Casias v. Raytheon Company
ORDER. Plaintiff's Opposed Motion for Equitable Damages [# 79 ], filed December 6, 2019, is denied. By Judge Robert E. Blackburn on 09/14/2020. (athom, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 17-cv-02635-REB-SKC
RAYTHEON COMPANY, RAYTHEON INFORMATION SYSTEMS COMPANY, and/or
its business division: INTELLIGENCE, INFORMATION, and SERVICES,
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S OPPOSED
MOTION FOR EQUITABLE DAMAGES
The matter before me is Plaintiff’s Opposed Motion for Equitable Damages
[#79],1 filed December 6, 2019. By this motion, plaintiff Bruce Casias seeks front pay
and associated equitable damages which come within the discretion of this court. See
Zisumbo v. Ogden Regional Medical Center, 801 F.3d 1185, 1203 (10th Cir. 2015),
cert. denied, 136 S.Ct. 1660 (2016); Denison v. Swaco Geolograph Co., 941 F.2d
1416, 1424 (10th Cir. 1991). I have jurisdiction over this matter pursuant to 28 U.S.C. §
1331 (federal question). Having considered carefully the motion, response, reply, and
supplemental briefs; the record; the apposite law; and the inherent equities, I deny the
This case was tried to a jury from November 18-21, 2019, which returned a
“[#79]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.
verdict in favor of Mr. Casias on his sole claim of retaliation under the Defense
Contractor Whistleblower Protection Act (“DCWPA”), 10 U.S.C. § 2409. At trial, Mr.
Casias claimed his quondam employer, Raytheon Company, had reassigned and
effectively demoted him in retaliation for reporting what he believed to be Raytheon’s
mishandling of certain aspects of the company’s contract with the Department of
Defense. (See Final Pretrial Order ¶ 3.b @ 2-3 [#63], filed November 7, 2019.) The
jury found in favor of Mr. Casias and awarded him $43,000 in past earnings (backpay)
and benefits and $1,000,000 in noneconomic damages. (Jury Verdict at 2 [#76], filed
November 21, 2019.) Mr. Casias now seeks front pay and related benefits, including
lost bonuses, vacation benefits, 401K contributions, and interest.
“[R]einstatement is the preferred remedy for discrimination in employment
matters[.]” Bingman v. Natkin & Co., 937 F.2d 553, 558 (10th Cir. 1991). However,
where reinstatement is not feasible due to unusual work place hostility or other
aggravating circumstances, an award of front pay may be substituted. Anderson v.
Phillips Petroleum Co., 861 F.2d 631, 638 (10th Cir. 1988), overruled on other
grounds by Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S.Ct. 1701, 123 L.Ed.2d
338 (1993). “Front pay is simply money awarded for lost compensation during the
period between judgment and reinstatement or in lieu of reinstatement.” Pollard v. E.I.
du Pont de Nemours & Co., 532 U.S. 843, 846, 121 S.Ct. 1946, 1948, 150 L.Ed.2d 62
(2001). See also Zisumbo, 801 F.3d at 1205.
Implicit in this formulation is the notion that the plaintiff is entitled to reinstatement
in the first instance. Yet a plaintiff who voluntarily resigns is not entitled to reinstatement
or its functional equivalent, front pay. See Derr v. Gulf Oil Corp., 796 F.2d 340, 342
(10th Cir. 1986). To recover front pay, therefore, a plaintiff who was not affirmatively
terminated must establish that he was constructively discharged, that is, that his
working conditions were so intolerable that a reasonable person in his position would
have felt forced to resign. See Fischer v. Forestwood Co., 525 F.3d 972, 980 (10th Cir.
2008).2 These are mutually exclusive concepts; “a plaintiff who voluntarily resigns
cannot claim that he or she was constructively discharged.” Exum v. U.S. Olympic
Committee, 389 F.3d 1130, 1135 (10th Cir. 2004).3
In his complaint, Mr. Casias asserted a claim for “constructive discharge.”
(See Complaint ¶¶ 53-58 at 10-12 [#1], filed November 3, 2017.) Former Chief Judge
Marcia S. Krieger (to whom this case was assigned originally) granted Raytheon’s
motion to dismiss that claim because constructive discharge is "a legal theory whereby
a court will view an employee's ostensibly voluntary resignation as an involuntary
termination when workplace conditions are so hostile and intolerable to that employee
Where an employee has left his employment without being terminated or constructively
discharged, his employer’s actions cannot be considered the cause of his lost future salary and benefits.
See Nance v. Maxwell Federal Credit Union (MAX), 186 F.3d 1338, 1342 (11th Cir. 1999); Marrero v.
Goya of Puerto Rico, Inc., 304 F.3d 7, 28 (1st Cir. 2002); Mitchell v. Russell Lands, Inc., 2013 WL
12246408 at *2 n.2 (M.D. Ala. July 3, 2013).
Most federal courts follow this rule. See, e.g., Lulaj v. Wackenhut Corp., 512 F.3d 760, 767
(6 Cir. 2008); Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 28 (1st Cir. 2002); Hertzberg v. SRAM
Corp., 261 F.3d 651, 659 (7th Cir. 2001), cert. denied, 122 S.Ct. 1070 (2002); Nance, 186 F.3d at 1342;
Major v. Rosenberg, 877 F.2d 694, 695 (8th Cir.1989); Satterwhite v. Smith, 744 F.2d 1380, 1381 n.1
(9th Cir. 1984); Bourque v. Powell Electrical Manufacturing Co., 617 F. 2d 61, 64-65 & n.8 (5th Cir.
1980); Brown v. D.C., 768 F.Supp.2d 94, 101-02 (D.D.C. 2011), aff'd, 493 Fed. Appx. 110 (D.C. Cir.
2012). Although several circuits recognize a very narrow exception in failure-to-promote cases, see
Hertzberg, 261 F.3d at 660 n.8 (citing Odima v. Westin Tucson Hotel, 53 F.3d 1484, 1495 (9th Cir.
1995), and Wells v. North Carolina Board of Alcoholic Control, 714 F.2d 340, 342 (4th Cir. 1983), cert.
denied, 104 S.Ct. 712 (1984)), no such claim was pursued in this case.
that he or she had no other choice but to resign. It does not constitute a standalone
claim." (Order Re: Motion for Judgment on the Pleadings at 6 [#28], filed June 1,
2018 (citing Baker v. Baxa Corp., 2011 WL 650002 at *1 (D. Colo. Feb. 11, 2011).)
Nevertheless, she did not foreclose Mr. Casias from presenting such a theory in
connection with his DCWPA retaliation claim, as to which summary judgment was
denied. Indeed, in addressing Raytheon’s motion for summary judgment, Judge Krieger
clearly believed Mr. Casias had “alleg[ed] an adverse action on a theory of constructive
discharge” which could be pursued at trial:
In light of the court's decision on the retaliation claim based
on reassignment, and because the only difference between
the reassignment or constructive discharge as the adverse
action would be for purposes of calculating damages, the
Court does not reach that question here. The issue can be
addressed in the proper context at trial.
(Opinion and Order on Motion for Summary Judgment at 5 n.2 [#46], filed March 13,
Mr. Casias, however, did not pursue a theory that Raytheon constructively
discharged him at trial. This was not mere oversight; Mr. Casias affirmatively told this
court he would not pursue any such theory of relief in connection with his DCWPA
retaliation claim. (See Plaintiff’s Memorandum on Non-Stipulated–Competing Jury
Instructions at 4 [#54], filed October 18, 2019) (objecting to Raytheon’s proposed
constructive discharge instructions on ground that “[t]his is not a constructive discharge
case. Constructive discharge was dismissed by Judge Krieger in granting Defendant’s
Fed. R. Civ. P. 12(c) Motion to Dismiss.”); Final Pretrial Order ¶ 3.b.4. at 2 (describing
adverse employment action at issue as being “reassigned/demoted”).) Given how Mr.
Casias described and delimited his DCWPA claim, I must conclude he waived any right
to claim he was constructively discharged. United States v. Olano, 507 U.S. 725, 733,
113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993) (“[W]aiver is the intentional
relinquishment or abandonment of a known right.”) (citation and internal quotation
Because Mr. Casias is thus precluded from claiming he was constructively
discharged, I must conclude that his decision to resign his position with Raytheon on
July 11, 2016, was voluntary. Indeed, after I asked the parties to provide supplemental
briefing on this issue, Mr. Casias affirmed “[t]here was no evidence that his working
conditions were so ‘intolerable’ that he could not stay employed [at Raytheon] –
substantiating a constructive discharge claim,” but rather stated he left because he had
no further employment opportunities within Raytheon. (Plaintiff’s Supplemental Brief
Substantiating Award of Front Pay at 2 [#112], filed August 31, 2020.) Because Mr.
Casias himself affirms he was not constructively discharged, he is legally precluded
from recovering front pay or any of the associated prospective benefits which the instant
motion seeks.4 Accordingly, the motion must be denied.
THEREFORE, IT IS ORDERED that Plaintiff’s Opposed Motion for Equitable
Damages [#79], filed December 6, 2019, is denied.
It is possible that the court, exercising its equitable powers, could make a factual determination
as to constructive discharge even though that issue was not presented to the jury. Cf. Ag Services of
America, Inc. v. Nielsen, 231 F.3d 726, 730 (10th Cir. 2000) (in determining equitable claims, court is
bound by jury’s determination on essential factual issues common to both legal and equitable claims);
Copar Pumice Co. v. Morris, 2009 WL 5201799 at *10 (D.N.M. Oct. 23, 2009) (“[T]he trial judge's
findings on equitable claims may not conflict with the jury's determinations.”). Mr. Casias does not request
such a determination, however, and in light of his clear waiver, I find it would be an abuse of discretion to
do so in any event.
Dated September 14, 2020, at Denver, Colorado.
BY THE COURT:
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