated: "Christine is released to go back to work without restriction as of today." Plaintiff's Ex. 12 at 4, Medical release note at 1. Dollar never applied for employment with SMX after her termination on July 6, 2007. Dollar did not believe that SMX would re-employ her since she had just been fired. Dollar was never told by Nelson that she was a valued employee and the company wanted her back after she could resume working. At
On July 6th, the date of her termination, if Dollar had been able to return to work, she would have held the position of driver recruiter. Although Dollar had never worked in the driver recruiter position, she is aware of the basic requirements of that position. As of August 1, 2007, Dollar could have handled the stress and other job requirements of the driver recruiter position but not the stress of the driver manager position.
Following her termination, Dollar applied for unemployment compensation benefits. SMX filed an objection, contending that she was disqualified from benefits because she was discharged for misconduct. Specifically, SMX contended that Dollar had "Missed 28 days of YTD work + would not return." Plaintiff's Ex. 12 at 7, Notice of Claim at 1. Dollar was initially denied unemployment compensation benefits, but not because her actions constituted misconduct. Rather, she was denied benefits because she was found unable to perform work due to her illness. After Dollar received her release to return to work, Dollar was found to be qualified to receive unemployment compensation benefits. She received such benefits during two periods: from August 2007 until the end of January 2008, and July 2008 until October 2008. Dollar was required to apply for employment at at least two locations each week while she was receiving unemployment compensation benefits. During this time, Dollar also visited and provided care to her mother, who was suffering from a terminal illness. In October 2008, Dollar's unemployment compensation benefits stopped with her new employment as a part-time front desk clerk at a Days Inn in Fort Dodge. Dollar worked at the Days Inn for approximately two months before obtaining a full-time position at a Budget Host Inn in Fort Dodge as a front desk clerk and night auditor. Dollar is still employed in that position. She earns $10.00 per hour and works 48 hours per week. In 2009, Dollar earned $21,344 in her position. Dollar's current job does not provide any benefits.
In her complaint, Dollar alleges both retaliation and interference claims under the FMLA. See Stallings v. Hussmann Corp., 447 F.3d 1041, 1050 (8th Cir.2006) (noting two types of claims "under the FMLA: (1) `interference' or `(a)(1)' claims in which the employee alleges that an employer denied or interfered with his substantive rights under the FMLA and (2) `retaliation' or `(a)(2)' claims in which the employee alleges that the employer discriminated against him for exercising his FMLA rights." (citing 29 U.S.C. § 2615(a)(1)-(2))). Because Dollar's remaining claims are based exclusively on the FMLA, a brief overview of that act is necessary.
The FMLA was created to "balance the demands of the workplace with the needs of families, to promote the stability
Because the FMLA grants valuable leave and restoration rights to eligible employees, it also secures these rights against unlawful infringement by prohibiting employers from discriminating against employees for exercising their rights to take FMLA leave. See Rask, 509 F.3d at 471; Stallings, 447 F.3d at 1051; Smith v. Allen Health Sys., Inc., 302 F.3d 827, 832 (8th Cir.2002). Specifically, the act makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under" the FMLA. 29 U.S.C. § 2615(a)(1). As the Eighth Circuit Court of Appeals has explained:
Scobey, 580 F.3d at 785 (quoting Phillips, 547 F.3d at 909-10); see Estrada, 616 F.3d at 871. The court of appeals has recognized that "[c]onfusion often arises as to whether an employee's FMLA claim `is really about interference with his substantive rights, not discrimination or retaliation.'" Stallings, 447 F.3d at 1051 (quoting Kauffman v. Fed. Express Corp., 426 F.3d 880, 884 (7th Cir.2005)). "`The difference between the two claims is that the interference claim merely requires proof that the employer denied the employee his
Stallings, 447 F.3d at 1051 (footnote omitted).
Keeping this in mind, I turn to Dollar's FMLA claims.
Although Dollar has alleged both retaliation and interference claims under the FMLA, it is now clear, following trial, that Dollar's FMLA claims are fundamentally premised on an interference theory, and not a theory of retaliation. "Confusion often arises as to whether an employee's FMLA claim `is really about interference with his substantive rights, not discrimination or retaliation.'" Stallings, 447 F.3d at 1051 (quoting Kauffman v. Fed. Express Corp., 426 F.3d 880, 884 (7th Cir.2005)). In Stallings, the Eighth Circuit Court of Appeals determined that the plaintiff's claim was not really an interference claim, but "fundamentally a claim for retaliation and should be analyzed as such." Id. Centrally important to its decision was the fact that the plaintiff "received all of the FMLA leave he requested," and that the employer "[n]ever impeded [plaintiff's] use of FMLA leave." Id. In other words, the plaintiff exercised his rights under the FMLA by taking leave, but then was allegedly retaliated against for doing so. In this case, the opposite occurred: SMX never offered Dollar FMLA leave, and Dollar never requested or took any FMLA leave.
Under the FMLA, "[a]n employer is prohibited from interfering with, restraining, or denying an employee's exercise of or attempted exercise of any right contained in the FMLA." Stallings, 447 F.3d at 1050 (citing 29 U.S.C. § 2615(a)(1)).
Id. (citations omitted). As noted earlier, the FMLA requires that, upon completion of twelve weeks leave, the employee be restored to the same or an equivalent position, 26 U.S.C. § 2614(a). Here, Dollar alleges that SMX interfered with her right to reinstatement. In order to establish her interference claim, Dollar must prove each of the following five elements:
Beekman v. Nestle Purina Petcare Co., 635 F.Supp.2d 893, 909 (N.D.Iowa 2009)
Here, Dollar qualifies as an eligible employee since SMX employed her for over twelve months and she worked for at least 1,250 hours in that time. See 29 U.S.C. § 2611(2)(A); 29 C.F.R. § 825.110 (1995). SMX qualifies as an employer under the FMLA because it was a business that employed fifty or more employees for each working day during each of twenty or more calendar workweeks in the current or preceding calendar year. See 29 C.F.R. § 825.104 (1995).
As previously noted, the FMLA defines "serious health condition" as follows:
29 U.S.C. § 2611(11). No evidence was offered at trial that Dollar ever received inpatient care for her depression. Thus, her depression fails to satisfy the requirements of 29 U.S.C. § 2611(11)(A). As a result, whether her depression qualifies as a "serious health condition" turns on whether it constitutes "an illness, injury, impairment, or physical or mental condition that involves ... continuing treatment by a health care provider." 29 U.S.C. § 2611(11).
The United States Department of Labor's administrative regulations provide a more detailed explanation of what qualifies as a "serious health condition" involving continuing treatment under the FMLA:
29 C.F.R. § 825.114 (1995).
The Eighth Circuit Court of Appeals has applied these regulations and found that "the continuing treatment test for a serious health condition is met if the employee is incapacitated by an illness, injury, impairment, or physical or mental condition for more than three consecutive days and for which he is treated by a health care provider on two or more occasions." Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir.2005).
On June 10, 2007, Dollar went to the emergency room at Trinity Regional Medical Center and sought admission to the hospital's psychiatric ward. At the hospital, Dollar was examined, given a prescription for Ambien to help her sleep, and told to contact the mental health center the following day. On June 11th, Dollar was seen at the mental health center by Burr, a licensed mental health counselor, who diagnosed her with depression, and excused her from work for the following week. On June 19th, Dollar was treated by Dr. Berryhill, a psychiatrist. After his examination, Dr. Berryhill further excused Dollar from work until July 9th. On July 3rd, Dollar was seen by Crane, an Advanced Registered Practical Nurse, at Trinity Regional Medical Center. Crane prescribed a new medication for Dollar and gave her a medical excuse to be absent from work until July 30th. Given this evidence, I have no difficulty finding that Dollar was suffering from a "serious health condition."
Under the FMLA, employees "`have an affirmative duty to indicate both the need and the reason for the leave, and must let employers know when they anticipate returning to their position.'" Scobey, 580 F.3d at 786 (quoting Woods, 409 F.3d at 990-91) (quotation omitted). As the Eighth Circuit Court of Appeals explained in Murphy:
Murphy, 618 F.3d at 903. The court of appeals has further explained that:
Scobey, 580 F.3d at 786; see Browning v. Liberty Mut. Ins. Co., 178 F.3d 1043, 1049 (8th Cir.1999) (holding that under the FMLA, employer's duties are triggered when employee provides enough information to put employer on notice that employee may be in need of FMLA); Hammon v. DHL Airways, Inc., 165 F.3d 441, 451 (6th Cir.1999) ("[A]n employee gives his employer sufficient notice that he is requesting leave for an FMLA-qualifying condition when he gives the employer enough information for the employer to reasonably conclude that an event described in [the FMLA] has occurred."); see also 29 C.F.R. §§ 825.302(c) (1995) ("The employee need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed."); 29 C.F.R. § 825.303(b) (1995) ("An employee need not mention the FMLA by name in order to invoke its protections; the employee need only make the employer aware that leave is required for a purpose covered by the FMLA.").
Dollar provided SMX with more than adequate notice under the FMLA. At the time that Dollar gave SMX her first two medical excuses on June 26th, SMX was already aware that Dollar was taking medication for depression, knew she had taken leave because of her depression in the past, and knew that she needed more leave for further treatment of her depression. Considering the totality of the circumstances, Dollar has established that she put SMX on notice that she needed FMLA leave for treatment of her depression.
Finally, I must determine whether Dollar's requested FMLA benefits were denied or otherwise interfered with. Dollar has shown that she was entitled to a benefit — FMLA leave on July 6th — and that such benefit was denied. Instead of being offered FMLA leave, Dollar was summarily fired when she explained that her current "serious health condition" prevented her from returning to work on that day. Dollar's credible and un-rebutted testimony revealed that Nelson denied her leave that day. I find that SMX interfered with Dollar's FMLA rights by "refusing to authorize FMLA leave" on July 6th. See 29 C.F.R. § 825.220(b).
"An employer who interferes with an employee's FMLA leave `shall be liable to any eligible employee affected' for compensatory damages and `for such equitable
29 U.S.C. § 2617(a)(1). "The FMLA, however, `provides no relief unless the employee has been prejudiced by the violation,'" because "`[t]he remedy is tailored to the harm suffered.'" Rodgers, 435 F.3d at 909 (quoting Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89, 122 S.Ct. 1155, 152 L.Ed.2d 167 (2002)). Here, Dollar seeks both compensatory and punitive damages from SMX. I will consider each of these damages requests in turn.
Initially, I take up an issue left unresolved by my summary judgment order. An employee has no right to reinstatement — and, therefore, damages — if, at the end of her twelve-week period of leave, she is either unable or unwilling to perform the essential functions of her job. See 29 C.F.R. § 825.214(b); Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 332 (1st Cir.2005). Here, SMX contends that Dollar has not suffered any damages as a result of its actions, because her depression rendered her unable to ever return to her position as a driver manager with SMX. Thus, SMX argues that Dollar has suffered no loss in income or other recoverable damages under the FMLA. Dollar argues that prior to termination, she was transferred to the position of driver recruiter and that she could have performed its duties, but was not given the opportunity because of her termination.
After returning from leave under the FMLA, an employee is entitled to be restored to her former position or to an equivalent position with equivalent benefits, pay, and other terms of employment.
26 U.S.C. § 2614. Regarding an equivalent position, the applicable federal regulation provides:
29 C.F.R. § 825.215 (1995).
I find that Dollar had been reassigned to a driver recruiter position at the time of her termination. While SMX presented evidence, in the form of Nelson's testimony, that Dollar occupied the position of driver manager at the time of her termination, I reject Nelson's testimony on this point because it is clearly contradicted by other evidence in the record. Prior to her termination, on either June 13th, or June 14th, Kellett told Dollar that she was no longer going to be working in the Flatbed Division as a driver manager and that Nelson, SMX's Vice President of Human Resources and Safety, had another position in the company for her. When Dollar subsequently spoke to Nelson, on June 25th, he confirmed what Kellett had told her, that she was no longer going to be working as a driver manager. Nelson told Dollar that, after her bereavement leave, her new position would be as a driver recruiter. No evidence was produced at trial that Dollar had the option of returning to work as a driver manager after June 13th, or June 14th. At that point, the only position available to her was as a driver recruiter. Although Dollar was fired by SMX before actually working as a driver recruiter, it is uncontested that, if Dollar had been able to return to work on July 6th, as Nelson insisted, she would have held the position of driver recruiter. I find that Dollar was a driver recruiter when she was fired. This fact is significant because SMX failed to restore her to her former position as a driver recruiter, a position that she could have performed despite her depression. As a result, Dollar suffered economic losses.
Having prevailed on her FMLA interference claim, Dollar is entitled to back pay. See 29 U.S.C. § 2617(a)(1)(A)(i)(I); Franzen v. Ellis Corp., 543 F.3d 420, 426 (7th Cir.2008) ("An employee may be entitled to both back pay and front pay as a remedy for losses flowing from an employer's interference with his substantive rights under the FMLA ..."). As previously noted, under the FMLA, Dollar was entitled to a total of 12 work-weeks of leave during any 12-month period "because of a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D). However, such leave "may consist of unpaid leave." 29 U.S.C. § 2612(c). Here, SMX paid Dollar through July 18th. Absent any evidence that Dollar would have been entitled to additional paid leave, I find that, had SMX
Mitigation of damages is an affirmative defense. See Sayre v. Musicland Group, Inc., 850 F.2d 350, 353-54 (8th Cir.1988) (holding that mitigation is an affirmative defense that must be pleaded under Federal Rule of Civil Procedure 8(c) notwithstanding the fact it is not one of the listed affirmative defenses.). SMX, however, never pled failure to mitigate as an affirmative defense and did not explicitly argue that defense but merely suggested it in its cross-examination of Dollar, concerning the care she provided to her mother. Thus, SMX has waived this affirmative defense here. Even if SMX had not waived the defense, it has not met its burden of establishing a lack of diligence to mitigate by Dollar. "A defendant satisfies its burden only by establishing that there were substantially equivalent positions available and that the plaintiff did not use reasonable care and diligence in seeking such positions." Killian v. Yorozu Automotive Tenn., Inc., 454 F.3d 549, 556-57 (6th Cir.2006). "`A claimant is only required to make reasonable efforts to mitigate damages, and is not held to the highest standards of diligence.'" Id. at 557 (quoting Rasimas v. Mich. Dep't of Mental Health, 714 F.2d 614, 623 (6th Cir.1983)). SMX produced no evidence at trial that there were jobs available which Dollar could have discovered and for which she was qualified. To the contrary, having used reasonable diligence in her job search, I find that Dollar made a reasonable effort to mitigate her damages. Dollar, therefore, is entitled to back pay for the period of August 2, 2007, through April 13, 2011. I also find that Dollar is entitled to recover damages she sustained because of the termination of her health insurance benefits. See Sherman v. AI/FOCS, Inc., 113 F.Supp.2d 65, 76 (D.Mass.2000). The next step is to calculate Dollar's back pay for this period.
At trial, Dollar put on evidence of her losses through economist, Dr. John P. Mattila, a retired professor of economics with over thirty years' experience. He based his calculations on Dollar's salary at the time of her termination, $650 per week, and assumed that SMX made the national average company contributions for employee health care for its share of Dollar's health insurance benefits. To calculate Dollar's lost wages for a given year, Dr. Mattila took the value of Dollar's projected SMX earnings for that year, and subtracted Dollar's actual income for that year. In order to calculate Dollar's lost SMX health insurance contributions, Dr. Mattila added the projected costs of SMX's health insurance contributions for Dollar for the period of August 2, 2007, through March 31, 2011.
SMX offered no evidence contradicting Dr. Mattila's back pay calculations, and I find no reason to question his calculations as to Dollar's lost back pay and benefits. Indeed, I find his calculations to be prudent and quite conservative. For example, he did not use "the total offset method."
(4) Lost back (6) Total lost back
pay (column 2 (5) Lost SMX pay and benefits
(3) Post-SMX minus column health insurance (column 4 added
(1) Year (2) SMX pay income 3) contribution to column 5)
2007 31,268 17,942 13,326 1,522 14,848
2008 32,206 3,396 28,810 3,678 32,488
2009 32,689 21,344 11,345 3,733 15,078
2010 33,702 23,316 10,386 3,849 14,235
2011 9,710 6,706 3,004 1,108 4,106
Total 66,871 13,890 80,793
Based on the evidence presented at trial, I find that Dollar is entitled to $66,887 in back pay for this period. This sum reflects the amount of wages Dollar would have earned from her employment at SMX during this period minus the wages she has earned during the same time. I further find that Dollar is entitled to $13,900 for her lost health insurance contributions for this period. Therefore, Dollar is entitled to a total of $80,793 for back pay and loss of health insurance contributions.
An FMLA plaintiff may also be entitled to front pay. See 29 U.S.C. § 2617(a)(1)(B); McBurney v. Stew Hansen's Dodge City, Inc., 398 F.3d 998, 1001 n. 2 (8th Cir.2005); see also Franzen, 543 F.3d at 426; Arban v. West Pub. Corp., 345 F.3d 390, 405 (6th Cir.2003); Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 964 (10th Cir.2002); Nichols v. Ashland Hosp. Corp., 251 F.3d 496, 503-504 (4th Cir.2001); Churchill v. Star Enters., 183 F.3d 184, 193 (3d Cir.1999). While back pay compensates a plaintiff for lost wages and benefits before trial, front pay is intended to compensate her for losses after trial. Smith, 298 F.3d at 964. Reinstatement is generally preferable to an award of front pay, but front pay can be awarded where reinstatement is not feasible. See McBurney, 398 F.3d at 1001 n. 2; see also Downey v. Strain, 510 F.3d 534, 544 (5th Cir.2007); E.E.O.C. v. E.I. Du Pont de Nemours & Co., 480 F.3d 724, 732 (5th Cir.2007).
In Ogden v. Wax Works, Inc., 29 F.Supp.2d 1003, 1008-15 (N.D.Iowa 1998), aff'd, 214 F.3d 999 (8th Cir.2000), I comprehensively examined reinstatement and front pay as prospective equitable relief remedies under Title VII, as well as examining the factors to be considered in ordering reinstatement or in awarding front pay. Id. Title VII, like the FMLA, provides for back pay and front pay or reinstatement. See 42 U.S.C. §§ 2000e et seq. Although Ogden specifically addressed front pay damages in a Title VII action, because there is no significant difference between front pay claims under the FMLA and Title VII, its reasoning logically extends to Dollar's FMLA claims. I, therefore, will not expound upon those remedies and factors extensively. Rather, I will address the remedies and apply the factors that I explained in Ogden here.
At trial, even though Dollar plead reinstatement in her complaint, she did not request or present any evidence on reinstatement. Instead, she presented front pay evidence through economist Dr. Mattila. Before considering Dollar's request for front pay, I need to determine if the "preferred" remedy of reinstatement is either feasible or appropriate. See Williams. v. Valentec Kisco, Inc., 964 F.2d 723, 730 (8th Cir.1992) (remanding issue of front pay and reminding magistrate judge that front pay should not be awarded "unless reinstatement is impossible or impracticable....") (quoting Wildman v. Lerner Stores Corp., 771 F.2d 605, 616 (1st Cir.1985)); see Downey, 510 F.3d at 544; E.I. Du Pont de Nemours & Co., 480 F.3d at 732; Sellers v. Mineta, 358 F.3d 1058, 1067 (8th Cir.2004); Salitros v. Chrysler Corp., 306 F.3d 562, 572 (8th Cir.2002) (citing Kucia v. Southeast Ark. Cmty. Action Corp., 284 F.3d 944, 948-49 (8th Cir.2002)). This question is made more difficult, or perhaps easier, because no party requested, or put on any evidence of, reinstatement. Nor was reinstatement included in the final pretrial order. See In re Net-Velazquez, 625 F.3d 34, 40 (1st Cir.2010) (noting that claims or defenses omitted from final pretrial order "are waived, whether or not properly raised in the pleadings."); Pierce County Hotel Employees v. Elks Lodge, 827 F.2d 1324, 1329 (9th Cir.1987) ("Issues not preserved in the pretrial order are eliminated from the action."). I conclude that both parties have abandoned any claim for reinstatement. Alternatively, I find reinstatement is not a viable option. In Ogden, I identified the following factors as potentially useful in determining whether reinstatement is appropriate:
The first factor, SMX's continuation in business, weighs only slightly in favor of reinstatement. However, I give this factor less weight because SMX has been sold to Western Express and it reduced its Fort Dodge workforce by approximately 70 percent since Dollar worked there. The second factor, the availability of a comparable position, weighs slightly in favor of reinstatement since SMX still maintains five or six driver recruiters at its Fort Dodge facility.
The third factor, the displacement of innocent employees, weighs strongly against reinstatement because there is no evidence that there are currently any openings for driver recruiters at SMX's Fort Dodge facility. My ordering Dollar's reinstatement would displace an innocent employee currently occupying a driver recruiter position. The fourth factor, whether the parties agree that reinstatement is a viable remedy, likewise weighs against reinstatement. See Ray, 51 F.3d at 1254; Roush, 10 F.3d at 398; Best v. Shell Oil Co., 4 F.Supp.2d 770, 777 (N.D.Ill.1998) (turning directly to the issue of front pay after acknowledging the parties' agreement that reinstatement was not appropriate). Generally, because the parties are in the best position to gauge the feasibility or practicality of reinstatement, courts defer to a mutual belief regarding the feasibility of reinstatement. Here no such agreement exists, and neither party has asserted reinstatement as a viable remedy.
The fifth factor concerns the hostility caused by the underlying events as well as the attendant litigation. See Cowan, 140 F.3d at 1160; Ray, 51 F.3d at 1254; Roush, 10 F.3d at 398; Standley, 5 F.3d at 322; McKnight, 973 F.2d at 1370-71; Lewis, 953 F.2d at 1280; Duke, 928 F.2d at 1423. Again, no evidence was presented on this issue. The underlying events and this litigation have resulted in some degree of hostility between the parties. Accordingly, this factor weighs slightly against reinstatement.
The sixth factor is whether Dollar's reinstatement would arouse hostility in the workplace. See, e.g., Cowan, 140 F.3d at 1160. This factor cautions against reinstatement. Given the substantially reduced workforce at SMX's Fort Dodge facility and the small number of remaining employees, Dollar's court ordered reinstatement, resulting in the laying-off of a current worker, would engender co-worker hostility towards her.
The seventh and eighth factors, plaintiff's acquisition of similar work and change in plaintiff's career goals, both weigh against reinstatement. Dollar has not acquired similar work. Instead, she is now employed as hotel front desk clerk and night auditor. See Roush, 10 F.3d at 398; Henry v. Lennox Indus., Inc., 768 F.2d 746, 753 (6th Cir.1985). Likewise, I find that there has been a change in Dollar's career goals since her termination. After leaving SMX, Dollar has worked exclusively in the hotel industry. I find that, absent SMX's interference with Dollar's right to FMLA leave, she would have remained a SMX employee and would not have sought work in another career field. I base this conclusion on Dollar's testimony, coupled with the fact that she continuously worked for SMX for nearly nine years when first employed there and over one year during her second stint. Thus, this factor, too, weighs against reinstatement because SMX's conduct directly caused Dollar's shift in her career goals.
The final factor, Dollar's ability to return to work for SMX, see Newhouse v. McCormick & Co., Inc., 110 F.3d 635, 641 (8th Cir.1997); Lewis, 953 F.2d at 1280, is neutral as no evidence was presented on it.
The Eighth Circuit Court of Appeals has not provided factors to be considered in making a front pay determination under the FMLA. As a result, as with my analysis regarding reinstatement, I will consider factors traditionally approved by other courts in a front pay determination and which I enumerated in Ogden:
Ogden, 29 F.Supp.2d at 1015. I will consider each of these factors seriatim.
The first factor is plaintiff's age. See Barbour, 48 F.3d at 1280. Dollar was 48 years old at the time of trial. In United Paperworkers Int'l Union, AFL-CIO, Local 274 v. Champion Int'l Corp., 81 F.3d 798, 805 (8th Cir.1996), the plaintiff was awarded front pay for twenty-four years, a time period which was intended to follow the plaintiff until he reached retirement age. The Court of Appeals for the Eighth Circuit did not rule directly on the issue, because it reversed the district court's denial of the defendant's motion for new trial, but it strongly indicated it would not approve of such a lengthy front pay award because the duration of the award was improperly speculative. Id. The court explained that "[a]n award of front pay until retirement ignores the plaintiff's duty to mitigate damages and the district court's corresponding obligation to estimate the financial impact of future mitigation. Instead of warranting a lifetime of front pay,
As in United Paperworkers, Dollar is relatively young in terms of her work life. I find that Dollar's age is more pertinent to the duration of an award of front pay than it is to whether such an award is warranted. Dollar's age does not weigh against an award of front pay but rather counsels against an unduly lengthy award.
The second factor is Dollar's length of employment. Dollar was employed by SMX for approximately nine years during her first stint of employment and over one year during her second stint. Dollar's lengthy employment history with SMX weighs in favor of a front pay award. See Standley, 5 F.3d at 322.
I consider together the third factor, the likelihood that Dollar would have remained in her position, and the sixth factor, plaintiff's status as an at-will employee. While recognizing that Dollar was an at-will-employee, I find that, absent the FMLA violation, Dollar likely would have remained in her position at SMX until retirement. Although this factor is subject to some speculation, see Barbour, 48 F.3d at 1280; Standley, 5 F.3d at 322, the level of speculation is minimal and subject only to the general uncertainties of life. Nothing in the record suggests that Dollar would have left her employment with SMX. There is no evidence to suggest that SMX was dissatisfied with Dollar's actual performance. It is undisputed that Dollar and SMX considered her position working with truck drivers to be her "niche." These factors weigh in favor of an award of front pay. See Barbour, 48 F.3d at 1280; Schwartz, 45 F.3d at 1023.
The fourth factor is the length of time necessary to secure comparable employment. Dollar is currently employed as a hotel front desk clerk and night auditor. Given her relatively high salary at SMX, her level of education, and lack of a specialized skill, I am persuaded that Dollar will probably never gain comparable employment or be able to find a job that paid as well as her SMX position. This conclusion is bolstered by the fact that it took Dollar over one year to find even part-time employment as a hotel front desk clerk. The unavailability of comparable work supports an award of front pay. See Paolella, 158 F.3d at 194-95 n. 13; Kelley, 140 F.3d at 355 n. 12; HBE Corp., 135 F.3d at 555; Downes, 41 F.3d at 1141; Roush, 10 F.3d at 399; Standley, 5 F.3d at 322.
I find that the fifth factor, Dollar's life and work expectancy, see Paolella, 158 F.3d at 194-95 n. 13, are neutral considerations. Dollar is currently 48 years old. Dr. Matilla testified that Dollar had a life expectancy of 82 years.
I, likewise, find the seventh factor, the length of time other employees typically hold the position Dollar lost, see Barbour, 48 F.3d at 1280, to be neutral. No evidence was presented at trial regarding SMX driver recruiters' typical length of employment and I am unwilling to speculate on it. I consider this factor to be a neutral consideration and give it no weight.
The eighth factor is Dollar's ability to return to full-time work. Dollar has returned to work full-time as a hotel front desk clerk and night auditor, but at a twenty-five percent reduction in pay and without any benefits. This factor weighs in favor of front pay. Similarly, the ninth factor, Dollar's ability to return to work for SMX, weighs slightly in favor of an award of front pay. Dollar's mental health condition would not preclude her from returning
The tenth factor is a plaintiff's effort to mitigate damages. In FMLA cases, as in other employment discrimination cases, a plaintiff has a duty to reasonably mitigate damages. See Killian v. Yorozu Automotive Tenn., Inc., 454 F.3d 549, 556-57 (6th Cir.2006); Arban v. West Publ'g Corp., 345 F.3d 390, 406 (6th Cir. 2003); Viereck v. City of Gloucester City, 961 F.Supp. 703, 709 (D.N.J.1997). "The burden of proving that the employee did not make reasonable efforts is on the defendant." Excel Corp. v. Bosley, 165 F.3d 635, 639 (8th Cir.1999); Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1045 (5th Cir. 1998); Booker v. Taylor Milk Co., 64 F.3d 860, 864 (3d Cir.1995). "In carrying such [a] burden ... the defendant must show more than that there were steps towards finding comparable employment other than those [the claimant] took; it must `show that the course of conduct plaintiff actually followed was so deficient as to constitute an unreasonable failure to seek employment.'" Reilly v. Cisneros, 835 F.Supp. 96, 99 (W.D.N.Y.1993), aff'd, 44 F.3d 140 (2d Cir.1995) (quoting E.E.O.C. v. Kallir, Philips, Ross, Inc., 420 F.Supp. 919, 925 (S.D.N.Y.1976), aff'd, 559 F.2d 1203 (2d Cir.1977)).
The standard required of a plaintiff to show mitigation is less demanding. As the Eighth Circuit Court of Appeals has observed:
Brooks v. Woodline Motor Freight, Inc., 852 F.2d 1061, 1065 (8th Cir.1988). "[A] plaintiff may satisfy the `reasonable diligence' requirement by demonstrating a continuing commitment to be a member of the work force and by remaining ready, willing, and available to accept employment." Booker v. Taylor Milk Co., Inc., 64 F.3d 860, 865 (3d Cir.1995) (citing Hutchison v. Amateur Elec. Supply, Inc., 42 F.3d 1037, 1044 (7th Cir.1994); Ford v. Nicks, 866 F.2d 865, 873 (6th Cir.1989)). "In general, a plaintiff fails to mitigate adequately and therefore is [not] entitled to ... front pay `to the extent he [or she] fails to remain in the labor market, fails to accept substantially similar employment, fails diligently to search for alternative work, or voluntarily quits alternative employment without good reason.'" Reilly, 835 F.Supp. at 99 (quoting N.L.R.B. v. Madison Courier, Inc., 472 F.2d 1307, 1317 (D.C.Cir.1972)).
When a plaintiff rejects an employment offer, the employer must prove that the offered position was substantially similar, showing that the position affords "virtually identical promotional opportunities, compensation, job responsibilities, working conditions and status as the former position." Reilly, 835 F.Supp. at 100; accord Sellers v. Delgado College, 902 F.2d 1189, 1193 (5th Cir.1990) ("Substantially equivalent employment is that employment which affords virtually identical promotional opportunities, compensation, job responsibilities,
SMX has not met its burden that Dollar failed to mitigate her damages. Indeed, SMX never explicitly argued that Dollar failed to mitigate her damages. SMX presented no evidence that there was comparable employment available in Fort Dodge when Dollar accepted her present position. Nor did SMX show that Dollar did not make an "honest, good faith effort" to minimize her damages by obtaining full-time employment. See Brooks v. Woodline Motor Freight, Inc., 852 F.2d 1061, 1065 (8th Cir.1988). To the contrary, Dollar immediately sought employment as soon as she was cleared to return to work. While she chose to enter a new career field, it was only after a fifteen-month job search. This factor weighs in favor of front pay.
The eleventh and final factor is the amount of any liquidated damages. At least three circuit courts of appeals, the First, Fifth, and the Seventh, have explicitly required a court to consider a liquidated damage award in determining the issue of front pay. See Palasota v. Haggar Clothing Co., 499 F.3d 474, 490 (5th Cir.2007) (noting in ADEA case that "[w]e have held that `a substantial liquidated damage award may indicate that an additional award of front pay is inappropriate or excessive.'") (quoting Walther v. Lone Star Gas Co., 952 F.2d 119, 127 (5th Cir. 1992)); Price v. Marshall Erdman & Assocs., Inc., 966 F.2d 320, 326 (7th Cir.1992) (observing in ADEA case that the presence of liquidated damages "should play only a very small role in that determination"); Wildman v. Lerner Stores Corp., 771 F.2d 605, 616 (1st Cir.1985) (noting in ADEA case that a court contemplating a front pay award "should consider the circumstances of the case, including the availability of liquidated damages."). The Eighth Circuit Court of Appeals, however, has never adopted the reasoning in these decisions. Moreover, the Eighth Circuit would be unlikely to give much, if any, weight to this factor. See Newhouse, 110 F.3d at 643 (declining to require district court to consider this factor and observing in an ADEA case that "liquidated damages are punitive in nature under the ADEA... [whereas] [f]ront pay ... is equitable relief ... and the resulting award of liquidated damages simply does not affect the... court's determination of appropriate equitable relief."). Thus, the amount of any liquidated damages awarded is not considered on the question of front pay. "`[T]he purpose for the award of liquidated damages is the reality that the retention of a workman's pay may well result in damages too obscure and difficult of proof for estimate other than by liquidated damages.'" Jordan v. United States Postal Serv., 379 F.3d 1196, 1202 (10th Cir. 2004) (quoting Renfro v. City of Emporia, 948 F.2d 1529 (10th Cir.1991)). The purpose of front pay is also to make the plaintiff whole. See Christensen v. Titan Dist., Inc., 481 F.3d 1085, 1098 (8th Cir. 2007); Cowan, 140 F.3d at 1160; Standley, 5 F.3d at 322. Consequently, these remedies are designed to achieve very different purposes in this quest. Thus, the amount of liquidated damages awarded is a neutral consideration to be given no weight. Cf. Newhouse, 110 F.3d at 643 (declaring in ADEA case that the amount of liquidated damages awarded "does not affect the ... court's determination of appropriate equitable relief.").
Based on the trial evidence, I have a firm conviction that reinstatement is not appropriate and front pay is warranted.
The first step in calculating Dollar's front pay award is to determine its
Based on the evidence, a ten-year front pay award is appropriate. It is neither unduly speculative or excessive. The Eighth Circuit Court of Appeals and other federal courts of appeals have affirmed front pay awards of ten years or more. See Hukkanen v. Int'l Union of Operating Eng'rs, Hoisting & Portable Local No. 101, 3 F.3d 281, 286 (8th Cir.1993) (holding that a ten year front pay award did not constitute an abuse of discretion); see also Donlin v. Philips Lighting North Am. Corp., 581 F.3d 73, 88 (3rd Cir.2009) (holding that district court did not abuse its discretion in awarding plaintiff front pay for ten years); Meacham v. Knolls Atomic Power Lab., 381 F.3d 56, 79 (2d Cir.2004) (affirming front pay awards of nine to twelve and one-half years), vacated on other grounds sub nom. KAPL, Inc. v. Meacham, 544 U.S. 957, 125 S.Ct. 1731, 161 L.Ed.2d 596 (2005); Gotthardt v. National R.R. Passenger Corp., 191 F.3d 1148 (9th Cir.1999) (affirming an eleven year front pay award); Pierce v. Atchison, Topeka & Santa Fe Ry. Co., 65 F.3d 562, 574 (7th Cir.1995) (holding that ten-year front pay award did not constitute an abuse of discretion). Dollar's future at SMX as a driver recruiter looked promising and she was only 44 years old when fired. There is no reason to believe that, but for her wrongful firing, she would not still be employed at SMX. This conclusion is supported by Dollar having worked successfully at SMX for almost nine years during her first stint of employment there. It is also supported by Dollar's positive performance reviews. While SMX has reduced the number of employees at its Fort Dodge facility since Dollar's firing, it has not eliminated any driver recruiter positions.
Dollar's present position pays substantially less than she was making at SMX, and does not have the health, dental, and vision benefits she received at SMX. Taking into account Dollar's current age (48) and her educational and vocational background, for the foreseeable future, Dollar will continue to occupy a lower paying job, compared to her former SMX position. Nothing suggests that Dollar will be able to find comparable employment in the trucking industry in Fort Dodge for the remainder of her working life. The serious lack of comparable jobs in the Fort Dodge area is best illustrated by Dollar's lengthy job search resulting in her finding only a part time position in another industry, at substantially reduced pay. Given the dearth of comparable jobs, even ten years is insufficient to close the gap between her current pay and her SMX salary. Thus, while ten years' front pay is appropriate, striking the proper balance between the need to make Dollar "whole" and the need to avoid unduly speculative front pay awards, it is, in reality, unlikely to make her whole. It is a conservative award.
The next step is to calculate Dollar's estimated yearly income from SMX for this ten year period less her mitigation income. At trial, Dollar offered evidence of her front pay damages through economist Dr. Mattila. See Plaintiff's Ex. 17, Revised Earnings Tables. He based his calculations on Dollar's salary at the time of her termination, $650 per week and assumed a four percent growth rate in Dollar's wages per year. He also assumed that Dollar would continue in the same earning range as her current job with the same assumed growth rate. Dr. Mattila also assumed that SMX made the 2010 national company average contribution,
To calculate the present value of Dollar's projected SMX earnings for a given year, Dr. Mattila reduced Dollar's projected income for that year to present value and then multiplied that figure by Dollar's probability of survival. Similarly, to achieve the present value of Dollar's projected future earnings in her current job for a given year, Dr. Mattila again reduced Dollar's projected income for that year to present value and then multiplied that figure by Dollar's probability of survival. To calculate Dollar's lost future wages for any given year, Dr. Mattila took the present value of Dollar's projected SMX earnings for that year, and subtracted the present value of Dollar's projected future earnings in her current job for that year. In order to calculate the present value of Dollar's projected future lost SMX health insurance benefits, Dr. Mattila reduced the value of Dollar's projected health insurance benefits for that year to present value and then multiplied that figure by Dollar's probability of survival.
SMX presented no evidence contradicting Dr. Mattila's analysis, methodology, or calculations for projected loss of income and benefits, and I find no reason to question his calculations. Dr. Mattila's calculations are reasonable and based on sound economic principles. I adopt his calculations. Therefore, a front pay award is appropriate for a period ending April 13, 2021, based on Dollar's regular pay at SMX reduced for the probability of survival and adjusted for net present value less her current pay as a hotel clerk reduced for the probability of survival and adjusted for net present value. Added to this figure is Dollar's lost health care contributions reduced for the probability of survival and adjusted for net present value. The lost wages portion of the front pay award is calculated as follows:
(7) Desk
clerk pay
(4) SMX pay reduced for
reduced for Prob. Prob. of (8) Future
(2) SMX of survival survival lost pay
pay in (column 2 (5) Desk clerk (column 5 (column 4
present (3) Prob. of multiplied by pay in present (6) Prob. of times minus
(1) Year value survival column 3) value survival column 6) column 7)
2011 24,824 0.9974 24,759 17,174 0.9974 17,129 7,630
2012 34,708 0.9947 34,523 24,012 0.9947 23,884 10,639
2013 34,098 0.9917 33,816 23,590 0.9917 23,395 10,421
2014 33,499 0.9885 33,116 23,176 0.9885 22,910 10,206
2015 32,911 0.9851 32,421 22,769 0.9851 22,430 9,991
2016 32,333 0.9814 31,732 22,369 0.9814 21,953 9,779
2017 31,765 0.9774 31,048 21,976 0.9774 21,480 9,568
2018 31,207 0.9731 30,369 21,590 0.9731 21,010 9,359
2019 30,658 0.9685 29,694 21,210 0.9685 20,543 9,151
2020 30,120 0.9636 29,023 20,838 0.9636 20,079 8,944
2021 8,255 0.9582 7,910 5,711 0.9582 5,472 2,464
Total 98,152
(2) SMX health insurance (4) Future lost health insurance
contribution reduced to (3) Probability of benefits (column 2 multiplied by
(1) Year present value survival column 3)
2011 2,834 0.9974 2,827
2012 3,964 0.9947 3,943
2013 3,894 0.9917 3,862
2014 3,826 0.9885 3,782
2015 3,759 0.9851 3,703
2016 3,693 0.9814 3,624
2017 3,628 0.9774 3,546
2018 3,564 0.9731 3,468
2019 3,501 0.9685 3,391
2020 3,440 0.9636 3,315
2021 952 0.9582 913
Total 36,374
Combining the amounts of these two tables, $98,152 plus $36,374, results in a total front pay award of $134,526.
Under the FMLA, liquidated damages tied to the amount of damages found in § 2617(a)(1)(A)(i)(I) or (II) are available. A plaintiff may be entitled to "liquidated damages" equal to the sum of "any wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation," § 2617(a)(1)(A)(i)(I). When a FMLA violation results in damages, "[l]iquidated damages are awarded presumptively to [the] employee ... unless the employer demonstrates that its violation was in good faith and that it had a reasonable basis for believing that its conduct was not in violation of the FMLA." Cooper v. Fulton County, Ga., 458 F.3d 1282, 1287 (11th Cir.2006); see also Traxler v. Multnomah Cnty., 596 F.3d 1007 (9th Cir.2010) (noting that a FMLA's "liquidated damages" provision subjects an employer to liquidated damages "unless the employer can prove that its employment action was taken in `good faith' and that it had `reasonable grounds for believing that [its action] was not a violation'") (alteration in original) (quoting § 2617(a)(1)(A)(iii)). SMX's FMLA violation was not in good faith. Nelson failed to consider the FMLA when he fired Dollar. He was willfully indifferent to it. More importantly, SMX lacked any reasonable grounds to believe that its actions complied with the FMLA.
In Traxler v. Multnomah County, 596 F.3d 1007 (9th Cir.2010), the Ninth Circuit Court of Appeals concluded that front pay under the FMLA is not a type of damage that falls under § 2617(a)(1)(A)(i)(I) or (II). Rather, the court found that an award of front pay is an "equitable remedy" available under § 2617(a)(1)(B). Id. at 1011-14; see McBurney, 398 F.3d at 1001 n. 2 (recognizing the existence of equitable remedies
Dollar also seeks punitive damages from SMX. In passing the Civil Rights Act of 1991, Congress provided for compensatory and punitive damages in both Title VII cases and American with Disabilities Act cases. See 42 U.S.C. § 1981a. Two years later, Congress did not provide for punitive damages when it enacted the FMLA. See 29 U.S.C. § 2617. In Nevada Dep't of Human Res. v. Hibbs, 538 U.S. 721, 735, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003), the United States Supreme Court noted that the remedial provisions of the FMLA are narrow, explaining: "We also find significant the many other limitations that Congress placed on the scope of this measure.... [T]he cause of action under the FMLA is a restricted one: The damages recoverable are strictly defined and measured by actual monetary losses...." Id. at 738-40, 123 S.Ct. 1972. Although in Hibbs, the Court did not specifically address the availability of punitive damages under the FMLA, a plethora of federal courts have concluded that the FMLA's remedies do not include punitive damages. See Brown v. Nutrition Mgmt. Servs. Co., 370 Fed.Appx. 267, 270 (3d Cir.2010) (upholding order for new trial because the jury instructions may have misled the jury into believing that punitive damages were recoverable under the FMLA); Farrell v. Tri-Country Metro. Transp. Dist. of Or., 530 F.3d 1023, 1025 (9th Cir.2008) ("It is well-settled that the FMLA, by its terms, `only provides for compensatory damages and not punitive damages.'") (quoting Liu v. Amway Corp., 347 F.3d 1125, 1133 n. 6 (9th Cir.2003));
Dollar has also requested interest in her complaint. Section 2617 provides that when an employer violates the FMLA, such employer shall be liable to the employee for "the interest on the amount described in clause (i) calculated at the prevailing rate." 29 U.S.C. § 2617(a)(1)(A)(ii). Clause (i) equates to my back pay award of $80,793. Section 2617's language indicates that an award of interest is mandatory. Id. § 2617 ("Any employer who violates section 2615 of this title shall be liable to any eligible employee affected ....") (emphasis added). The difficulty in determining the appropriate interest rate stems from § 2617's failure to indicate what rate of interest should be considered the "prevailing rate."
Generally, the decision of which rate of interest to apply for prejudgment interest is a "`[m]atter[ ] confided to the district court's broad discretion.'" Endico Potatoes, Inc. v. CIT Group/Factoring, Inc., 67 F.3d 1063, 1071 (2d Cir. 1995) (quoting Commercial Union Assurance Co. v. Milken, 17 F.3d 608, 613-14 (2d Cir.1994)). The award of prejudgment interest under Title VII is thoroughly examined in Madison v. IBP, Inc., 149 F.Supp.2d 730, 782 (S.D.Iowa 1999). Consistent with the applicable guidelines discussed in Madison, prejudgment interest on Dollar's back pay is awarded at the statutory rate set out in Iowa Code § 668.13(3), with interest accruing from the date of the commencement of this case to the date of the entry of judgment. No prejudgment interest will be awarded on the liquidated damages and front pay portion of the judgment. Post-judgment interest is governed by 28 U.S.C. § 1961. Interest shall accrue on the entire award,
SMX handled Dollar's need for leave for her depression poorly, firing her without considering whether her leave was protected by the FMLA. Consequently, the company's actions violated the FMLA. This violation, in turn, entitles Dollar to remedies under the act. Having considered those remedies, I conclude that an award of $80,793 for back pay and loss of health insurance contributions is warranted. In addition, Dollar is entitled to an award of liquidated damages in the sum of $80,793, an amount equaling Dollar's back pay and loss of health insurance contributions. Dollar, however, is not entitled to punitive damages because the FMLA doe not provide for them. Finally, I conclude that an award of prospective equitable relief is warranted. The "preferred" remedy of reinstatement is not appropriate here. Instead, I find that front pay is the appropriate "make whole" remedy. I further find that a duration of ten years of front pay and benefits, totaling $134,526, strikes the proper balance between holding SMX responsible for placing Dollar in the position in which she finds herself and avoiding an unduly speculative front pay award. To recap, Dollar is entitled to the following damages:
Back pay and loss of health care $ 80,793 contributions Liquidated damages $ 80,793 Front pay $134,526 Total damages $296,112
THEREFORE, I order judgment be entered in favor of Dollar and against SMX in the sum of $80,793, plus interest from the date of the filing of this complaint to the date of the entry of the judgment at the Iowa judgment rate. Judgment shall also enter in favor of Dollar and against SMX for $215,319 in front pay and liquidated damages without prejudgment interest. Interest on the total judgment, $296,112, shall accrue from and after the date of the entry of the judgment at the federal judgment rate.
Plaintiff's counsel is reminded that Local Rule 54.1(a) instructs that a motion for an award of attorney fees must be filed within the time called for in Federal Rule of Civil Procedure 54(d)(2)(B), see N.D. Ia. L.R. 54.1(a), which requires that such motions be filed "no later than 14 days after the entry of Judgment." FED.R.CIV.P. 54(d)(2)(B).
