Fresquez v. BNSF Railway Co.

Filing 201

ORDER Granting in part remainder of 166 Plaintiff's Motion for Back Pay and Directing Entry of Judgment. Entered by Judge William J. Martinez on 12/17/2019. (afran)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 17-cv-0844-WJM-SKC
BRANDON FRESQUEZ,
Plaintiff,
v.
BNSF RAILWAY CO.,
Defendant.

ORDER GRANTING IN PART REMAINDER OF PLAINTIFF’S MOTION FOR
BACK PAY AND DIRECTING ENTRY OFJUDGMENT

Plaintiff Brandon Fresquez sued Defendant BNSF Railway Co. (“BNSF”), his
former employer, for retaliating against him for engaging in protected activity, in violation
of the Federal Railroad Safety Act, 49 U.S.C. § 20109 (“FRSA”). The case proceeded
to a 6-day jury trial before Senior U.S. District Court Judge Wiley Y. Daniel. On
February 19, 2019, the jury returned a verdict in favor of Fresquez, finding that BNSF
retaliated against Fresquez in violation of the FRSA, and awarded Fresquez $800,000
in compensatory damages and $250,000 in punitive damages. (ECF No. 152.)
Judge Daniel reserved questions of back pay and front pay for judicial
determination. (ECF No. 159 at 131–32.) The parties briefed the issues of back pay
and front pay, and Judge Daniel set a hearing on the matter. (ECF Nos. 155 & 166.)
Sadly, prior to the hearing, Judge Daniel passed away. On May 16, 2019, the matter

was drawn to the undersigned, and the Court held a hearing on the issues on
September 6, 2019. (ECF Nos. 171 & 192.)
After the hearing, the Court entered an Order resolving certain disputes between
the parties regarding calculation of back pay and front pay, taking under advisement the
precise dollar amount of back pay and front pay to be awarded, and directing the parties
to submit simultaneous, supplemental briefs on the issue of the dollar amount to be
awarded consistent with the Court’s rulings in the Order. (ECF No. 193 at 34.)
Among the disputes resolved, the Court found that Fresquez is entitled to ten
years of front pay from the date of the jury verdict, or until February 19, 2029. (Id. at
17.) Implicit in this finding was that back pay should run from the date Fresquez was
fired to the date of the jury verdict. The Court also instructed the parties to not reduce
Fresquez’s back pay by the amount Fresquez received in unemployment benefits (id. at
25); to omit any health insurance payments from the back pay calculation for failure to
prove the amount spent due to lack of health insurance (id. at 29); to calculate
Fresquez’s estimated but-for wages1 using the method of expert witness Jeffrey Opp
(id. at 26); to calculate the relative loss in health benefits using a multiplier (id. at 30);
and include prejudgment interest using a fixed rate of 5.54%, compounded monthly and
according to a formula approved by the Tenth Circuit (id. at 33). The parties were also
instructed to calculate prejudgment interest as of December 17, 18, and 19. (Id. at 34.)

1

The Court will refer to the amounts Fresquez would have earned absent the unlawful
termination as “but-for” wages, and the amounts Fresquez instead earned between the trial and
today’s date, or is projected to earn until 2029, as his “non-railroad” wages.

2

I. SUPPLEMENTAL BRIEFING ON AMOUNT DUE TO FRESQUEZ
BNSF timely filed its supplemental brief on November 25, 2019. (ECF No. 194.)
Due to a scheduling error at Fresquez’s counsel’s firm, Fresquez filed his supplemental
brief the following day, along with an unopposed motion for leave to belatedly file the
supplement as well as another supplement brief with interest calculations the following
week. (ECF Nos. 196 & 198.) The Court granted the Motion for Leave. (ECF No. 197.)
Because both sets of calculations deviated from the Court’s Order directing
supplemental briefing, the Court requested the native file used by each expert to
calculate back pay, front pay, and prejudgment interest.
A.

Fresquez Calculations
Contrary to the Court’s Order that front pay be calculated for ten years from the

jury verdict on February 19, 2019, Fresquez calculated front pay for ten year after the
date of September 6, 2019 hearing. (Compare ECF No. 193 at 17 (“Fresquez is entitled
to ten years of front pay from the date of the jury verdict”) with ECF No. 198-2 at 2 (front
pay calculated from September 7, 2019 to September 7, 2029) and id. at 3 (“Date of
Report/Trial: 09/06/19”).) It also appears that Fresquez calculated back pay from the
date of his termination until the date of the hearing. (ECF No. 198-2 at 2; see id. at 3
(“Date of Report/Trial: 09/06/19”).) Plaintiff’s expert calculations for back pay and front
pay are therefore inconsistent with the Court’s Order, and of little use to the Court. This
error influenced the Court’s decision to request the native files with calculations from the
experts.
The Court also ordered the parties to “calculate prejudgment interest using a
fixed interest rate of 5.54% with such interest compounded monthly” and to “use the

3

formula approved by the Tenth Circuit in Reed v. Mineta, 438 F.3d 1063, 1067 n.4 (10th
Cir. 2006).” (ECF No. 193 at 33.) The formula used in Reed takes the future value of
each payment owed to a plaintiff from the date the each payment was due, subtracts
the original value of each payment, thus leaving only the interest component, and then
adds the interest components of each payment. 438 F.3d at 1067 n.4. In other words,
it calculates the amount of interest due on the amount owed over time, and takes into
account that, absent the discriminatory action, the plaintiff would have earned money
over time. Contrary to the Court’s Order, Fresquez calculated prejudgment interest on
the entire amount of the award from May 27, 2016. (ECF No. 198-2 at 15.)
These two errors make it difficult for the Court to rely on Fresquez’s model for
calculating front pay and back pay. Even if the Court were to adjust the date ranges for
back pay and front pay in Fresquez’s model, the Court would still need to separately
calculate prejudgment interest in accordance with its ruling, rather than rely on
Fresquez’s model to calculate prejudgment interest.
B.

BNSF Calculations
Although BNSF did not present an expert at the hearing on back pay and front

pay, after the Court issued its Order, BNSF retained economist Mark Erwin to calculate
the amount of back pay, front pay, benefits, and interest to be awarded. (ECF No. 194
at 2.)
1.

Back Pay

Erwin calculated back pay from termination (May 27, 2016) to the jury verdict
(February 19, 2019) omitting any health benefits or unemployment benefits from the
calculations. (ECF No. 194-1 at 4.) Erwin also deducted “unreimbursed railroad

4

employee expenses” (essentially, union dues) from Fresquez’s but-for wages. He also
deducted income taxes on Fresquez’s but-for wages and non-railroad wages. However,
once Erwin arrived at a final recommended back pay and front pay award, he provided
an estimate of taxes on that lump sum.
2.

Front Pay

Consistent with the Court’s Order, Erwin calculated lost front pay from February
19, 2019 through February 18, 2029. (ECF No. 194-1.)
To calculate estimated future wages, Erwin began with Opp’s 2019 but-for wage
estimate and Fresquez’s actual 2019 wages for his non-railroad wages. (Id. at 6.)
Erwin then projected the but-for wages forward from 2019 using forecasted changes in
the Employment Cost Index. (Id.) For projected non-railroad wages, Erwin used the
forecasted changes in the Employment Cost Index and gradually adjusted Fresquez’s
earnings from the entry-level wage to median-occupational earnings by 2029.
Erwin calculated health benefits in the following manner: He found that in 2019,
Fresquez’s health benefits at BNSF would have been approximately $9,459, or 8.98%
of Fresquez’s but-for wages. He therefore added 8.98% to Fresquez’s but-for wages
each year. For non-railroad healthcare benefits, Erwin assumed, based on a Kaiser
Family Foundation report, that employers typically pay $5,946 in annual premiums for
employee-only coverage. This amount was equal to 11.66% of Fresquez’s 2019 postrailroad wages. Thus, Erwin added 11.66% to Fresquez’s post-railroad wages each
year.
Erwin’s calculations include three data points that BNSF did not raise in the
briefing on back pay and front pay or at the hearing: (1) unreimbursed railroad

5

employee expenses; (2) income taxes; and (3) life/employment expectancy. As with the
back pay calculations, Erwin deducted unreimbursed railroad employee expenses from
Fresquez’s projected but-for wages, and deducted income taxes from Fresquez’s butfor wages and non-railroad wages. Also as noted above, Erwin estimated the taxes due
on the lump sum, and provided an estimate to the Court of the tax liability that would
accompany the award.
Finally, Erwin adjusted but-for earnings and post-railroad earnings based on
“Plaintiff’s expected likelihood of remaining in the labor force from the date of judgment
through the end of his lost front pay period in 2029.” (ECF No. 194-1 at 10.) He
therefore concluded that, on average during the ten-year front pay period Fresquez had
9.28 expected active years in the labor force. (Id.)
In the prior Order, the Court explicitly held that on the record before it, Fresquez
would likely have remained at BNSF for an additional ten years. BNSF’s assumption of
9.28 years of labor force participation is contrary to the Court’s Order that Fresquez
should receive ten years of front pay from the date of the trial. The ten-year front pay
period is not subject to further diminution based on work-life expectancy by an expert.
C.

Court’s Approach and Calculations
At this point, the Court has two options: order supplemental briefing on the

supplemental briefing (forcing the parties to incur additional expert expenses and
billable hours), or take the parties’ experts’ reports and underlying data under
advisement and perform the calculations itself. The Court is frustrated that neither party
adhered to the Court’s rulings in the prior Order, further complicating an already
complicated matter. Specifically, Fresquez failed to make basic changes to the dates in

6

the model or to appropriately calculate interest. BNSF added certain factors not
previously raised to the Court in the briefing on back pay and front pay or at the hearing,
and seemingly did so to reduce its liability to Fresquez.
Out of this frustration with the parties inability to follow the Court’s Order, the
Court requested the expert models from the parties to make necessary adjustments.
The Court is concerned that ordering further updates to the experts’ models would only
raise additional issues, rather than resolve this litigation. At some point, litigation must
end. The Court exercises its discretion to modify the numbers presented by the parties
consistent with its prior rulings, recalculate back pay and front pay using BNSF’s model,
and, at long last, enter final judgment in favor of Fresquez.
The Court will use BNSF’s model. As discussed above, even were the Court to
adjust the dates in Fresquez’s model, there is still the significant issue of calculating
prejudgment interest, and Fresquez’s model is inadequate for that task. The Court
understands that each model makes numerous assumptions and adjustments, far more
than were explained in the parties’ briefs, that ultimately impact the final amount owed.
However, the Court must proceed in some way, and it exercises its discretion to do so
using the BNSF model.
The Court makes the following rulings regarding elements of BNSF’s model, and
adjusts the model accordingly. The Court makes these adjustments in its discretion and
to the best of its ability to arrive at an amount that fairly represents the amount of back
pay, front pay, and prejudgment interest to which Fresquez is entitled.

7

1.

But-For and Post-Railroad Gross Annual Front Pay

BNSF objected to Opp’s calculation of Fresquez’s estimated gross annual but-for
railroad earnings. Opp used a method that took into account how much employees are
paid under union contracts, the amount of work available, and how much Fresquez
elected to work on a historical basis to arrive at wage estimates for 2015 to 2019. The
Court found that “Opp’s method to calculate Fresquez’s front pay ha[d] a reasonable
factual basis.” (ECF No. 193 at 26.) Both parties appropriately used these numbers for
Fresquez’s 2015 to 2019 gross annual but-for earnings. (ECF No. 194-1 at 3; ECF No.
198-2 at 11.)
The Court’s prior order did not directly address how but-for and post-railroad
gross annual front pay should be estimated from 2019 to 2029. Opp simply assumed a
4% growth rate in annual gross wages to account for inflation and any raises Fresquez
may have received. He applied this growth rate to Fresquez’s but-for wages and postrailroad wages.
Erwin assumed that Fresquez’s but-for wages would increase by the amount of
annual inflation. For Frequez’s post-railroad wages, however, Erwin factored in annual
inflation as well as an assumption that Fresquez’s wages would rise with his increasing
experience in the building inspector industry. While the Court did not explicitly approve
this formula for projecting future non-railroad wages, the Court notes that the resulting
annual non-railroad wages are less than those projected by Opp, thereby ultimately
benefitting Fresquez. (Compare ECF No. 198-2 at 12 (“alternate wages”) with ECF No.
194-1 at 5 (“Post-RR Earnings Charles Total”).)

8

With respect to but-for gross wages, the Court finds that Erwin’s approach
underestimates Fresquez’s potential for raises, and Opp’s approach overestimates the
same. In order to avoid additional delay, the Court will exercise its discretion and use
the average of these two but-for gross wage estimates for its calculations. See Part
I.C.5, Table 1, below. For the post-railroad gross wage estimates, the Court will use
Erwin’s numbers that, as discussed above, are lower than Opp’s projections and
thereby ultimately benefit Fresquez.
2.

Unreimbursable Railroad Employee Expenses

The Court will not allow BNSF to subtract unreimbursable railroad employee
expenses from but-for wages. BNSF did not challenge Opp’s failure to deduct these
expenses from Fresquez’s but-for wages in its briefing or at the hearing. The Court
finds that such an approach is an unnecessary nickel-and-diming of Fresquez’s
damages at the eleventh hour. BNSF had the opportunity to object to Opp’s report and
the calculations involved, but elected not to do so. The Court will therefore omit this
reduction in Fresquez’s but-for earnings calculations. See Part I.C.5, Table 2B
(“employee expenses” column).
3.

Labor Force Participation

As discussed above, Erwin adjusted both but-for earnings and post-railroad
earnings based on his estimate that Fresquez would remain in the labor force for 9.28
years (on average over a ten-year period). Also as discussed above, the Court’s prior
ruling that Plaintiff would remain at BNSF for ten years was intended to account for
future uncertainty about Fresquez’s employment at BNSF. The Court therefore

9

modifies Fresquez’s probability of remaining in the workforce to one hundred percent
until 2029. It does so for both Fresquez’s but-for and post-railroad employment.
To achieve that result, the Court edited BNSF’s underlying spreadsheet that
estimated “labor force probability”—thus updating the linked cells in the but-for earnings
and post-railroad earnings sheets—in the event that other figures in BNSF’s model were
also keyed off of the data. Specifically, the Court modified the LFP sheet, cells H9:H19
to be 100%, thereby changing the “Probability of LFP” on the but-for table and postrailroad table to “1.00.” See Part I.C.5, Tables 2B and 3B, below.
4.

Income Taxes

Erwin deducted income taxes from Fresquez’s earnings estimates, and added an
approximation of taxes on the lump sum award. Opp did not deduct income taxes from
estimated earnings. The Court notes that, unmodified, BNSF’s after-tax model plus
lump sum income tax is nearly equivalent to the before-tax model with no lump sum
income tax. (ECF No. 194-1 at 34 (total loss award plus income taxes on award is
$583,598); see id. at 70 (“before-tax model: $582,967).)
According to an Internal Revenue Service (“IRS”) Memorandum submitted by
BNSF, the IRS generally considers back pay and front pay taxable income. (ECF No.
194-1 at 45.) The Court finds it reasonable to consider the taxes that Fresquez would
have paid, either by not deducting income taxes from estimated earnings or by
deducting income tax from expected but-for and post-railroad earnings and adding a
lump sum amount for taxes to the entire award. The Court notes that if it were to rely on
the BNSF model with post-tax earnings estimates and not add a lump sum for taxes,
Fresquez would, in essence, be taxed twice.

10

The Court adopts BNSF’s approach of deducting income taxes on Fresquez’s
annual earnings, and adding a lump sum to account for taxes on the award. This
approach is reasonable, and has the added benefit of minimizing the number of
modifications to BNSF’s model.
5.

Tables

To calculate the award, the Court made the modifications to the BNSF model
discussed above. The cells highlighted in yellow in Tables 2A, 2B, 3A, and 3B show
where the Court modified the data. After making these alterations, the Court ran the
“Backsolver” macro imbedded on the “Inputs” page to, presumably, update the entire
model consistent with the Court’s alterations. (See ECF No. 194-1 at 70.) The Court
also made sure that taxes were calculated on the new amount of the award. The final
result is that Fresquez is entitled to $696,173, which includes back pay, front pay, prejudgment interest, and estimated income taxes. The tables below show BNSF’s
calculations (Tables 2A, 3A, 4A & 5A), the Court’s modifications to BNSF’s model and
resulting impacts (Tables 1, 2B, 3B, 4B & 5B), and the amount due to Fresquez.
Table 1: Average of Estimated But-For Gross Annual Wages
Year

Fresquez Estimate
(ECF No. 198-1 at 11)

BNSF Estimate
(ECF No. 194-1 at 4)

Average

2019

$108,122.01

$108,122.01

$108,122.01

2020

$112,446.89

$109,294.41

$110,870.65

2021

$116,944.76

$110,338.63

$113,641.69

2022

$121,622.55

$111,392.82

$116,507.69

2023

$126,487.46

$112,548.17

$119,517.82

2024

$131,546.95

$113,605.53

$122,576.24

2025

$136,808.83

$114,650.85

$125,729.84

2026

$142,281.19

$115,705.79

$128,993.49

2027

$147,972.43

$116,657.29

$132,314.86

2028

$153,891.33

$117,616.61

$135,753.97

2029

$160,046.98

$118,595.69

$139,321.33

11

Table 2A: But-For Earnings Unmodified
Fresquez v. BNSF

Brandon K. Fresquez' But-for Railroad Earnings & Benefits - If Judgement is on December 17, 2019 and Lost Post-retirement Benefits Considered
Date of Termination:
Date of Verdict:
Date of Judgment:

Year

Age

Year
Frac

Real
ECI

05/27/16
02/19/19
12/17/19

1

Gross
RR Pay
(Annual)

Gross
RR Pay
(Period)

0
Cost
Sharing
(Period)

Creditable
Earnings

Employee
Expenses

6.20%
Tier I
Taxes

4.90%
Tier II
Taxes

1.45%
MC
Taxes

But-for
Earnings
(before-tax)

Termination
2016
31
2017
32
2018
33
2019
34

0.60
1.00
1.00
0.13

$107,306
$110,169
$106,524
$108,122

$64,207
$110,169
$106,524
$14,301

($1,571)
($2,747)
($2,747)
($229)

$62,636
$107,422
$103,777
$14,072

($705)
($1,512)
($1,526)
($205)

($3,883)
($6,660)
($6,434)
($872)

($2,704)
($4,631)
($4,675)
($690)

($908)
($1,558)
($1,505)
($204)

$54,435
$93,062
$89,638
$12,100

Verdict
2019

34

0.83 137.50

$108,122

$89,613

($2,289)

$87,324

($1,265)

($5,414)

($4,147)

($1,266)

$75,232

Judgment
2019
2020
2021
2022
2023
2024
2025
2026
2027
2028
2029

34
35
36
37
38
39
40
41
42
43
44

0.04
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
0.13

$108,122
$109,294
$110,339
$111,393
$112,548
$113,606
$114,651
$115,706
$116,657
$117,617
$118,596

$4,208
$109,294
$110,339
$111,393
$112,548
$113,606
$114,651
$115,706
$116,657
$117,617
$15,921

($229)
($2,776)
($2,803)
($2,830)
($2,859)
($2,886)
($2,913)
($2,939)
($2,964)
($2,988)
($404)

$3,980
$106,518
$107,536
$108,563
$109,689
$110,720
$111,738
$112,766
$113,694
$114,629
$15,517

($59)
($1,545)
($1,560)
($1,575)
($1,591)
($1,606)
($1,621)
($1,636)
($1,649)
($1,663)
($225)

($247)
($6,604)
($6,667)
($6,731)
($6,801)
($6,865)
($6,928)
($6,992)
($7,049)
($7,107)
($962)

$0
($4,874)
($4,922)
($5,320)
($5,375)
($5,425)
($5,475)
($5,526)
($5,571)
($5,617)
($760)

($58)
($1,545)
($1,559)
($1,574)
($1,590)
($1,605)
($1,620)
($1,635)
($1,649)
($1,662)
($225)

$3,616
$91,950
$92,827
$93,363
$94,332
$95,218
$96,094
$96,978
$97,776
$98,580
$13,344

In 2019:
$9,459
8.98%
RR Health
Insurance
(single)

Post-verdict:

137.50
138.99
140.32
141.66
143.13
144.47
145.80
147.14
148.35
149.57
150.82

Expected
But-for
times
Earnings
Probability & Benefits
of LFP
(before-tax)

0

Income
Taxes

Expected
But-for
Earnings
& Benefits
(after-tax)

$54,435
$93,062
$89,638
$12,100

($18,879)
($24,640)
($20,565)
($2,800)

$35,556
$68,422
$69,073
$9,300

$7,839

1.00

$83,071

($17,258)

$65,813

$357
$9,562
$9,653
$9,745
$9,846
$9,939
$10,030
$10,123
$10,206
$10,290
$1,393

0.98
0.96
0.94
0.93
0.92
0.92
0.91
0.91
0.90
0.90
0.89

$3,913
$97,189
$96,340
$96,067
$96,266
$96,594
$96,955
$97,317
$97,576
$97,704
$13,123

($775)
($19,938)
($19,709)
($19,641)
($19,700)
($19,800)
($19,908)
($22,695)
($22,776)
($22,816)
($3,065)

$3,138
$77,250
$76,631
$76,427
$76,565
$76,795
$77,047
$74,621
$74,800
$74,888
$10,058

Expected Years Active in Labor Force, Post-verdict:

10.00 years, per order

1.00
1.00
1.00
1.00

9.28

Table 2B: But-For Earnings Modified
Fresquez v. BNSF

Brandon K. Fresquez' But-for Railroad Earnings & Benefits - If Judgement is on December 17, 2019 and Lost Post-retirement Benefits Considered
Date of Termination:
Date of Verdict:
Date of Judgment:

Year

Age

Year
Frac

Real
ECI

05/27/16
02/19/19
12/17/19

1

Gross
RR Pay
(Annual)

Gross
RR Pay
(Period)

0
Cost
Sharing
(Period)

Creditable
Earnings

Employee
Expenses

6.20%
Tier I
Taxes

4.90%
Tier II
Taxes

1.45%
MC
Taxes

But-for
Earnings
(before-tax)

Termination
2016
31
2017
32
2018
33
2019
34

0.60
1.00
1.00
0.13

$107,306
$110,169
$106,524
$108,122

$64,207
$110,169
$106,524
$14,301

($1,571)
($2,747)
($2,747)
($229)

$62,636
$107,422
$103,777
$14,072

($3,883)
($6,660)
($6,434)
($872)

($2,704)
($4,631)
($4,675)
($690)

($908)
($1,558)
($1,505)
($204)

$55,140
$94,574
$91,164
$12,306

Verdict
2019

34

0.83 137.50

$108,122

$89,613

($2,289)

$87,324

($5,414)

($4,147)

($1,266)

$76,497

Judgment
2019
2020
2021
2022
2023
2024
2025
2026
2027
2028
2029

34
35
36
37
38
39
40
41
42
43
44

0.04
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
0.13

$108,122.01
$110,870.65
$113,641.69
$116,507.69
$119,517.82
$122,576.24
$125,729.84
$128,993.49
$132,314.86
$135,753.97
$139,321.33

$4,208
$110,871
$113,642
$116,508
$119,518
$122,576
$125,730
$128,993
$132,315
$135,754
$18,703

($229)
($2,776)
($2,803)
($2,830)
($2,859)
($2,886)
($2,913)
($2,939)
($2,964)
($2,988)
($404)

$3,980
$108,094
$110,839
$113,678
$116,659
$119,690
$122,817
$126,054
$129,351
$132,766
$18,299

($247)
($6,702)
($6,872)
($7,048)
($7,233)
($7,421)
($7,615)
($7,815)
($8,020)
($8,231)
($1,135)

$0
($4,874)
($4,922)
($5,570)
($5,716)
($5,865)
($6,018)
($6,177)
($6,338)
($6,506)
($897)

($58)
($1,567)
($1,607)
($1,648)
($1,692)
($1,736)
($1,781)
($1,828)
($1,876)
($1,925)
($265)

$3,675
$94,951
$97,438
$99,411
$102,018
$104,669
$107,404
$110,234
$113,118
$116,104
$16,002

In 2019:
$9,459
8.98%
RR Health
Insurance
(single)

Post-verdict:

137.50
138.99
140.32
141.66
143.13
144.47
145.80
147.14
148.35
149.57
150.82

Expected
But-for
times
Earnings
Probability & Benefits
of LFP
(before-tax)

0

Income
Taxes

Expected
But-for
Earnings
& Benefits
(after-tax)

12

$55,140
$94,574
$91,164
$12,306

($18,879)
($24,640)
($20,565)
($2,801)

$36,262
$69,934
$70,599
$9,505

$7,839

1.00

$84,336

($17,262)

$67,073

$357
$9,703
$9,950
$10,204
$10,472
$10,744
$11,025
$11,315
$11,611
$11,918
$1,643

1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00

$4,032
$104,655
$107,387
$109,616
$112,490
$115,413
$118,429
$121,550
$124,729
$128,022
$17,645

($787)
($21,629)
($22,415)
($23,228)
($24,081)
($24,949)
($25,844)
($29,993)
($31,069)
($32,183)
($4,476)

$3,245
$83,026
$84,973
$86,388
$88,409
$90,464
$92,584
$91,557
$93,660
$95,839
$13,169

Expected Years Active in Labor Force, Post-verdict:

10.00 years, per order

1.00
1.00
1.00
1.00

10.00

Table 3A: Post-Railroad Earnings Unmodified
Fresquez v. BNSF

Brandon K. Fresquez' Post-Railroad Earnings & Benefits - If Judgement is on December 17, 2019 and Lost Post-retirement Benefits Considered
Date of Termination:
Date of Verdict:
Date of Judgment:

Year

Age

Year
Frac

Termination
2016
31
2017
32
2018
33
2019
34

34

Judgment
2019
2020
2021
2022
2023
2024
2025
2026
2027
2028
2029

34
35
36
37
38
39
40
41
42
43
44

Entry
Town of
to Med Castle Rock

0.60
1.00
1.00
0.13

Verdict
2019

Real
ECI

05/27/16
02/19/19
12/17/19

Post-verdict:

$16,701
$1,920

1

1

0

Post-RR Earnings
Charles
Abbott

SAFEbuilt

Total

6.20%
SS
Taxes

1.45%
MC
Taxes

Post-RR
Earnings
(before-tax)

In 2019:
$5,946
11.66%
Health
Insurance
(single)

$5,923
$6,847

$16,701
$20,918
$49,308
$6,847

($1,035)
($1,297)
($3,057)
($424)

($242)
($303)
($715)
($99)

$15,423
$19,318
$45,535
$6,323

0.83 137.50 137.50

$42,197

$42,197

($2,616)

($612)

$38,969

$4,920

0.04
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
0.13

$1,956
$53,479
$55,768
$58,154
$60,857
$63,417
$66,030
$68,750
$71,280
$73,902
$10,291

$1,956
$53,479
$55,768
$58,154
$60,857
$63,417
$66,030
$68,750
$71,280
$73,902
$10,291

($121)
($3,316)
($3,458)
($3,606)
($3,773)
($3,932)
($4,094)
($4,263)
($4,419)
($4,582)
($638)

($28)
($775)
($809)
($843)
($882)
($920)
($957)
($997)
($1,034)
($1,072)
($149)

$1,807
$49,388
$51,501
$53,705
$56,201
$58,566
$60,979
$63,491
$65,827
$68,249
$9,503

Expected
4.83%
Post-RR
Retirement
times
Earnings
Benefits Probability & Benefits
(private ind.)
of LFP
(before-tax)

$228
$6,010
$6,068
$6,126
$6,189
$6,248
$6,305
$6,363
$6,415
$6,468
$876

137.50
138.99
140.32
141.66
143.13
144.47
145.80
147.14
148.35
149.57
150.82

Income
Taxes

Expected
Post-RR
Earnings
& Benefits
(after-tax)

137.50
144.18
150.35
156.79
164.08
170.98
178.02
185.36
192.18
199.25
206.67

10.00 years, per order

1.00
1.00
1.00
1.00

$15,423
$19,318
$45,535
$6,323

($2,498)
($1,598)
($6,014)
($907)

$12,925
$17,719
$39,522
$5,416

$2,038

1.00

$45,927

($5,587)

$40,340

$94
$2,583
$2,694
$2,809
$2,939
$3,063
$3,189
$3,321
$3,443
$3,570
$497

0.98
0.96
0.94
0.93
0.92
0.92
0.91
0.91
0.90
0.90
0.89

$2,096
$55,625
$56,818
$58,362
$60,368
$62,350
$64,384
$66,490
$68,392
$70,257
$9,685

($272)
($8,704)
($8,934)
($9,209)
($9,579)
($10,003)
($10,414)
($12,696)
($13,175)
($13,651)
($2,108)

$1,824
$46,921
$47,884
$49,153
$50,789
$52,347
$53,970
$53,793
$55,217
$56,606
$7,577

Expected Years Active in Labor Force, Post-verdict:

$18,998
$43,385

9.28

Table 3B: Post-Railroad Earnings Modified
Fresquez v. BNSF

Brandon K. Fresquez' Post-Railroad Earnings & Benefits - If Judgement is on December 17, 2019 and Lost Post-retirement Benefits Considered
Date of Termination:
Date of Verdict:
Date of Judgment:

Year

Age

Year
Frac

Termination
2016
31
2017
32
2018
33
2019
34

34

Judgment
2019
2020
2021
2022
2023
2024
2025
2026
2027
2028
2029

34
35
36
37
38
39
40
41
42
43
44

Entry
Town of
to Med Castle Rock

0.60
1.00
1.00
0.13

Verdict
2019

Real
ECI

05/27/16
02/19/19
12/17/19

Post-verdict:

$16,701
$1,920

1

1

Post-RR Earnings
Charles
SAFEbuilt
Abbott

0

Total

6.20%
SS
Taxes

1.45%
MC
Taxes

Post-RR
Earnings
(before-tax)

In 2019:
$5,946
11.66%
Health
Insurance
(single)

$5,923
$6,847

$16,701
$20,918
$49,308
$6,847

($1,035)
($1,297)
($3,057)
($424)

($242)
($303)
($715)
($99)

$15,423
$19,318
$45,535
$6,323

0.83 137.50 137.50

$42,197

$42,197

($2,616)

($612)

$38,969

$4,920

0.04
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
0.13

$1,956
$53,479
$55,768
$58,154
$60,857
$63,417
$66,030
$68,750
$71,280
$73,902
$10,291

$1,956
$53,479
$55,768
$58,154
$60,857
$63,417
$66,030
$68,750
$71,280
$73,902
$10,291

($121)
($3,316)
($3,458)
($3,606)
($3,773)
($3,932)
($4,094)
($4,263)
($4,419)
($4,582)
($638)

($28)
($775)
($809)
($843)
($882)
($920)
($957)
($997)
($1,034)
($1,072)
($149)

$1,807
$49,388
$51,501
$53,705
$56,201
$58,566
$60,979
$63,491
$65,827
$68,249
$9,503

$228
$6,010
$6,068
$6,126
$6,189
$6,248
$6,305
$6,363
$6,415
$6,468
$876

Expected
4.83%
Post-RR
Retirement
times
Earnings
Benefits Probability & Benefits
(private ind.)
of LFP
(before-tax)

137.50
138.99
140.32
141.66
143.13
144.47
145.80
147.14
148.35
149.57
150.82

137.50
144.18
150.35
156.79
164.08
170.98
178.02
185.36
192.18
199.25
206.67

$18,998
$43,385

Income
Taxes

Expected
Post-RR
Earnings
& Benefits
(after-tax)

13

$15,423
$19,318
$45,535
$6,323

($2,498)
($1,598)
($6,014)
($907)

$12,925
$17,719
$39,522
$5,416

$2,038

1.00

$45,927

($5,591)

$40,336

$94
$2,583
$2,694
$2,809
$2,939
$3,063
$3,189
$3,321
$3,443
$3,570
$497

1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00

$2,129
$57,982
$60,263
$62,640
$65,330
$67,876
$70,473
$73,175
$75,685
$78,286
$10,876

($299)
($9,903)
($10,410)
($10,865)
($11,354)
($11,877)
($12,367)
($14,982)
($15,560)
($16,164)
($2,596)

$1,830
$48,079
$49,853
$51,775
$53,976
$55,999
$58,106
$58,193
$60,125
$62,122
$8,280

Expected Years Active in Labor Force, Post-verdict:

10.00 years, per order

1.00
1.00
1.00
1.00

10.00

Table 4A: Pre-Judgment Interest Unmodified
Fresquez v. BNSF

Brandon K. Fresquez' Pre-judgment Interest
Date of Termination:
Date of Verdict:
Date of Judgement:
Prejudgement
Year

05/27/16
02/19/19
12/17/19

Period
Loss

Number of
Months

Monthly
Loss Flow

5.54%
Period
Rate

Ordinary
Annuity
Factor

Ending
Annuity
Amount

Prejudgement Beginning
Interest
Interest
(Annuity)
Accrued

Beginning
Principle

Beginning
Balance

Beginning
Balance
Factor

Ending
Balance

Prejudgment
Interest
(Beginning
balances)

Total Prejudgment
Interest

2016
2017
2018
2019

$22,631
$50,702
$29,551
$3,884

7.2
12.0
12.0
1.6

$3,152
$4,225
$2,463
$2,411

0.46%
0.46%
0.46%
0.46%

7.284
12.309
12.309
1.613

$22,956
$52,010
$30,313
$3,889

$325
$1,307
$762
$5

$0
$325
$2,937
$8,034

$0
$22,631
$73,333
$102,884

$0
$22,956
$76,271
$110,918

1.034
1.057
1.057
1.007

$0
$24,261
$80,605
$111,744

$0
$1,305
$4,334
$826

$325
$2,612
$5,096
$832

2019

$25,473

9.9

$2,566

0.46%

10.136

$26,005

$531

$8,865

$106,768

$115,634

1.047

$121,045

$5,411

$5,942

Total Pre-judgment Interest:

$14,808

Table 4B: Pre-Judgment Interest Modified
Fresquez v. BNSF

Brandon K. Fresquez' Pre-judgment Interest
Date of Termination:
Date of Verdict:
Date of Judgement:
Prejudgement
Year

Period
Loss

05/27/16
02/19/19
12/17/19

Number of
Months

Monthly
Loss Flow

5.54%
Period
Rate

Ordinary
Annuity
Factor

Ending
Annuity
Amount

Prejudgement Beginning
Interest
Interest
(Annuity)
Accrued

Beginning
Principle

Beginning
Balance

Beginning
Balance
Factor

Ending
Balance

Prejudgment
Interest
(Beginning
balances)

Total Prejudgment
Interest

2016
2017
2018
2019

$23,336
$52,214
$31,077
$4,089

7.2
12.0
12.0
1.6

$3,250
$4,351
$2,590
$2,538

0.46%
0.46%
0.46%
0.46%

7.284
12.309
12.309
1.613

$23,672
$53,561
$31,878
$4,095

$336
$1,346
$801
$6

$0
$336
$3,027
$8,294

$0
$23,336
$75,551
$106,627

$0
$23,672
$78,578
$114,922

1.034
1.057
1.057
1.007

$0
$25,017
$83,043
$115,777

$0
$1,345
$4,465
$856

$336
$2,692
$5,267
$862

2019

$26,737

9.9

$2,693

0.46%

10.136

$27,295

$558

$9,156

$110,717

$119,872

1.047

$125,482

$5,609

$6,167

Total Pre-judgment Interest:

$15,323

14

Table 5A: Summation Unmodified
Fresquez v. BNSF

Brandon K. Fresquez' Present Value Loss of Back and Front Pay
Date of Termination:
Date of Verdict:
Date of Judgement:

Year

Age

Year
Frac

05/27/16
02/19/19
12/17/19
Expected Earnings & Benefits
(net of income taxes)
But-for
Post-RR
Delta

POL

Discount
Factor

Present
Value
Loss

5.54%
Prejudgment
Interest

Termination - Loss of Back Pay Begins
2016
31
0.60
$35,556
2017
32
1.00
$68,422
2018
33
1.00
$69,073
2019
34
0.13
$9,300

$12,925
$17,719
$39,522
$5,416

$22,631
$50,702
$29,551
$3,884

100.00%
100.00%
100.00%
100.00%
100.00%
100.00%
100.00%
100.00%
Loss of Back Pay:

$22,631
$50,702
$29,551
$3,884
$106,768

$325
$2,612
$5,096
$832

Verdict - Loss of Front Pay Begins
2019
34
0.83
$65,813

$40,340

$25,473

100.00%
100.00%
Pre-judgment Interest:

$25,473

$5,942
$14,808

Judgment
2019
2020
2021
2022
2023
2024
2025
2026
2027
2028
2029

$1,824
$46,921
$47,884
$49,153
$50,789
$52,347
$53,970
$53,793
$55,217
$56,606
$7,577

$1,314
$30,329
$28,748
$27,273
$25,776
$24,448
$23,077
$20,828
$19,583
$18,282
$2,481

99.91%
99.97%
99.73%
99.49%
99.54%
99.18%
99.35%
99.09%
99.15%
99.08%
98.94%
98.86%
98.72%
98.49%
98.50%
98.14%
98.26%
97.85%
98.00%
97.66%
97.73%
97.19%
Loss of Front Pay:

$1,312
$30,094
$28,382
$26,849
$25,323
$23,914
$22,439
$20,134
$18,827
$17,497
$2,356
$242,600

Loss of Back Pay:

$106,768

34
35
36
37
38
39
40
41
42
43
44

Post-verdict:

0.04
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
0.13

$3,138
$77,250
$76,631
$76,427
$76,565
$76,795
$77,047
$74,621
$74,800
$74,888
$10,058

10.00 years, per order
plus Loss of Front Pay, Pre-judgment:

$25,473

equals Basis for Pre-judgment Interest:

$132,241

plus Pre-judgment Interest:

$14,808

equals Pre-judgment Loss:

$147,049

plus Loss of Front Pay, Post-judgment:

$217,127

equals Loss Excluding Post-Retirement Benefits:

$364,176

plus Loss of Tier I / Social Security Benefits:

$19,298

plus Loss of Tier II Benefits:

$56,871

plus Associated Income Taxes:

$442,852

plus Income Taxes on Award:

$140,700

equals Tax-adjusted Award:

15

$2,507

equals Total Loss Award:

$583,553

Table 5B: Summation Modified
Fresquez v. BNSF

Brandon K. Fresquez' Present Value Loss of Back and Front Pay
Date of Termination:
Date of Verdict:
Date of Judgement:

Year

Age

Year
Frac

05/27/16
02/19/19
12/17/19
Expected Earnings & Benefits
(net of income taxes)
But-for
Post-RR
Delta

POL

Discount
Factor

Present
Value
Loss

5.54%
Prejudgment
Interest

Termination - Loss of Back Pay Begins
2016
31
0.60
$36,262
2017
32
1.00
$69,934
2018
33
1.00
$70,599
2019
34
0.13
$9,505

$12,925
$17,719
$39,522
$5,416

$23,336
$52,214
$31,077
$4,089

100.00%
100.00%
100.00%
100.00%
100.00%
100.00%
100.00%
100.00%
Loss of Back Pay:

$23,336
$52,214
$31,077
$4,089
$110,717

$336
$2,692
$5,267
$862

Verdict - Loss of Front Pay Begins
2019
34
0.83
$67,073

$40,336

$26,737

100.00%
100.00%
Pre-judgment Interest:

$26,737

$6,167
$15,323

Judgment
2019
2020
2021
2022
2023
2024
2025
2026
2027
2028
2029

$1,830
$48,079
$49,853
$51,775
$53,976
$55,999
$58,106
$58,193
$60,125
$62,122
$8,280

$1,415
$34,947
$35,119
$34,613
$34,433
$34,465
$34,478
$33,364
$33,535
$33,717
$4,889

99.91%
99.97%
99.73%
99.49%
99.54%
99.18%
99.35%
99.09%
99.15%
99.08%
98.94%
98.86%
98.72%
98.49%
98.50%
98.14%
98.26%
97.85%
98.00%
97.66%
97.73%
97.19%
Loss of Front Pay:

$1,414
$34,676
$34,672
$34,075
$33,826
$33,713
$33,525
$32,251
$32,241
$32,270
$4,644
$334,044

Loss of Back Pay:

$110,717

34
35
36
37
38
39
40
41
42
43
44

Post-verdict:

0.04
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
0.13

$3,245
$83,026
$84,973
$86,388
$88,409
$90,464
$92,584
$91,557
$93,660
$95,839
$13,169

10.00 years, per order
plus Loss of Front Pay, Pre-judgment:

$26,737

equals Basis for Pre-judgment Interest:

$137,454

plus Pre-judgment Interest:

$15,323

equals Pre-judgment Loss:

$152,777

plus Loss of Front Pay, Post-judgment:

$307,307

equals Loss Excluding Post-Retirement Benefits:

$460,084

plus Loss of Tier I / Social Security Benefits:

$20,917

plus Loss of Tier II Benefits:

$60,726

plus Associated Income Taxes:

$550,489

plus Income Taxes on Award:

$145,684

equals Tax-adjusted Award:

16

$8,764

equals Total Loss Award:

$696,173

II. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

The portion of the Motion for Back and Front Pay (ECF No. 166) previously taken
under advisement is GRANTED IN PART and DENIED IN PART as discussed
above;

2.

The Court finds that Plaintiff Brandon Fresquez is entitled to a total tax-adjusted
award of back pay, front pay, and prejudgment interest through December 17,
2019 of $696,173;

3.

The Clerk of Court shall enter judgment in favor of Plaintiff and against
Defendant in the principal amount of $1,746,173—comprised of $696,173 for
back pay, front pay, and prejudgment interest; $800,000 in compensatory
damages; and $250,000 in punitive damages—with postjudgment interest at the
federal statutory rate;

4.

The Court will resolve the pending Motion for Fees and Costs (ECF No. 165) by
way of separate Order; and

5.

The Clerk shall terminate this case.
Dated this 17th day of December, 2019.
BY THE COURT:

_______________________
William J. Martínez
United States District Judge

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