Lalowski v. Corithian Schools Inc. et al
Filing
106
MEMORANDUM Opinion and Order: Signed by the Honorable Harry D. Leinenweber on 4/26/2013: Case TerminatedMailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DANIEL LALOWSKI,
Plaintiff,
Case No. 10 C 1928
v.
Hon. Harry D. Leinenweber
CORINTHIAN SCHOOLS, INC. and
CORINTHIAN COLLEGES, INC.,
Defendants.
MEMORANDUM OPINION AND ORDER
Before
the
Court
is
the
Plaintiff’s
Motion
for
Summary
Judgment with respect to Post-Verdict relief.
For the reasons
stated
denies
herein,
the
Court
grants
in
part
and
in
part
Plaintiff’s Motion.
I.
BACKGROUND
After a two-day trial, a jury returned a verdict in favor of
Plaintiff
Daniel
Lalowski
(hereinafter,
the
“Plaintiff”
or
“Lalowski”) on his Title IX retaliation claim against Defendants
Corinthian
Schools,
Inc.
and
Corinthian
Colleges,
Inc.
(hereinafter, collectively, the “Defendants” or “Corinthian”).
Specifically,
the
jury
determined
that
Defendants
retaliated
against Lalowski by terminating his employment shortly after he
notified Defendants’ President that his supervisor was engaging in
sexually inappropriate behavior with students.
As a result of the
termination, the jury found Lalowski suffered mental and emotional
distress and awarded the sum of $25,000 in damages.
At the conclusion of the trial, the Court directed the parties
to file Motions for Post-Verdict Relief.
On September 26, 2012,
Plaintiff
filed
a
Judgment.
In the Motion, Plaintiff requests that the Court award
his
Motion,
styled
as
Motion
him economic damages for back pay and lost benefits.
he
asks
to
be
reinstated
in
a
position
with
for
Summary
In addition,
Defendants
or
alternatively, to receive front pay.
II.
LEGAL STANDARD
Summary judgment is appropriate if the moving party “shows
that there is no genuine dispute as to any material fact and [it]
is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a).
A dispute is “genuine” if the evidence would permit a reasonable
jury to find for the non-moving party.
Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
A dispute is material if it could
affect the outcome of the case.
Id.
If the moving party satisfies
its burden, the non-movant must present facts to show a genuine
dispute exists to avoid summary judgment.
See Celotex Corp. v.
Catrett, 477 U.S. 317, 323–24 (1986). To establish a genuine issue
of fact, the non-moving party “must do more than show that there is
some metaphysical doubt as the material facts.” Sarver v. Experian
Info. Sys., 390 F.3d 969, 970 (7th Cir. 2004).
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III.
DISCUSSION
Lalowski prevailed on his Title IX retaliation claim against
Defendants.
The Seventh Circuit applies the same framework for
retaliation claims under Title IX as retaliation claims under
Title VII.
See, Milligan v. Bd. of Trustees of S. Illinois Univ.,
686 F.3d 378, 388 (7th Cir. 2012).
While Title VII forbids an
employer from discriminating against an employee who opposed any
practice protected by Title VII, Title IX prohibits discrimination
“on the basis of sex” and covers “retaliat[ion] against a person
because he complains of sex discrimination.” Id. citing Jackson v.
Birmingham Bd. of Educ., 544 U.S. 167, 174 (2005) (emphasis in
original).
Prior to the Civil Rights Act of 1991, a prevailing party in
a Title VII or IX action was limited to equitable relief –
compensatory damages were unavailable. See Randolph v. IMBS, Inc.,
368 F.3d 726, 732 (7th Cir. 2004). However, after the Civil Rights
Act of 1991 was passed, prevailing plaintiffs became entitled to
compensatory damages.
See, Hildebrandt v. Illinois Dept. of
Natural Res., 347 F.3d 1014, 1031 (7th Cir. 2003).
Generally,
compensatory damages are subject to limitations based on the size
of the employer.
See National R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 119 (2002).
Back pay and front pay are available damages for plaintiffs
who prevail in Title IX retaliation claims.
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These damages are
considered equitable and therefore are not subject to the statutory
limitations.
See 42 U.S.C. §§ 1981a(b)(2), 2000e-5(g); see also,
Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 848 (2001).
Reinstatement is another equitable remedy available to a
prevailing party in a Title IX retaliation case.
Hicks v. Forest
Preserve Dist. of Cook County Ill., 677 F.3d 781, 792 (7th Cir.
2012).
The Seventh Circuit has held that reinstatement is “the
preferred remedy for victims of discrimination and the court should
award it when feasible.”
862 (7th Cir. 2001).
Bruso v. United Airlines, 239 F.3d 848,
When such an award is not feasible, courts
may award front pay in lieu of reinstatement.
See Shick v. IDHS,
307 F.3d 605, 614 (7th Cir. 2002).
Lalowski seeks back pay and reinstatement from Defendants. He
alternatively
requests
front
pay
if
the
Court
determines
reinstatement impractical.
A.
Back Pay
Lalowski seeks $214,638.00 in back pay.
He claims he is
entitled to this amount of money because he was reasonably diligent
in his job search after being terminated, but was unable to find
comparable employment and because he lost 401(k) benefits as a
result of Defendants’ unlawful termination. Defendants oppose such
an award.
They claim Lalowski is not entitled to any back pay
because he failed to mitigate his damages and rejected an offer of
comparable employment after being terminated.
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“Title VII triggers a rebuttable presumption that a claimant
is entitled to an award of back pay.”
E.E.O.C. v. Gurnee Inn
Corp., 914 F.2d 815, 817 (7th Cir. 1990). After a prevailing party
establishes an amount of damages, the employer must demonstrate an
affirmative defense such as, failure to mitigate in order to reduce
the amount or prevent an award entirely.
Id. at 818.
Back pay is calculated by “measuring the difference between
actual earnings for the period and those which . . . [Plaintiff]
would have earned absent the discrimination by the defendant.”
U.S. E.E.O.C. v. Custom Companies, Inc., 02 C 3768, 2007 WL 734395
at *12 (N.D. Ill. Mar. 8, 2007).
accrue
when
the
plaintiff
Generally, back pay “begins to
first
loses
wages
due
to
the
discrimination [or retaliation] at issue, and [] ends on the date
of judgment.” Molino v. Bast Servs., No. 08-C-4399, 2011 WL 841891
at *3 (N.D. Ill. Mar. 7, 2011).
prevailing
plaintiff
must
reasonable
diligence
in
In order to recover back pay, a
mitigate
finding
his
new
damages
by
employment.
exercising
Gaffney
v.
Riverboat Servs. of Ind., 451 F.3d 424, 460 (7th Cir. 2006).
Failure to mitigate is an affirmative defense that a defendant must
prove to rebut a plaintiff’s claim for back pay.
Id.
In order to prove Lalowski failed to mitigate his damages,
Defendants
must
prove
that
(1)
Lalowski
failed
to
exercise
reasonable diligence to mitigate his damages; and (2) there was a
reasonable likelihood that Lalowski would have found comparable
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work by exercising such diligence. Hutchison v. Amateur Electronic
Supply, Inc., 42 F.3d 1037, 1044 (7th Cir. 1994).
1.
Failure to Exercise Reasonable Diligence
Lalowski admits he “did not actively seek work for about three
to six months due to the depression and stress he suffered . . . ”
as a result of his termination.
Pl.’s Mem. in Supp. of his Mot.
for Summ. J. to Post-Verdict Relief at 3, ECF No. 89, Page ID
#1057.
Defendants contend this admission illustrates Lalowski’s
failure to mitigate and necessitates a reduction in back pay.
Plaintiff argues his initial period of inactivity was excused
because of the distress he suffered as a result of Defendants.
Plaintiff relies on Gurnee Inn Corporation as support.
The Court
finds Plaintiff’s reliance misplaced.
In Gurnee Inn, the Seventh Circuit found a defendant could not
establish a failure to mitigate defense notwithstanding the fact
the plaintiff admitted she waited a period of time prior to seeking
new employment.
Id. at 818, n.4.
The plaintiff in Gurnee Inn was
a 15-year-old high school student who was sexually harassed by her
employer.
Id.
In light of the plaintiff’s age and lack of work
experience, the Seventh Circuit determined it was not “unreasonable
under the circumstances” for her to “wait some period before again
looking for work.”
Id.
The facts in Gurnee Inn are distinguishable from those here.
First, it is undisputed Lalowski is an adult who graduated from
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high
school
in
1996.
Def.’s
Resp.
Uncontested Material Facts at 2.
to
Pl.’s
Statement
of
Next, unlike the plaintiff in
Gurnee Inn who personally suffered sexual harassment, Lalowski did
not.
Instead,
he
reported
his
supervisor
inappropriate sexual conduct with students.
for
engaging
Id. at 7.
in
While the
Court does not intend to minimize the mental and psychological
stress that corresponds with reporting a colleague of such conduct,
the Court does not consider this circumstance analogous to a
teenager who was sexually harassed at her place of employment.
Accordingly, the Court finds Defendants have met their burden in
establishing Lalowski failed to exercise reasonable diligence for
the first six months after his termination.
After these initial six months, however, Lalowski has provided
sufficient evidence to demonstrate he has engaged in reasonable
efforts to secure employment.
Specifically, Lalowski submitted
work search records from the Illinois Department of Employment
Security from August 2, 2010 to December 17, 2010.
He claims he
also had multiple interviews for various positions at the end of
2009
and
the
beginning
of
2010.
Additionally,
he
provided
employment records which reflect employment as a car salesman
beginning in February 2011.
Lalowski states he remained employed
as a car dealer until he resigned so he could begin working in his
current job.
Id. at 13.
His current employer is a college
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advisory service company that provides consultative advice on
degree programs over the telephone.
Id.
In light of the evidence Lalowski presented, the Court finds
Defendants cannot establish Lalowski failed to exercise reasonable
diligence in his search for employment after his initial six months
of inactivity.
2.
Reasonable Likelihood of Finding Comparable Employment
In order to prevent an award of back pay, Defendants also must
demonstrate there was a reasonable likelihood that Lalowski would
have found comparable work if he exercised reasonable diligence in
his job search.
Hutchison, 42 F.3d at 1044.
Defendants claim they can satisfy this requirement because
Lalowski rejected an offer of comparable employment approximately
one year after his termination.
Lalowski argues the job offer he
received was for substantially less pay than his position with
Defendants and thus cannot be construed as comparable employment.
Prior
to
his
termination,
Lalowski
admissions representative with Defendants.
was
employed
as
an
Since he began his
employment with Defendants, Lalowski received a number of awards
and increases in pay.
It is undisputed that in January 2009 (when
Defendants terminated Lalowski) he earned an annual salary of
$64,260.
Def.’s Resp. to Pl.’s Statement of Uncontested Material
Facts at 6, ECF No. 95, Page ID# 1272.
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Lalowski admits that in approximately January 2010, he had a
job interview for a position as an admissions representative at
another
college
similar
to
Defendants.
Lalowski
recollects
receiving a verbal offer of employment from this college, but is
unaware if the school was Illinois Institute of Technology (“ITT”)
or Westwood College. Lalowski claims he rejected the offer because
the job only paid $45,000 per year.
The only evidence Lalowski has produced regarding the amount
of this offer is his own affidavit.
Because of this, Defendants
argue its evidence of Westwood College’s records “constitute the
strongest evidence of the amount of the job offer.” Defs.’ Mem. in
Opp. to Pl.’s Mot. for Summ. J. to Post-Verdict Relief at 6 n.4.
However, even if the Court assumes Defendants are correct and
the offer was in fact from Westwood College and not ITT, the
evidence Defendants present make it clear that a newly-hired
admissions representative at Westwood College receives a base
salary between “$28,000 to $49,500 . . . ”
Defs.’ App. of Ex. in
Supp. of Defs.’ Opp. to Pl.’s Mot. Tab 4 at 2.
It goes without
saying this salary is well below that which Lalowski earned with
Defendants.
Despite
this
difference,
Defendants
contend
the
College offer was an offer of comparable employment.
Westwood
They argue
Plaintiff had an obligation to reduce his salary demands after he
failed to find comparable employment after attempting to do so for
- 9 -
a few months.
obligation.
Defendants cite Hutchinson as support for this
The Court finds Defendants’ support misguided.
In Hutchinson, the Seventh Circuit affirmed a district court’s
conclusion that it was appropriate for a jury to exclude the above
market compensation a plaintiff received when analyzing Plaintiff’s
reasonable efforts to find comparable employment.
F.3d at 1045.
Hutchinson, 42
Hutchinson does not stand for the proposition that
a plaintiff has an affirmative duty to lower his salary demands
when he received an above average salary from a former employer who
discriminated against him.
Instead, Hutchinson amounts to the
Seventh Circuit’s finding that district courts do not abuse their
discretion
if
consideration
they
of
a
give
a
jury
plaintiff’s
instruction
above
market
that
allows
for
compensation
determine whether the plaintiff has mitigated damages.
Id.
to
As
such, the Court does not find Hutchinson persuasive with respect to
Defendants’
argument
and
thus
does
not
find
Defendants
have
demonstrated Lalowski would have obtained comparable employment.
Additional support for this finding lies in the definition of
comparable employment.
See Ward v. Tipton County Sheriff Dept.,
937 F.Supp. 791, 797 (S.D. Ind. 1996).
In reference to mitigation
of damages, comparable employment is defined as a position that
affords the
prevailing
opportunities,
party
compensation,
“virtually
job
identical
responsibilities,
conditions and status” as their previous position.
- 10 -
promotional
Id.
working
In this case, Defendants failed to present evidence that there
was
a
reasonable
likelihood
that
Lalowski
would
have
comparable work if he exercised reasonable diligence.
found
The fact
that Lalowski initially accepted employment as a car salesman
suggests that making such a showing in the current job market is
perhaps easier
said
than
done.
Regardless,
the
Court
finds
Defendants cannot demonstrate the affirmative defense of failure to
mitigate.
Therefore, Lalowski is entitled to back pay.
3.
Calculating Back Pay
Lalowski claims he is entitled to $214,638.00 in back pay.
Lalowski’s calculations are for the time period of Lalowski’s
termination through the date judgment was entered and include an
annual salary increase of five percent.
Lalowski argues an annual five percent salary increase is
appropriate because his salary had increased twenty-five percent
for two years. The Court finds this increase speculative and finds
the evidence Defendants presented regarding the fact that Lalowski
was earning “nearly the maximum salary budgeted for his position in
2009[,]” persuasive.
Pl.’s Mot. at 8.
Defs.’ Statements of Add. Facts in Opp. to
Accordingly, the Court declines to apply this
five percent increase.
The Court also declines to award Plaintiff back pay for the
first six months after his termination. During this time, Lalowski
admitted “he was not able to look for a job due to his depression
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and ‘shell shock.’”
Pl.’s Statement of Uncontested Facts at 4,
ECF No. 90, Page ID #1068.
While he argues that this period of
time should be excused because Defendants inflicted severe distress
on him, the Court does not find the circumstances of this case
justify Lalowski’s conduct, (or lack thereof).
See, Payne v.
Security Sav. & Loan Ass'n, F.A., 924 F.2d 109, 111 (7th Cir. 1991)
(upholding reduction of plaintiff's back pay award for period
during which his job search efforts consisted of spending merely
"[a] few hours a week, maybe a month" looking for employment).
Defendants claim if Plaintiff is entitled to back pay, he
should only receive $34,970. Defendants argue this amount excludes
(1) the first six months Plaintiff admitted he did not seek
employment; (2) the time Plaintiff was unemployed after he refused
the alleged comparable offer from Westwood College; and (3) the
time after Defendants closed the campus Lalowski worked.
The Court agrees with Defendants with respect to the first six
months after Lalowski was terminated.
However, the Court finds
Defendants’ other contentions belie the purposes of discrimination
and retaliation claims under Titles VII and IX.
In these cases,
the Seventh Circuit has repeatedly held that if a plaintiff proves
discrimination or retaliation, back pay may only be denied “for
reasons which, if applied generally, would not frustrate the
central statutory purposes of eradicating discrimination . . . and
making persons whole.”
E.E.O.C. v. O & G Spring and Wire Forms
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Specialty Co., 38 F.3d 872, 880 (7th Cir. 1994).
Because the
Westwood College offer was not an offer of comparable employment,
the Court refuses to cut off Lalowski’s back pay after he rejected
the offer.
The Court is equally unconvinced with Defendants’ argument
regarding the closure of the campus where Lalowski was employed.
While it is undisputed Defendants closed the admissions department
of the campus at which Lalowski worked in January 2012, it is also
undisputed that Defendants own at least six other college campuses
in the Chicagoland area.
Defs.’ Statement of Additional Facts in
Opp. to Pl.’s Mot. for Summ. J. at 8.
In light of this fact,
Lalowski argues it is plausible he would have been transferred to
another campus to work as an admissions representative.
Reply Memo. at 10, ECF No. 97, Page ID # 1308.
See Pl.’s
As support, he
presents evidence of another admissions representative who was
transferred
to
a
different
campus
to
work
as
an
admissions
representative after Defendants closed the one Lalowski worked.
Lalowski also provides evidence that Defendants transferred a
president from one of its older campuses to become the first
president of its new Melrose Park campus.
Given these facts, the Court does not find this to be a
scenario where Defendants can definitively know Lalowski would have
been laid off after the campus he worked at closed.
See Richardson
v. Rest. Mktg. Assocs., Inc., 527 F.Supp. 690, 696 n.1 (N.D. Cal.
- 13 -
Nov. 17, 1981) (stating that if plaintiffs failed to present
evidence that they “would have been able to transfer to other RMAmanaged facilities after its San Francisco operation closed, and
[failed to present evidence that they] would have been willing to
relocate for that period after RMA ceased to operate in San
Francisco” then the court would have refused to award back pay).
Here, Lalowski presents sufficient evidence that transfer was
possible and he would have been willing to relocate.
Thus, the
Court finds back pay for this period of time appropriate.
Accordingly, the Court awards Plaintiff $30,546 for the year
2009 (his base salary minus his earnings from Defendants for
January 1, 2009 through January 9, 2009 (his termination date) and
minus the first six months after his termination when he admitted
he did not look for other employment); $64,260 for 2010 and 2011
(his full base salary at the time of termination); and $41,501.25
for 2012 (his base salary for January 1, 2012 through August 22,
2012, the date judgment was entered).
The Court subtracts $34,250
from this total, as this is the amount Lalowski claims he earned
from his other jobs for this period of time.
Def.’s Resp. to Pl.’s
Statement of Uncontested Material Facts at 13, ECF No. 95, Page ID#
1279.
As such, the Court awards Lalowski $166,317.25 in back pay.
4.
401(k) Contributions
In addition to his back pay request, Plaintiff also seeks to
be reimbursed $6,222.22 in 401(k) contributions.
- 14 -
Lalowski states
Defendants matched contributions up to 2.5%.
He avers that if he
remained employed with Defendants, he would have made the maximum
contributions.
However, the only evidence Lalowski submits to
support this statement is a pay stub from 2008.
Page ID# 1107.
See ECF No. 91-4,
The pay stub indicates Lalowski had grossed
$58,760.76 as of December 28, 2008 and contributed $885.98 to his
401(k).
This constitutes a 1.5% contribution.
Court awards Plaintiff $2,494.76.
Accordingly, the
This amount reflects 1.5% of
$166,317.25, Plaintiff’s back pay award.
See Custom Companies,
Inc., 2007 WL 734395 at *13-14 (awarding 401(k) contributions as
back pay where the plaintiff presented sufficient evidence of prior
contribution).
5.
Pre-Judgment Interest
Plaintiff also seeks prejudgment interest on his back pay
award.
He claims he is entitled to interest at a rate of 3.25%.
The Court agrees.
Parties who prevail on their Title VII or Title IX retaliation
claims are entitled to prejudgment interest on their back pay
award.
See Fine v. Ryan Int’l Airlines, 305 F.3d 746, 757 (7th
Cir. 2002).
When calculating prejudgment interest, the Seventh
Circuit directs courts to use the prime rate.
Fritcher v. Health
Care Serv. Corp., 301 F.3d 811, 820 (7th Cir. 2002).
prime rate is 3.25%.
The current
Applying this rate to Lalowski’s back pay
- 15 -
award of $166,317.25, yields a total of $5,405.30.
The Court
awards this amount in prejudgment interest.
B.
Lalowski
also
seeks
Reinstatement
reinstatement.
He
requests
to
be
reinstated to one of the six campuses Defendants own in the
Chicagoland area.
Lalowski submits computer printouts of job
openings for admissions representatives at some of these campuses
and states that Defendants have posted two of these openings in the
past two years.
Defendants respond reinstatement is not feasible
since they closed the campus Lalowski worked.
The intent of Title VII (and in this case, Title IX) is to
restore a plaintiff to the situation he would have been in had no
retaliation occurred.
Gaddy v. Abex Corp., 884 F.2d 312, 319 (7th
Cir. 1989). Because of this, reinstatement is the preferred remedy
for prevailing parties in employment discrimination or retaliation
cases.
has
See Bruso, 239 F.3d at 861.
held
“reinstatement
circumstances
demonstrating
available . . .”
is
Indeed, the Seventh Circuit
warranted
that
the
absent
position
is
exceptional
no
longer
Stephenson v. Aluminum Co. of America, 915
F.Supp. 39, 56 (S.D. Ind. 1995) (citing Gaddy, 884 F.2d at 319).
That being said, reinstatement is not always required.
42 F.3d at 1046.
Hutchison,
Generally, reinstatement is not granted “where
the result would be undue friction and controversy.” Hutchison, 42
F.3d at 1046; McKnight v. General Motors Corp., 908 F.2d 104, 115
- 16 -
(7th Cir. 1990) (“McKnight I”).
However, employer hostility
developed during litigation cannot alone defeat reinstatement.
Hutchison, 42 F.3d at 1046; McKnight I, 908 F.2d at 116.
When determining whether or not reinstatement is appropriate,
courts in this Circuit examine various factors.
Such factors
include
the
(1)
the
hostility
of
the
employer;
(2)
lack
of
available positions; and (3) the employer’s dissatisfaction with
the employee’s job performance.
See McKnight v. General Motors
Corp., 973 F.2d 1366, 1370 (7th Cir. 1992) (“McKnight II”).
In
McKnight II, the Seventh Circuit affirmed a district court’s
decision not
to
reinstate
because
the
employee
asked
for
“a
completely different job and to be relocated in a new city,” and
there was no basis to conclude that the employee was qualified to
perform the job he requested or that a position was even available.
Id. at 1370-71.
The same is not true here.
reinstated
termination.
in
the
exact
In this case, Lalowski seeks to be
same
position
held
prior
to
his
Moreover, Lalowski has presented evidence that there
are at least two openings for admissions representatives at one of
Defendants’ campuses in the Chicago area.
See ECF No. 91-15.
In
addition to this, Defendants admit all of the individuals involved
in Lalowski’s termination are no longer employed with Defendants.
See Defs.’ Resp. to Pl.’s Statement of Uncontested Material Facts
- 17 -
at
19.
Taking
these
facts
into
account,
the
Court
finds
reinstatement appropriate and grants Lalowski’s request.
Defendants also claim reinstatement should be denied because
at his deposition Plaintiff admitted he did not list all of his
former employers on his resume.
Apparently one of the employers
that were not listed was a retail store that terminated Plaintiff.
Defendants claim they would have terminated Lalowski had they
discovered this while he was employed.
They state it is their
policy to terminate an employee when they discover the employee was
dishonest on his resume.
As support, Defendants provide the
declaration of their Vice President of Human Resources.
See ECF
No. 94-3.
A defendant in an employment discrimination or retaliation
case can assert an after-acquired evidence defense.
See generally
McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 361-62 (1995).
Under this defense, an employer may use evidence of the employee’s
misconduct it acquired after the case was filed to limit damages.
Sheehan v. Donlen Corp., 173 F.3d 1039, 1047 (7th Cir. 1999).
an
employer
asserts
this
defense,
it
must
establish,
When
by
a
preponderance of the evidence, the after-acquired evidence would
have led to the employee’s termination.
Id. at 1047-48.
The Court finds Defendants have failed to meet this burden.
In fact, their argument is nearly identical to one this Court
rejected in U.S. E.E.O.C. v. Custom Companies, 2007 WL 734395 at
- 18 -
*15.
In that case, the employer argued the employee’s damages
should have been limited because it discovered the employee lied on
her resume about her relevant work experience.
Id.
As support,
the employer presented a copy of their application that stated
misrepresentations were “cause for termination.”
Id.
This Court
did not find such evidence sufficient to prove the employee would
in fact have been fired.
Instead, the Court noted “[i]n order to
carry their burden, Defendants must do more than merely reiterate
their policy.”
Id.
The Court determined the employer needed to
establish that their decision to terminate not only would have been
justified, but also would have occurred.
Id.; see also Sheehan,
173 F.3d at 1048 (“the inquiry focuses on the employer's actual
employment practices, not just the standards established in its
employee manuals, and reflects a recognition that employers often
say they will discharge employees for certain misconduct while in
practice they do not”).
Like the employer in Custom Companies, Defendants here do
nothing more than assert Lalowski would have been fired after they
discovered he failed to include all his employers on his resume.
Defendants fail to present any evidence that in the past they have
fired other employees for such conduct. In fact, the only evidence
Defendants provide is the aforementioned declaration.
The Court
finds this falls short of a preponderance of evidence.
As such,
- 19 -
the Court rejects Defendants after-acquired evidence defense and
finds reinstatement appropriate.
C.
Front Pay
Lalowski requested front pay in the event the Court denied
reinstatement. In light of the Court’s grant of reinstatement, the
Court denies an award of front pay.
See Pollard v. E.I. du Pont de
Nemours & Co., 532 U.S. 843, 852 (2001) (front pay is appropriate
in lieu of reinstatement).
IV.
CONCLUSION
For the reasons stated herein, the Court grants in part and
denies in part Plaintiff’s Motion for Summary Judgment.
The Court
awards Plaintiff: (1) $166,317.25 in back pay; (2) $1,638.00 in
401(k) contributions; (3) $5,405.31 in prejudgment interest; and
(4) reinstatement.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Date:4/26/2013
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