Soliday v. 7-Eleven Inc.

Filing 169

OPINION AND ORDER granting in part and denying in part 155 Motion for front-pay, prejudgment interest, and entry of final judgment. The request for front-pay is denied, except for interim front pay, the request for prejudgment interest is granted, and the request for entry of final judgment is granted. See Opinion and Order for details. The Clerk shall enter judgment as stated in the Opinion and Order and close the file. Signed by Judge John E. Steele on 10/17/2011. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JAMES SOLIDAY,
Plaintiff,
vs.

Case No.

2:09-cv-807-FtM-29SPC

7-ELEVEN, INC.,
Defendant.
___________________________________
OPINION AND ORDER
This matter comes before the Court on Plaintiff’s Motion for
Award of Front-Pay, Prejudgment Interest, and Entry of Final
Judgment (Doc. #155) filed on July 23, 2011.

Defendant 7-Eleven,

Inc.’s Brief in Opposition (Doc. #157) was filed on August 11,
2011, to which plaintiff filed a Reply (Doc. #167) on August 24,
2011.

Defendant 7-Eleven, Inc.’s Sur-Reply (Doc. #168) was filed

on September 6, 2011.

Additionally, plaintiff filed Supplemental

Authority (Doc. #156), to which defendant filed a Response (Doc.
#158).
I.
On June 23, 2011, a jury found that plaintiff had a disability
and was a qualified individual; that plaintiff informed defendant
of the substantial limitations arising out of his disability and
identified and requested a reasonable accommodation which would
have allowed plaintiff to perform the essential functions of the
job;

and

that

defendant

unreasonably

refused

to

provide

the

requested accommodation.

(Doc. #147-2.)

The jury also found that

plaintiff was discharged from employment by defendant, and that
plaintiff’s disability was the motivating factor that prompted the
discharge.

(Id.)

The jury awarded $178,000.00 in damages for a

net loss of wages and benefits up to the date of trial, and
$756,000.00 for emotional pain and mental anguish. (Id.) The jury
declined to award punitive damages, finding defendant had acted in
a good faith

attempt to comply with the law by adopting policies

and procedures designed to prohibit such discrimination.

(Id.)

Plaintiff now seeks entry of a final judgment which includes
those damages plus equitable relief in the form of front pay and
prejudgment interest.

Plaintiff argues that reinstatement is not

a feasible remedy, and seeks front pay for thirteen (13) years, or
until

he

is

70

years

old,

in

the

amount

of

$502,397.00.

Alternatively, should front pay be awarded until he is 66 years
old, plaintiff requests the amount of $431,783.00.

Plaintiff also

seeks prejudgment interest of $30,861.49.
Defendant
Defendant

does

opposes
not

all

address

the

requested

reinstatement,

equitable
but

relief.

asserts

that

defendant is not eligible for front pay because he has not been an
active participant in the workforce since August 20, 2008, based
upon his award of social security disability benefits.

Defendant

also argues that plaintiff has failed to mitigate his damages by
using reasonable diligence in seeking employment, is judicially

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estopped

from

claiming

he

was

able

to

work

based

on

sworn

statements in connection with the Social Security disability, and
that the amount of requested front pay is excessive and based upon
unreliable expert opinion.
II.
The purpose of the Americans with Disabilities Act (ADA) is
the same as that of the Age Discrimination in Employment Act
(ADEA), Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1338
(11th Cir. 1999) which “is to make the plaintiff whole, to restore
the plaintiff to the economic position the plaintiff would have
occupied but for the illegal discrimination of the employer.”
Wilson v. S & L Acquisition Co., L.P., 940 F.2d 1429, 1438 (11th
Cir. 1991).

Having been awarded damages from the date of the

unlawful employment action through the date of trial, plaintiff is
further entitled to either reinstatement or front pay in order to
make him truly whole.

Brochu v. City of Riviera Beach, 304 F.3d

1144, 1162 n.31 (11th Cir. 2002). Both reinstatement and front pay
are equitable remedies within the sound discretion of the trial
court.

Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843,

847-48 (2001); Ramsey v. Chrysler First, Inc., 861 F.2d 1541, 1545
(11th Cir. 1988); Castle v. Sangamo Weston, Inc., 837 F.2d 1550,
1563 (11th Cir. 1988).
“The preferred equitable remedy to achieve this purpose is
reinstatement instead of front pay. The general rule is that

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prospective damages are awarded in lieu of reinstatement when it is
not feasible to reinstate the employee.”

Wilson, 940 F.2d at 1432

(citations and internal quotation marks omitted).

The Eleventh

Circuit has discussed this in some detail:
Previously, we have explained that reinstatement offers
the most likely means of making a plaintiff whole by
allowing her to continue her career as if the
discrimination had not occurred. See Allen v. Autauga
County Bd. of Educ., 685 F.2d 1302, 1305-06 (11th Cir.
1982). In Allen, we observed that “when a person loses [
][her] job, it is at best disingenuous to say that money
damages can suffice to make that person whole. The
psychological benefits of work are intangible, yet they
are real and cannot be ignored.” Id. at 1306.
As a result, we have fashioned a rule of “
‘presumptive reinstatement’ in wrongful discharge cases”
for victorious plaintiffs. Williams v. Roberts, 904 F.2d
634, 639 (11th Cir. 1990) (explaining that this rule
“follows the notion that money damages will seldom
suffice to make whole persons who are unlawfully
discriminated against in the employment environment”)
(citing Darnell v. City of Jasper, 730 F.2d 653, 655
(11th Cir. 1984)); see also Goldstein, 758 F.2d at 1448
(stating that reinstatement is the “ preferred remedy for
discriminatory discharge” in ADEA cases)(emphasis added);
Williams v. City of Valdosta, 689 F.2d 964, 977 (11th
Cir. 1982) (holding that “in this circuit, the law is
clear that a plaintiff so discriminated against in the
employment context is normally entitled to reinstatement
and back pay, absent special circumstances warranting the
denial of equitable relief”); Allen, 685 F.2d at 1305
(noting that “[m]any other cases that bind us have
reached the same conclusion: reinstatement is a basic
element of the appropriate remedy in wrongful employee
discharge cases and, except in extraordinary cases, is
required”).
However, reinstatement is not always required as
equitable
relief. We
have recognized
that
when
extenuating circumstances warrant, a trial court may
award a plaintiff front pay in lieu of reinstatement. See
Castle, 837 F.2d at 1562 (noting that reinstatement may
not be “a viable form of relief due to the surrounding
circumstances”). Such circumstances include situations
where “discord and antagonism between the parties would
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render reinstatement ineffective as a make-whole remedy.”
Goldstein, 758 F.2d at 1449; see also Wilson v. S&L
Acquisition Co., 940 F.2d 1429, 1438 (11th Cir. 1991)
(recognizing that “[t]he general rule is that prospective
damages are awarded in lieu of reinstatement when it is
not feasible to reinstate the employee”); Mt. Haskins v.
City of Boaz, 822 F.2d 1014, 1015 (11th Cir. 1987)
(noting that front pay “is an appropriate [equitable]
remedy
when
reinstatement
is
impracticable
or
inadequate”) (citation omitted). Yet we do require that
a trial court “carefully articulate” its reasons for
awarding front pay in lieu of reinstatement. See
Verbraeken, 881 F.2d at 1052 (citing Dickerson v. Deluxe
Check Printers, Inc., 703 F.2d 276, 280 (8th Cir. 1983)).
Farley, 197 F.3d at 1338-39.

Farley continued, stating:

[W]e emphasize that the presence of some hostility
between parties, which is attendant to many lawsuits,
should not normally preclude a plaintiff from receiving
reinstatement. Defendants found liable of intentional
discrimination may not profit from their conduct by
preventing former employees unlawfully terminated from
returning to work on the grounds that there is hostility
between the parties. [ ] To deny reinstatement on these
grounds is to assist a defendant in obtaining his
discriminatory goals.
Id. at 339 (citations omitted).
The Court finds that this is not the extraordinary case where
reinstatement is not feasible. The case was extensively litigated,
to be sure, but there is simply no convincing reason plaintiff
cannot

resume

working

for

defendant

with

the

reasonable

accommodations required by law, and every reason why he should do
so.

Having presided over the trial, as well as the pretrial

proceedings, the Court is satisfied that the factual circumstances
of this case do not render reinstatement an unworkable option for
either side.

7-Eleven believed it could do what it did, but was

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incorrect.

The Court agrees with 7-Eleven that plaintiff is able

to work (Doc. #157, pp. 11-12), including working for 7-Eleven with
the required accommodations. As is usually the case, a trial takes
its toll on all parties.

It is simply time for both sides to get

over it and get back to work, literally.
grants

front

pay

only

until

Accordingly, the Court

reinstatement,

and

orders

that

plaintiff be reinstated.
The interim front pay is calculated as follows: The Court
finds that defendant’s average salary number is more accurate, and
therefore the $68,930 figure will be utilized.

While the Court

agrees that plaintiff is entitled to lost fringe benefits as part
of his front pay award, plaintiff also has the burden of producing
evidence that substantiates his request.

Here, plaintiff has

provided evidence regarding the estimated cost to his employer for
his fringe benefits, not evidence regarding the value of the
benefits he would have received had he continued to be employed by
defendant.

Therefore, the only fringe benefit that the Court will

include in the front pay calculation is the $3,421.00 contributed
by defendant annually as a 401(K) matching contribution. Thus, the
total interim front pay amount is $72,351.00 per year.
III.
Plaintiff also requests prejudgment interest on his back pay
award, and calculates the amount at $30,861.49. (Doc. #155, p.19.)
Defendants do not contest the Court’s discretionary authority to

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award prejudgment interest, but argues that the rate of interest
used by plaintiff is incorrect.
Prejudgment interest on an award of back pay is available as
a remedy in an employment discrimination case, and its award is a
matter within the discretion of the Court.

Lindsey v. Am. Cast

Iron Pipe Co., 810 F.2d 1094, 1101 (11th Cir. 1987).
federal

statute

mandating

the

prejudgment

interest

There is no
rate,

and

therefore the Court also has the discretion to determine the rate
of interest.

Werner Enters., Inc. v. Westwind Marine Int’l, Inc.,

554 F.3d 1319, 1328 (11th Cir. 2009); Smith v. Am. Int’l Life
Assurance Co., 50 F.3d 956, 958 (11th Cir. 1995).

“That decision

is guided by principles of reasonableness and fairness, by relevant
state law,

and

by

the relevant

fifty-two

week

United States

Treasury bond rate, which is the rate that federal courts must use
in awarding post-judgment interest.”

Werner Enters., 554 F.3d at

1328-29 (citations and internal quotation marks omitted).
Plaintiff urges the Court to award prejudgment interest under
Florida law, a rate which varies between 6% and 11% for the
relevant time period.

Other Circuits which have considered the

issue have concluded that where liability exists under both federal
and state law, it is more appropriate to consider applicable
federal standards in fashioning an interest award.

See, e.g.,

Thomas v. iStar Fin., Inc., 629 F.3d 276, 280 (2d Cir. 2010);
Conway v. Electro Switch Corp., 825 F.2d 593, 602 (1st Cir. 1987).

-7-

In employment discrimination cases, the Eleventh Circuit has looked
to the rate set forth in 28 U.S.C. § 1961.

McKelvy v. Metal

Container Corp., 854 F.2d 448, 453 (11th Cir. 1988).
the

District

Court

applied

§

1961(c)(1).

On remand,

McKelvy

v.

Metal

Container Corp., 125 F.R.D. 179 182, (M.D. Fla. 1989).

That

subsection refers to 26 U.S.C. § 6621, which contains the provision
of the Internal Revenue Code that determines the rate of interest
applied to over-payments and under-payments of income taxes to the
federal government.
The

Court

finds

that

the

over-payment

rate,

which

is

effectively the rate at which one lends money to the government, to
be a more accurate approximation of the rate of return one would
have likely achieved over the back-pay period through reasonably
safe market investment.

See, e.g, Taylor v. Cent. Pa., Drug &

Alcohol Servs. Corp., 890 F. Supp. 360, 369 (M.D. Pa. 1995)(citing
E.E.O.C. v. Guardian Pools, Inc., 828 F.2d 1507, 1512 (11th Cir.
1987) and finding that interest based on the overpayment rate is a
better

reflection

of

lost

investment

opportunities);

But

cf.

Armstrong v. Charlotte Cnty. Bd. of Cnty. Comm’rs, 273 F. Supp. 2d
1312, 1317 (M.D. Fla. 2003)(finding that prejudgment interest
should

be

calculated

pursuant

to

§

6621,

but

underpayment rather than the overpayment rate).1

1

applying

the

The Court has

The rates for the relevant time periods are available at:
http://www.irs.gov/newsroom/article/0,,id=244259,00.html. (Revenue
(continued...)
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averaged the quarterly overpayment rate for 2008, 2009, 2010, and
2011 and compounded the interest annually as set forth below:

Accordingly, it is now
ORDERED:
Plaintiff’s

Motion

for

Award

of

Front-Pay,

Prejudgment

Interest, and Entry of Final Judgment (Doc. #155) is GRANTED in
part and DENIED in part as follows:
(A) The Request for front-pay is DENIED, except for interim
front pay as set forth below;
(B) Defendant shall reinstate plaintiff to employment at the
first

available

comparable

position

with

comparable

pay

and

benefits to that which plaintiff was receiving as of the date of
his termination.

1

(...continued)
Ruling 2011-18, p. 10.)
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(C) Plaintiff’s request for prejudgment interest is GRANTED,
and the amount is $17,696.32.
(D)

Until

reinstatement,

defendant

shall

pay

plaintiff

$6,029.25 monthly in interim front pay.
The request for entry of final judgment is GRANTED.

(E)

The

Clerk of Court shall enter judgment in favor of plaintiff and
against defendant as follows in accordance with the April 20, 2011
Opinion and Order (Doc. #110), the June 23, 2011 Jury Verdict and
this Opinion and Order:
i.
ii.

Counts III and IV are dismissed without prejudice;
Plaintiff is awarded $178,000.00 in compensatory damages

and $756,000.00 for emotional pain and mental anguish;
iii.

Plaintiff is awarded $17,696.32 in prejudgment interest

and $6,029.25 per month in interim front pay until reinstatement.
Defendant shall reinstate plaintiff to employment at the first
available comparable position with comparable pay and benefits to
that

which

plaintiff

termination.

was

receiving

as

of

the

date

of

his

The Clerk is further directed to close the case.

DONE AND ORDERED at Fort Myers, Florida, this
October, 2011.

Copies:
Counsel of record
DCCD

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17th

day of