SUPPLEMENTAL MEMORANDUM OPINION AND ORDER
PETER J. MESSITTE, District Judge.
At the conclusion of the bench trial in this employment discrimination and retaliation case, which addressed the issues of Plaintiff Jon Everhart's entitlement to back pay, pension benefits, health benefits, and other relief, the Court submitted a draft back pay calculation and two draft Orders to counsel for comment.1 The two draft Orders addressed reinstatement of Plaintiff Everhart's pension and health benefits and the expungement of certain negative employment records of Defendant BOE and related entities as to Plaintiff Everhart. The Court directed the parties to respond to the draft back pay calculation and the two proposed draft Orders by Monday, March 7, 2016. Plaintiff Everhart submitted no response by the Court-imposed deadline,2 but the Defendant Prince George's County Board of Education (BOE) did. ECF No. 228. The Court agrees with some, but not all, of Defendant BOE's comments. The Court explains.
I. Back Pay Calculation
With regard to the Court's draft back pay calculation (attached as Exhibit I to this Supplemental Memorandum Opinion and Order), the Court agrees with Defendant HOE that it is appropriate to deduct the entire pension benefits Plaintiff Everhart has received from the State of Maryland, since he would not have received any pension payments at all had he been employed by Defendant BOE continuously from August 2010 through the 2015 to 2016 school year. See Fariss v. Lynchburg, 769 F.2d 958, 966-67 (4th Cir. 1985). That said, however, Defendant BOE must take steps to assure that Plaintiff Everhart will receive credit toward his pension for the total period of time he would have worked in the State of Maryland had he been working continuously over the period in question. In other words, upon reinstatement into the Maryland State Retirement and Pension System, Plaintiff Everhart's level of pension benefits must take into account the years he served in the Baltimore City Public Schools and the years he would have served in the Prince George's County Public Schools (i.e., from the start of his employment with Defendant BOE in 2003 through the 2015 to 2016 school year).
As a result, the Court agrees with Defendant BOE that it would be appropriate to deduct from the back pay calculation the amount in contributions Plaintiff Everhart would have been required to make into the Maryland State Retirement and Pension System during the period of unemployment in question. Again, however, the Court is permitting this deduction only so long as Defendant BOE can take steps to assure that Plaintiff Everhart will be paid pension benefits, effective at the conclusion of the 2015 to 2016 school year, at the same level he would have received had he not been terminated. Defendant BOE shall be responsible for any contributions it should have made had Plaintiff Everhart not been terminated.
With regard to prejudgment interest, the Court rejects the request of Defendant BOE that the annual rate should be at 2%. Defendant BOE cites the low rate of inflation during the period of Plaintiff Everhart's unemployment. But strictly speaking the rate of inflation is not the same as the rate of interest, even if the two are related. Moreover, interest paid at less than 6% could very well have been invested at a rate higher than that. Six percent is the legal rate of prejudgment interest in the State of Maryland. Md. Const. art. Ill, § 57. This rate was allirmed by the Fourth Circuit as an appropriate measure for back pay prejudgment interest in a lawsuit involving Title VII claims for retaliation and gender discrimination. Hylind v. Xerox Corp., 481 F. App'x 819 (4th Cir. 2012). The Court therefore finds, in its discretion, that prejudgment interest at a rate of 6% compounded annually is appropriate in the present case.
In light of the foregoing rulings, the Court attaches a revised back pay calculation as Exhibit 2 hereto. Based on that revised calculation, the Court will be entering final judgment in favor of Plaintiff Everhart and against Defendant BOE in the amount of the jury's award of $350,000.00 in compensatory damages, plus the Court's award of back pay in the amount of $198,170.00, see Exhibit 2, a total of $548.170.00.
II. Proposed Order on Pension and Health Benefits
With regard to the Court's proposed separate Order addressing reinstatement of Plaintiff Everhart's health benefits (attached as Exhibit 3 to the Supplemental Memorandum Opinion and Order), the Court agrees with Defendant BOE that the preferable solution is either (1) for Defendant BOE to actually provide Plaintiff Everhart retiree health benefits at the level that would have been available to him had he been in continuous employment for the 2010-2011 school year through the 2015-2016 school year, or (2) for Plaintiff Everhart to arrange for the purchase of comparable health insurance in the open market and then charge Defendant BOE for the cost of same. The Court therefore agrees to remove the clause in the proposed Order which would have allowed Plaintiff Everhart to pursue individual medical procedures and sue Defendant BOE for the cost of any procedure that, in whole or in part, would have been covered by health benefits Plaintiff Everhart would have received had he not been terminated. A final Order reflecting this modification will be entered by the Court.
III. Proposed Order on Expungement of Certain Records
With regard to the Court's proposed Order regarding the expungement of certain negative employment records for Plaintiff Everhart (attached as Exhibit 4 to this Supplemental Memorandum Opinion and Order), the Court agrees with Defendant BOE that there should be a carve-out for the Prince George's County General Counsel's office; provided, however, that a copy of the Court's Order directing removal of the negative information by Defendant BOE and related entities shall be placed in the General Counsel's file on this case. The Court also agrees with Defendant BOE to stay implementation of the expungement order pending the outcome of an appeal. A final Order reflecting these modifications will be entered by the Court.
The Court disagrees with Defendant BOE that its counsel should not be obligated at least (1) to make a good faith effort to communicate this Court's expungement Order to all appropriate agencies that maintain information relative to Plaintiff Everhart's tenure with Defendant BOE, and (2) to report to the Court in writing that counsel has fulfilled this obligation in timely fashion. This provision is not intended to make counsel an auditor or guarantor of the removal of the negative information; it simply requires counsel to make a good faith effort to communicate to all relevant agencies that they must comply with the Court's directive.
IV. Attorney's Fees
While a single final order of judgment in favor of Plaintiff Everhart and against Defendant BOE will be entered for compensatory damages, for back pay, and for the separate equitable relief granted Plaintiff Everhart by separate Orders, there remains the matter of Plaintiff Everhart's attorney's fees.3
Plaintiff Everhart's counsel is directed to file a motion for any further attorney's fees no later than thirty (30) days from the date of this Supplemcntal Memorandum Opinion and Order. Accordingly, the Court will reserve final judgment on the issue of Mr. Chapman's total award of attorney's fees until appropriate pleadings are filed by Mr. Chapman.
Everhart v. Prince George's County Board of Education, et al., Civ. A. No. PJM 11-1196 DRAFT 2/26/2016
EXHIBIT 1
Back Pay Calculation without Contribution for Future Pension
2010-2011 2011-2012 2012-2013 2013-2014 2014-2015 2015-2016
PGCBOE Projected Gross
Salary 64,879 64,879 66,791 68,127 72,158 74,323
Minus Gross Income from
Substitute Teaching 36,395 19,238 18,619 19,092 18,628 18,510
Minus Income from
Maryland Pension for PG
County Work 0 6,058 6,250 5,996 6,622 6,789
Net Claimed from
PGCBOE 28,484 39,583 41,922 43,039 46,908 55,807
PLUS Prejudgment
Interest (6% compounded
annually up to 2016) 38,118 49,973 49,930 48,359 49,722 55,807
Subtotal
for School
School Year Year
2010-2011 38,118
2011-2012 49,973
2012-2013 49,930
2013-2014 48,359
2014-2015 49,722
2015-2016 55,807
Total $291,909
Everhart v. Prince George's County Board of Education, et al., Civ. A. No. PJM 11-1196 DRAFT 2/26/2016
Back Pay Calculation without Contribution for Future Pension
2010-2011 2011-2012 2012-2013 2013-2014 2014-2015 2015-2016
PGCBOE Projected Gross
Salary 64,879 64,879 66,791 68,127 72,158 74,323
Minus What Everhart
Would Have Contributed
Toward Pension 3,244 7,785 9,217 9,585 9,819 4,993
Minus Gross Income from
substitute Teaching 36,395 19,238 18,619 19,092 18,628 18,510
Minus Income from
Maryland Pension for PG
County Work 0 6,058 6,250 5,996 6,622 6,789
Net Claimed from
PGCBOE 25,240 31,798 32,705 33,454 37,089 44,031
PLUS Prejudgment
Interest (6% compounded
annually up to 2016) 33,777 40,144 38,952 37,589 39,314 44,031
Subtotal
for School
School Year Year
2010-2011 33,777
2011-2012 40,144
2012-2013 38,952
2013-2014 37,589
2014-2015 39,314
2015-2016 44,031
Total $233,807
Everhart v. Prince George's County Board of Education, et al., Civ. A. No. PJM 11-1196 DRAFT 2/26/2016
PGCBOE Pension Benefits Received Calculation
2010 2011 2012 2013 2014 2015
Total Pension Benefits
Received (including Ohio
and Maryland) 12990 19216 19600 19092 20344 20678
Minus Approximate
Amount Received in Ohio
Pension 12990 7100 7100 7100 7100 7100
Approximate Amount
Received in Total Maryland
Pension 0 12116 12500 11992 13244 13578
Approximate Amount
Received for Work with PG
County (50% of Pension) 0 6058 6250 5996 6622 6789
Everhart v. Prince George's County Board of Education, et al., Civ. A. No. PJM 11-1196 REVISED
Back Pay Calculation without Contribution for Future Pension
2010-2011 2011-2012 2012-2013 2013-2014 2014-2015 2015-2016
PGCBOE Projected Gross
Salary 64,879 64,879 66,791 68,127 72,158 74,323
Minus What Everhart
Would Have Contributed
Toward Pension 3,244 7,785 9,217 9,585 9,819 4,993
Minus Gross Income from
substitute Teaching 36,395 19,238 18,619 19,092 18,628 18,510
Minus Income from
Maryland Pension 0 12,116 12,500 11,992 13,244 13,578
Net Claimed from
PGCBOE 25,240 25,270 26,455 27,458 30,467 37,242
PLUS Prejudgment
Interest (6% compounded
annually up to 2016) 33,777 32,496 31,508 30,852 32,295 37,242
Subtotal
for School Total = $ 198, 170
School Year Year
2010-2011 33,777
2011-2012 32,496
2012-2013 31,508
2013-2014 30,852
2014-2015 32,295
2015-2016 37,242
Everhart v. Prince George's County Board of Education, et al., Civ. A. No. PJM 11-1196 DRAFT 2/26/2016
PGCBOE Pension Benefits Received Calculation
2010 2011 2012 2013 2014 2015
Totall'ension Benefits
Received (including Ohio
and Maryland) 12990 19216 19600 19092 20344 20678
Minus Approximate
Amount Received in Ohio
Pension 12990 7100 7100 7100 7100 7100
Approximate Amount
Received in Total Maryland
Pension 0 12116 12500 11992 13244 13578
EXHIBIT 3
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
JON EVERHART,
Plaintiff
v. Civil Action No. PJM 11-1196
BOARD OF EDUCATION OF
PRINCE GEORGE'S COUNTY, et al.,
Defendant
ORDER
For the reasons stated on the record, Plaintiff Jon Everhart is AWARDED the following relief, in addition to the monetary awards which the Jury and Court have awarded him pursuant to other Orders in the case:
1) Defendant Board of Education of Prince George's County (BOE) shall, at its own expense, undertake to reinstate Plaintiff Jon Everhart in the health insurance program for which he would have been eligible had he remained in the continuous employ of Prince George's County Public Schools (PGCPS) from August 17, 2010 to the present.
2) To the extent that BOE, for whatever reason, does not accomplish this obligation within the next sixty (60) days, Plaintiff Everhart shall be entitled to obtain private health insurance comparable to what he would ordinarily have received from BOE and may charge the expense of said insurance to Defendant BOE, for as many years as Plaintiff Everhart chooses to maintain said insurance.
3) Alternatively, should Plaintiff Everhart either choose not to or not be able to secure health insurance comparable to what he would have had if he remained continuously in the employ of BOE, he may charge to BOE the difference between whatever it may cost him to receive a particular medical benefit (e.g. surgery) that would have been covered by health insurance had he stayed in the employ of Defendant, so long as such benefit would have otherwise been covered, in whole or part, under the health insurance he would have had had he maintained continuous employment with Defendant BOE.
4) Defendant BOE shall also, at its own expense, undertake to reinstate Plaintiff Everhart into the Pension Program of the Maryland State Retirement and Pension system, so that he shall receive a pension (montWy or otherwise) at the same level he would have received had he remained in the continuous employ of Defendant BOE after August 17, 2010.
5) Paragraph 4 assumes that both Plaintiff Everhart and Defendant BOE would have made appropriate contributions to the Pension Program of the Maryland State Retirement and Pension System on a regular periodic basis or a continuous basis between September 2010 and August 2016.
6) Accordingly, there may be payments due from Plaintiff Everhart to the Maryland State Retirement and Pension System, representing payments that would have been charged against him for each of the six (6) years beginning August 17, 2010 when he would have been in the employ of BOE in order to bring him to the level he would have enjoyed had he not been inappropriately terminated on August 17, 2010.
7) Defendant BOE shall be responsible for making its own contribution to the State Retirement and Pension system on behalf of Plaintiff Everhart.
8) Should Defendant BOE, for any reason, take the position that it is unable to reintegrate Plaintiff Everhart into the Maryland State Retirement and Pension System, Plaintiff Everhart shall have the option of purchasing or establishing which would be the cost of purchasing a pension benefit equivalent to what his pension would have been had he remained continuously in the employ of Defendant BOE and he may then charge Defendant BOE with the cost or prospective cost of said pension.
9) With respect to the future pension benefits, Defendant BOE shall confirm in writing to the Court (with copies to Plaintiff's counsel), within sixty (60) days, that it has complied with the terms of this Order.
/s/
________________________
PETER J. MESSITTE
March ___, 2016 UNITED STATES DISTRICT JUDGE
EXHIBIT 4
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
JON EVERHART,
Plaintiff
v. Civil Action No. PJM 11-1196
BOARD OF EDUCATION OF
PRINCE GEORGE'S COUNTY, et al.,
Defendant
ORDER
Consistent with the verdict of the Jury in this case finding that Defendant Board of Education of Prince George's County (BOE) illegally retaliated against Plaintiff Jon Everhart for filing a civil rights claim, which resulted in a jury award of $350,000 in compensatory damages in favor of Plaintiff Everhart and against Defendant BOE, the Court, in addition to the monetary award the Court has made herein,
ORDERS Defendant BOE to do the following within the next thirty (30) days:
1) BOE shall expunge all negative (but not positive) documents and statements, e.g. evaluations, reports, decisions and the like relative to Plaintiff Everhart, contained in any personnel file, any labor relations file (sealed or otherwise) or any file of the General Counsel of Defendant BOE, and in the files of any other entities associated with Defendant BOE.
2) A copy of this Order shall be sent by Defendant BOE to the Maryland State Department of Education which is directed to accomplish comparable expungement of any negative materials pertaining to Plaintiff Everhart's records, as set forth in Paragraph 1.
3) Defendant BOE shall restore Plaintiff Everhart to a First Class teaching certificate effective June 29, 2009 and, as indicated, shall expunge, among all the negative information recited in Paragraph 1, any reference to the fact that Plaintiff Everhart ever had a Second Class teaching certificate, except as to the initial Second Class certificate that might otherwise have been granted to all new teachers in the PGCPS system.
4) The foregoing actions shall be accomplished with in the next thirty (30) days.
5) Within thirty (30) days, Counsel for the BOE shall confirm to the Court in writing (copy to Plaintiff's counsel) that this Order of the Court has been implemented.
/s/
________________________
PETER J. MESSITTE
March ___, 2016 UNITED STATES DISTRICT JUDGE
