Arroyo v. Volvo Parts North America LLC
Filing
177
MEMORANDUM OPINION AND ORDER Signed by the Honorable Robert M. Dow, Jr. on 7/13/2017. Mailed notice(cdh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LUZMARIA ARROYO,
Plaintiff,
v.
VOLVO GROUP NORTH AMERICA, LLC,
d/b/a VOLVO PARTS NORTH AMERICA,
Defendant.
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Case No. 12-cv-6859
Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
Plaintiff LuzMaria Arroyo sued Defendant Volvo Group North America, LLC, d/b/a
Volvo Parts North America (“Volvo”) for discrimination under the Americans with Disabilities
Act, 42 U.S.C. § 12101 et seq. (“ADA”) and the Uniformed Services Employment and
Reemployment Rights Act, 38 U.S.C. § 4301 et seq. (“USERRA”). On August 23, 2016, a jury
returned a verdict in favor of Plaintiff, awarding $2.6 million in compensatory damages and $5.2
million in punitive damages on Plaintiff’s ADA claim. The jury also found Defendant liable for
willfully violating USERRA when it terminated Plaintiff’s employment. Now before the Court
is Plaintiff’s request for equitable relief [167].
For the reasons set forth below, Plaintiff’s request [167] is granted in part and denied in
part. Upon review of the parties’ presentation at trial and the parties’ post-trial briefing, the
Court awards Plaintiff $141,388.53 in back pay, $84,131.92 in front pay, $41,348.61 in other
employment-related compensation, $8,546.10 in prejudgment interest, and $275,415.16 in
liquidated damages. Pursuant to 42 U.S.C. § 1981a(b)(3), the Court also reduces the jury’s $2.6
million compensatory damages award to $300,000 and vacates the jury’s $5.2 million punitive
damages award. All other forms of equitable relief are denied. With these matters decided, final
judgment will be entered in favor of Plaintiff. The parties will have until August 10, 2017 to file
any motions pursuant to Federal Rules of Civil Procedure 50 and 59, responses are due
September 7, 2017, and replies are due September 21, 2017.
I.
Background
Plaintiff LuzMaria Arroyo worked as a material handler for Defendant at its Chicago
Parts Distribution Center in Joliet, Illinois from June 13, 2005, until she was fired on November
8, 2011. Plaintiff was a member of the U.S. Army Reserve, and Volvo hired her with that
knowledge. Plaintiff received more than 900 days of military leave over six and half years of
employment at Volvo. Plaintiff was treated for service-related post-traumatic stress disorder in
December 2010 and formally diagnosed in January 2011. After her termination, Plaintiff filed a
lawsuit against Defendant under the ADA and USERRA, alleging that she was discriminated
against because of her military service and her PTSD.
Plaintiff sought compensatory and
punitive damages as well as equitable relief in the form of back pay, front pay, prejudgment
interest, reemployment, benefit reinstatement, notification to the Office of Federal Contracting
Compliance Program (“OFCCP”) of Defendant’s violations, and tax compensation. The Court
bifurcated the trial such that Phase I would be a jury trial covering liability on Plaintiff’s ADA
and USERRA claims, damages on Plaintiff’s ADA claim, and a finding of whether Defendant’s
USERRA violation was willful. In Phase II, the Court would decide any equitable relief.
On August 23, 2016, following a seven-day jury trial, the jury returned a verdict for
Plaintiff on all counts. Under Section I, titled “Liability for Plaintiff’s ADA Discrimination
Claim,” the jury marked the box for Plaintiff. [161, at 1.] Section II is titled, “Damages for
Plaintiff’s ADA Discrimination Claim.” Id. at 2. Part A of this section is titled “Compensatory
Damages,” and the jury awarded $2.6 million. Id. Part B of this section is titled “Punitive
2
Damages,” and the jury awarded $5.2 million. Id. In total, the jury awarded $7.8 million on
Plaintiff’s ADA claim. Section III is titled, “Liability for Plaintiff’s USERRA Discrimination
Claim.”
Id. at 3.
The jury found that Plaintiff proved that her military service was the
motivating factor that prompted Defendant to terminate her, Defendant failed to prove that it
would have terminated her even if it had not taken her military service into account, and that
Plaintiff proved that Defendant had “willfully” violated USSERA when it terminated her
employment. Id. Now before the Court are Plaintiff’s requests for equitable relief.
II.
Legal Standard
If an employer has been found to have intentionally engaged in an unlawful employment
practice, a district court may order back pay, reinstatement, and “any other equitable relief as the
court deems appropriate.” 42 U.S.C. § 2000e–5(g)(1). Back pay “represents the wages the
plaintiff would have earned had she not been fired between the time of the firing and the date of
judgment.” Gracia v. Sigmatron Int’l, Inc., 130 F. Supp. 3d 1249, 1255 (N.D. Ill. 2015) (citing
Seventh Circuit Pattern Civil Jury Instruction 3.11). If reinstatement is not appropriate, a court
can award front pay in lieu of reinstatement. Pollard v. E.I. du Pont de Nemours & Co., 532
U.S. 843, 846 (2001); accord Shick v. Ill. Dep’t of Human Servs., 307 F.3d 605, 614 (7th Cir.
2002). “Front pay represents the wages the plaintiff would have earned had she not been fired
measured from the date of the judgment to some reasonable point in the future.” Gracia, 130 F.
Supp. 3d at 1255. “Back pay and front pay are not considered ‘compensatory damages’ under
Section 1981a, and thus are not subject to any statutory caps or limitations.” Parker v. Madison
Cty. Reg’l Office of Educ., 2013 WL 4600625, at *1 (S.D. Ill. Aug. 29, 2013); accord Pollard,
532 U.S. at 848. Moreover, “the granting of prejudgment interest is left to the sound discretion
of the district court.” United States v. Bd. of Educ. of Consol. High Sch. Dist. 230, Palos Hills,
Ill., 983 F.2d 790, 799 (7th Cir. 1993). “The court has broad discretion under 42 U.S.C.
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§ 2000e–5(g) to craft equitable relief necessary to make [a prevailing plaintiff] whole.” Pickett
v. Sheridan Health Care Ctr., 2009 WL 2407736, at *6 (N.D. Ill. Aug. 4, 2009).
III.
Analysis
Before discussing Plaintiff’s entitlement to equitable relief, both parties put the jury’s
verdict on Plaintiff’s ADA claim front and center. The Court addresses that issue first.
A.
Jury’s ADA Compensatory and Punitive Damages Award
ADA claims are subject to the statutory damages caps of 42 U.S.C. § 1981a(b)(3). See
E.E.O.C. v. AutoZone, Inc., 707 F.3d 824, 831 (7th Cir. 2013) (applying Section 1981(a)(b)(3) to
ADA claims). Section 1981a(b)(3)(D) provides that “[t]he sum of the amount of compensatory
damages awarded under this section for future pecuniary losses, emotional pain, suffering,
inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and the
amount of punitive damages awarded under this section, shall not exceed * * * in the case of a
respondent who has more than 500 employees in each of 20 or more calendar weeks in the
current or preceding calendar year, $300,000.” Backpay, interest on backpay, and front pay are
excluded from the definition of “compensatory damages.” 42 U.S.C. § 1981a(b)(2). Because
Volvo has more than 500 employees [170, at 5], this statutory command requires the Court to
reduce the jury’s $7.8 million ADA award to $300,000, at most.
To avoid this result, Plaintiff advances two arguments. First, she points to the party’s
“Joint Statement on Division of Responsibility Between Judge and Jury” regarding Plaintiff’s
damages claims. [See 141.] In that Joint Statement, the parties itemized four categories of
damages and whether the judge or jury had responsibility for awarding those damages: (1) “Lost
wages through March 4, 2016 (Judge)”; (2) “Punitive and Liquidated damages for Volvo’s
intentional violation of USERRA and the ADA (Jury)”; (3) “Attorney’s Fees (Judge)”; and
“Case Costs to Date (Judge).” Id. at 1–2. Plaintiff characterizes this document as a “definitive
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pretrial agreement in an action at law for damages” that “should be binding on all parties after
trial.” [167, at 5.] As a result, Plaintiff contends that “the parties have stipulated and agreed that
the jury was to determine liquidated damages under USERRA if an intentional violation was
found” (id. at 8 (emphasis added)) and Defendant “has forfeited any benefit of compensatory,
punitive, or liquidated damages caps on the amounts awarded by the jury” [172, at 18–19].
Plaintiff’s argument must overcome the fact that the verdict form in this case was clear.
It included on one page a section for “damages for Plaintiff’s ADA discrimination claim” with a
subsection for “compensatory damages” and another for “punitive damages.” [161, at 2.] The
following page is titled “liability for Plaintiff’s USERRA discrimination claim” and does not
include any damages subsections. Id. at 3. The jury was expressly directed not to award
damages on the USERRA claim [156, at 28] and there are no blank spaces where the jury could
have written a damages figure. Indeed, the jury did not write in any numbers on this section of
the verdict form. Thus, nothing on the verdict form or in the Court’s instructions suggests that
the jury awarded any damages for Plaintiff’s USERRA claim.
Plaintiff essentially argues that the Court should rewrite the verdict form in light of the
parties’ Joint Statement to mean that the jury did award uncapped “liquidated” USERRA
damages as part of its ADA award. The Court is unaware of any authority by which it could do
that, and Plaintiff cites none. The Court also cannot see how Defendant forfeited the statutory
caps based on the Joint Statement. The parties never expressly waived Section 1981a(b)(3)’s
damages caps (assuming that parties could consent to that) and Plaintiff offers no basis to think
that the parties agreed to that result sub silentio. In fact, were the Court to agree with Plaintiff
that this “binding” Joint Statement modifies the jury’s verdict, the Court would be required to
eliminate the $2.6 million compensatory damages award entirely because the Joint Statement
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only says the jury would decide “Punitive and Liquidated damages.” [141.] In reality, the Joint
Statement memorializes the fact that the jury would decide compensatory and punitive damages
for Plaintiff’s ADA claim (as is ordinarily true) and the factual issues required for imposition of
“liquidated” damages under 38 U.S.C. § 4323(d)(1)(C) (i.e., whether Defendant’s violation of
USERRA was “willful”). See DeLee v. City of Plymouth, Ind., 773 F.3d 172, 174 n.1 (7th Cir.
2014) (“A plaintiff is entitled to a jury trial on a liquidated damages claim under USERRA,”
meaning that it will up to the jury to decide wither a defendant’s violation of USERRA was
“willful.”). That is exactly how the issues were presented to the jury here.
Second, Plaintiff invokes Pals v. Schepel Buick & GMC Truck, Inc., 220 F.3d 495 (7th
Cir. 2000), and argues that the questions presented to the jury regarding compensatory damages
were ambiguous and the “jury was not instructed that they were only being asked to render a
verdict on the value of discrimination that [she] experienced under the ADA.” [167, at 7; 172, at
9–10, 18–19.] In Pals, the jury was provided a general verdict form and asked to determine
“compensatory damages” under the ADA without specifying whether the jury would also
determine “back and front pay.” 220 F.3d at 499–500. The Seventh Circuit held that “[n]either
back nor front pay counts against a maximum award of compensatory damages under
§ 1981a(b)(3).” Id. at 499. Because the jury in Pals “did not separate compensatory damages
under § 1981a from other monetary relief [such as front or back pay], it is impossible to know
whether the verdict includes more than $100,000 in” the specific types of compensatory damages
capped by Section 1981a(b)(3). Id. at 500. The Seventh Circuit explained that defendant could
have raised this issue regarding the jury instructions or verdict form but failed to do so, which
meant it had “forfeited any benefit of § 1981a(b)(3)(B).” Id.. The Seventh Circuit further noted
that although issues of front and back pay under the ADA were equitable issues, the parties could
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consent to have a jury decide back and front pay and had impliedly done so in this case. Id. at
501.
Unlike Pals, the jury in this case received the following compensatory damages
instruction on Plaintiff’s ADA claim:
In calculating damages, you should not consider the issue of lost wages and
benefits. The court will calculate and determine any damages for past or future
lost wages and benefits.
You should consider the following types of
compensatory damages, and no others:
1. The physical, mental, and emotional pain and suffering that
Plaintiff LuzMaria Arroyo has experienced. No evidence of the
dollar value of physical, mental, or emotional pain and suffering
has been or needs to be introduced. There is no exact standard for
setting the damages to be awarded on account of pain and
suffering. You are to determine an amount that will fairly
compensate Plaintiff LuzMaria Arroyo for the injury she has
sustained.
2. The reasonable value of medical care that Plaintiff LuzMaria
Arroyo reasonably needed and actually received.
[156, at 22.] The jury received a separate instruction about how to calculate punitive damages.
See id. at 23–24. Consistent with the requirements of 42 U.S.C. § 1981a(c)(2), the Court did not
inform the jury of the statutory damages caps. The jury was also instructed
If you find that Plaintiff LuzMaria Arroyo has proved her USERRA
discrimination claim against Defendant Volvo Trucks, you will not consider the
question of damages as to that claim. Damages for violations of USERRA are
determined by the Court. Your only job with respect to Plaintiff’s USERRA
discrimination claim is to determine the issue of liability.
[156, at 28.]
Nothing about these instructions suggests that (1) the jury should have been confused
about whether they were calculating back pay or front pay as part of a compensatory damages
award under the ADA; (2) it is ambiguous whether the jury thought that were awarding damages
under USERRA and the ADA; or (3) the statutory caps under ADA no longer applied to this
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case. The instructions removed front and back pay from the jury’s compensatory damages
consideration and distinguished who was responsible for awarding damages for Plaintiff’s ADA
and USERRA claims. Pals cannot be relied upon to avoid Section 1981a(b)(3)(B)’s statutory
damages caps for Plaintiff’s ADA claim, and the jury’s compensatory and punitive damages
award here must be reduced to no greater than $300,000 total.
Section 1981a(b)(3) “contains no command as to how a district court is to conform a jury
award to the statutory cap.” Jonasson v. Lutheran Child & Family Servs., 115 F.3d 436, 441
(7th Cir. 1997). The Seventh Circuit has “upheld a decision that took the entire cut out of the
award of punitive damages and another that took the entire cut out of the award of compensatory
damages.” Lust v. Sealy, Inc., 383 F.3d 580, 589 (7th Cir. 2004). It has also noted that “in a
normal suit punitive damages are something added on by the jury after it determines the
plaintiff’s compensatory damages,” so it is “probably the sensible thing for the judge * * * not to
make a pro rata reduction * * * but instead to determine the maximum reasonable award of
compensatory damages, subtract that from $300,000, and denote the difference punitive
damages.” Id. Compensation is the primary purpose of Section 1981(a)’s remedies, and “[t]he
more common approach is to take the entire cut from punitive damages.” Alford v. Aaron’s
Rents, Inc., 2011 WL 2669626, at *1 (S.D. Ill. July 7, 2011); accord Tart v. Elementis Pigments,
Inc., 191 F. Supp. 2d 1019, 1024 (S.D. Ill. 2001); Williams v. Pharmacia Opthalmics, Inc., 926
F. Supp. 791, 794 (N.D. Ind. 1996).
Here, the jury found that Plaintiff required a significant damages award to compensate
her for Defendant’s ADA violations. Consistent with that judgment, the Court will first apply
the jury’s compensatory award toward the statutory cap.
8
That award exhausts the entire
$300,000 limit, leaving no room for additional punitive damages under the ADA.1 The Court,
therefore, reduces the $2.6 million compensatory damages award to $300,000 and vacates the
jury’s $5.2 million punitive damages award.2
B.
Back Pay
Employees who prove employment discrimination are presumptively entitled to back
pay. See David v. Caterpillar, Inc., 324 F.3d 851, 865 (7th Cir. 2003); Gracia, 130 F. Supp. 3d
at 1256. The prevailing plaintiff bears the initial burden of establishing the amount of back pay,
and then the burden “shifts to the defendant to show that the plaintiff failed to mitigate damages
or that damages were in fact less than the plaintiff asserts.” Hutchison v. Amateur Elec. Supply,
Inc., 42 F.3d 1037, 1044 (7th Cir. 1994); see also Taylor v. Philips Indus., Inc., 593 F.2d 783,
787 (7th Cir. 1979) (“Not until the plaintiff establishes what she contends are her damages does
the burden of going forward to rebut the damage claim or to show plaintiff’s failure to mitigate
damages, fall on defendant.”). “When assessing back pay, or awarding front pay in lieu of
reinstatement, the judge must respect the findings implied by the jury’s verdict.” Pals, 220 F.3d
at 501. “But whatever discretion the facts allow with respect to back pay and front pay belongs
to the judge rather than the jury.” Id.
1.
Plaintiff’s Burden
Plaintiff was terminated from Volvo on November 8, 2011, and the jury returned its
verdict on August 23, 2016. The relevant question is what Plaintiff would have earned in this
more than four year period between November 8, 2011, and August 23, 2016, had she remained
1
The jury’s retributive and deterrent objectives in awarding punitive damages will be accomplished, at
least in part, through the liquidated damages award under USERRA.
2
Defendant indicates that it plans to file motions under Federal Rules of Civil Procedure (“Rule”) 50 and
59, on whether Plaintiff presented any evidence of compensatory damages at trial. [See 170, at 4–7.] The
Court expresses no opinion on that claim and nothing in this opinion should be construed as foreclosing
Defendant from arguing that additional reductions in Plaintiff’s ADA award are required.
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employed by Volvo. [172, at 25.] Plaintiff’s opening brief omits any discussion of her back pay
calculations. While she attaches a document that includes various calculations [167-1], she
provides very little explanation of those figures and no supporting evidence.
Based on
documents and amounts corroborated by Defendant [1701-1] and supplemented by Plaintiff on
reply, Plaintiff’s proposed estimated lost earnings are represented in the following chart:
Year
2011
2012
2013
2014
2015
2016
Total
Shift
Differential3
$56,014.40
$5,601.44
$57,699.20
$5,769.92
$59,425.60
$5,942.56
$61,193.60
$6,119.36
$63,044.80
$6,304.48
$64,937.60
$6,493.76
$362,315.20 $36,231.52
Base Pay
Overtime
Hours4
390
0
0
0
858
819
2,067
Overtime
Rate5
$40.40
$41.61
$42.86
$44.13
$45.47
$46.83
N/A
Overtime
Pay
$15,756.00
$0.00
$0.00
$0.00
$39,013.26
$38,353.77
$93,123.03
Total Pay
$77,371.84
$63,469.12
$65,368.16
$67,312.96
$108,362.54
$109,785.13
$491,669.75
There are two obvious problems with these estimates. First, Plaintiff does not prorate her
pay for 2011 or 2016 notwithstanding the fact that she worked until November 2011 and could
only receive back pay through August 23, 2016.6 Second, Plaintiff offers no support for her
projected overtime hours beyond saying that “she never refused overtime pay opportunities
whenever offered and, in fact, actively pursued those overtime opportunities” [172, at 31], which
is evidenced by an email in which she claims to have been “denied the ability to perform
Saturday overtime as offered to all employees” [172-24].
Plaintiff worked fewer than 20
overtime hours most years, and the most that she ever worked was about 78 hours in 2005. [170,
3
This figure represents 10% of Defendant’s annual pay. [167-1, at 3; 170-1.]
4
Plaintiff states that Defendant failed to produce overtime information for 2012 through 2014, although
Plaintiff identifies no explanation for the figures from 2011, 2015, or 2016. [167-1, at 3.]
5
This figure represents each year’s hourly rate multiplied by 1.5. [167-1, at 3; 170-1.]
6
In her offset calculations described below, Plaintiff deducts her $40,803.04 in net pay from her 2011
earnings. [167-1, at 4; 172-23, at 2.] However, she uses her gross pay for estimating her base pay
amount. To simplify matters and avoid improperly inflating her back pay, the Court simply prorates her
base pay for the seven weeks of 2011 after she was terminated.
10
at 12–13.] She offers no evidence that she would have worked eleven times that amount in 2015.
Moreover, for the first 10 months of 2011, Plaintiff worked fewer than 75 hours of overtime. Id.
at 13. If Plaintiff has a reason that she would have worked an additional 315 overtime hours in
the next seven weeks to reach a yearly total of 390, she does not disclose it.
Plaintiff worked on average 34.7 hours of overtime per year in her seven years of
employment with Volvo. Id. Based on this information, the Court sets Plaintiff’s overtime hours
at this average for the relevant back pay time period. Plaintiff’s estimated lost earnings must be
revised as follows:
Year
2011
2012
2013
2014
2015
20168
Total
Shift
Differential
$7,540.40
$754.04
$57,699.20
$5,769.92
$59,425.60
$5,942.56
$61,193.60
$6,119.36
$63,044.80
$6,304.48
$41,696.43
$4,169.64
$290,600.03 $29,060.00
Base Pay
Overtime
Hours
07
34.7
34.7
34.7
34.7
22.3
161.1
Overtime
Rate
$40.40
$41.61
$42.86
$44.13
$45.47
$46.83
N/A
Overtime
Pay
$0.00
$1,443.87
$1,487.24
$1,531.31
$1,577.81
$1,043.41
$7,083.64
Total Pay
$8,294.44
$64,912.99
$66,855.40
$68,844.27
$70,927.09
$46,909.48
$326,743.67
The next issue for Plaintiff is how much these amounts must be offset by her other
sources of income between 2011 and 2016. See 42 U.S.C. § 2000e-5(g)(1) (“Interim earnings or
amounts earnable with reasonable diligence by the person or persons discriminated against shall
operate to reduce the back pay otherwise allowable.”).
In May 2012, Plaintiff began her
employment with Schneider Trucks as a Team Over the Road Driver, which involves driving
distances greater than 500 miles in teams. [170-7, at 6.] That employment ended in May 2014.
[174, at 2.] Plaintiff then started work for Bear Cartage & Intermodal, Inc. within that same
month (id.), but was terminated on May 20, 2015 [170-2]. Plaintiff also received unemployment
7
Plaintiff worked 74.89 hours of overtime in 2011, which is close the maximum amount she ever worked
and more than double her average. Plaintiff fails to satisfy her burden to show that she would have
worked any more overtime in the remainder of 2011.
8
These amounts are prorated for the 64.21 percent of 2016 that Plaintiff would have worked at Volvo.
11
benefits in 2012, 2013 and 2014, and she deducts these amounts from her own calculations. See
Smith v. Farmstand, 2016 WL 5912886, at *22 (N.D. Ill. Oct. 11, 2016) (“Whether to deduct
unemployment compensation from an award of back pay is within the discretion of the trial
court.”). In 2016, Plaintiff was hired by the Department of Veterans Affairs at the Edward
Hines, Jr. VA Hospital [174-1, at 14]. Plaintiff’s sources of income between 2011 and 2016 are
reflected in the following chart:
Year
Unemployment
Schneider
Bear
VA
2011
2012
2013
2014
2015
2016
Total
$0.00
$11,748.00
$257.00
$0.00
$9,931.00
$0.00
$21,936.00
$0.00
$10,782.84
$15,264.80
$10,443.18
$0.00
$0.00
$36,490.82
$0.00
$0.00
$0.00
$29,001.63
$13,187.95
$0.00
$42,189.58
$0.00
$0.00
$0.00
$0.00
$6,930.009
$20,522.0010
$27,452.00
Total Other
Compensation
$0
$22,530.84
$15,521.80
$39,444.81
$30,048.95
$20,522.00
$128,068.40
Taking these charts and totals together, Plaintiff’s initially showing is that she is entitled
to $198,675.27 in back pay.11
2.
Failure to Mitigate
Generally, “a discharged employee must mitigate damages by using reasonable diligence
in finding other suitable employment.” Graefenhain v. Pabst Brewing Co., 870 F.2d 1198, 1202
(7th Cir. 1989) (internal quotation marks and emphasis omitted). Because Section 2000e–5(g)(1)
requires subtracting amounts “earnable with reasonable diligence” from any back pay award, a
plaintiff “cannot just leave the labor force after being wrongfully discharged in the hope of
9
Plaintiff’s resume states that she was receiving VA benefits from August 2015 through January 2016 at
$8.25 per hour for 40 hours a week [174-1, at 23]. Plaintiff’s calculations [167-1] omit these payments.
10
Plaintiff originally deducted $28,683.20 from her backpay calculations [167-1, at 4], but her 2016 W-2s
show that she earned $31,960.75 in 2016 [174-1, at 1]. The Court has prorated that amount for 2016.
11
Plaintiff seeks an additional $48,865.30 in “Army pay” related to her weekend drills for 2011 through
2016. [167-1, at 4.] She never discusses this request in her briefs and fails to justify it with any evidence
or law suggesting that Defendant bears responsibility for this pay. Her request for Army pay is denied.
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someday being made whole by a judgment.” Hutchison, 42 F.3d at 1044. Likewise, a lack of
job-seeking success will not excuse a plaintiff from the duty to mitigate. See Payne v. Security
Savings & Loan Assoc., 924 F.2d 109, 111 (7th Cir. 1991). Although the duty to mitigate falls
on the plaintiff, see Ford Motor Co. v. EEOC, 458 U.S. 219, 231 (1982), it is the employer’s
burden to establish that the plaintiff failed to mitigate her damages, see Hutchison, 42 F.3d at
1044. “To establish the affirmative defense of a plaintiff’s failure to mitigate damages, the
defendant [ ] must show that: (1) the plaintiff failed to exercise reasonable diligence to mitigate
her damages, and (2) there was a reasonable likelihood that the plaintiff might have found
comparable work by exercising reasonable diligence.” Hutchison, 42 F.3d at 1044 (citation
omitted); see also Wheeler v. Snyder Buick, Inc., 794 F.2d 1228, 1234 (7th Cir. 1986).
Defendant argues that Plaintiff’s back pay calculations should be reduced for three reasons.
First, Defendant contends that Plaintiff’s back pay cut-off is May 2015—the date that she
was terminated from Bear Cartage. According to Plaintiff’s termination letter, Bear Cartage
ended her employment because she “failed to report to work and ha[d] not answered or returned
[its] phone calls,” which left Bear Cartage “no choice but to assume [she] no longer want[s] to
work.”
[170-2.]
Plaintiff does not dispute that account, admitting that this job was “too
physically demanding” and required her to “seek therapy.” [172, at 27.] Plaintiff then applied
for work at Hines as part of the Department of Veterans Affairs’ Compensated Work Therapy
(“CWT”) program. As described by the Social Security Administration, the VA “administers the
* * * CWT program[] that provide[s] therapeutic and rehabilitative services to eligible veterans
with mental illness who are unable to work and support themselves.” Soc. Sec. Admin. Program
Operations Manual Sys. SI 00830.311, https://secure.ssa.gov/apps10/poms.nsf/lnx/0500830311
(last visited July 13, 2017). Plaintiff agrees that CWT “is specifically designed for employees
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who were unable to function in the customary job market.” [172, at 27.] She also describes
CWT as a program that helps former service members “iron out the ‘issues’ that keep them from
being productive members of society.” [170-4, at 3.] Plaintiff states that she is “presently
employed in Environmental Management Services as a House Keeping Aide at” Hines. [172, at
27; 174 at 2; 174-1, at 14.] Based on this work history, Defendant argues that “this Court should
not consider any time period after [Plaintiff] left the job market in May 2015” for purposes of
calculating backpay. [170, at 11.]
Plaintiff responds that she “did not voluntarily abandon jobs or voluntarily remove
herself from the workforce.” [172, at 27.] In light of her Bear Cartage termination letter and her
enrollment in the CWT program, that assertion is insufficient. See, e.g., Flowers v. Komatsu
Min. Sys., Inc., 165 F.3d 554, 557 (7th Cir. 1999) (“[W]e find that to award back pay to Flowers
for the entire period from his termination to the trial was an abuse of discretion. Clearly, there
are times when Flowers could not work, with or without an accommodation.”). Both of those
events indicate that Plaintiff either did not want (or was incapable of continuing) to work as a
material handler. Plaintiff attempts to support her claim that she did not stop looking for similar
work by attaching “a list of the various places where [she] sought gainful employment after her
termination from Volvo” (id. at 26). [See 172-20.] That “list” is a collection of job seeking
correspondence that Plaintiff sent.
It also includes a list of companies to which it was
recommended that she apply. Id. at 6. None of this correspondence post-dates May 2015, and
thus does not show that Plaintiff was looking for comparable work after this date. Payne, 924
F.2d at 111 (affirming reduction in backpay after plaintiff’s “job search had slowed to a trickle”).
14
Plaintiff’s transition from working as a housekeeping aide at Hines through the CWT
program to working as a housekeeping aide at Hines as a VA employee does not alter this
conclusion. In July 2015, Plaintiff described why she entered the CWT program:
in my case, i can do ANY job. but i have no clue what job i WANT to do. where
would i find my purpose and passion and thus be happy the job that i am doing? i
chose truck driving as a knee jerk reaction and it served its purpose well at that
time. i was able to earn a living, run away from people and my problems and just
focus on working, my lawsuit, what did i want in my life and so on. but i am now
at a different level in my development and thus need a different type of job and
living environment. this therapy is helping me to figure all that out. how to
balance work/money, with spending time with friends/family/self care, all while
finding the job in what I am doing/instead of fighting for everything * * *.
[170-4, at 3.] Plaintiff’s decision to pursue full-time employment as a housekeeping aide at
Hines at the conclusion of her CWT program is consistent with the sentiment that she wanted a
“different type of job” than a truck driver. Plaintiff does not suggest that she looked for any
other job when her CWT enrollment ended or describe her job seeking efforts, if any. In short,
her decision to pursue full-time housekeeping work at Hines reinforces the conclusion that she
was not diligently searching for jobs similar to her old material handler job in 2016. See, e.g.,
Hutton v. Sally Beauty Co., 2004 WL 2397606, at *4 (S.D. Ind. Oct. 22, 2004) (Plaintiff “has
introduced no evidence in support of a good faith effort to secure comparable employment.”).
Plaintiff contends that she simply could not find “comparable employment,” which is
defined as a position that affords the prevailing party “virtually identical promotional
opportunities, compensation, job responsibilities, working conditions and status as the position
from which she was discharged.” Hutchison, 42 F.3d at 1044. Specifically, Plaintiff contends
that “comparable $90,000 jobs are not readily available to [Plaintiff] in the Chicagoland
community without a college degree.” [172, at 28.] Plaintiff’s briefs never articulate how she
arrived at the $90,000 figure, which is significantly higher than Plaintiff’s own backpay
calculations (excluding overtime) for every year between 2011 and 2016 [167-1]. In response to
15
the Court’s supplemental order requesting that Plaintiff substantiate that figure [173], Plaintiff
submitted earnings statements from other self-described “comparator” employees who work at
Volvo [174, at 3]. Even putting aside that Plaintiff never explained how she is similarly situated
to those employees, none of these comparators earned $90,000 for any year between 2011 and
2016 [174-1, at 35–50]. Plaintiff’s contention that the only comparable job for her is one that
provides a $90,000 annual salary is not based in fact.
Based on the evidence in the record and evidence readily available to the Court, see Fed.
R. Evid. 201, the Court concludes that there was a reasonable likelihood that the plaintiff might
have found comparable work by exercising reasonable diligence. Defendants offer evidence
from a job search website showing fulltime material handler jobs within 25 miles of Joliet result
in 809 hits, and submit job postings for fifteen of these positions. [175, at 2; 175-1.] Plaintiff
does not explain why, for example, the jobs that she took at Schneider Trucks or Bear Cartage,
the other jobs for which she applied [170-20, at 18], or any of the other jobs for which it was
recommended that she apply (id. at 6) were not comparable employment.12
Furthermore,
Plaintiff does not offer any evidence to support her claim about the kind of jobs that are readily
available in Chicago for someone of her education and skill level.
These unsubstantiated
arguments are insufficient to defeat Defendant’s affirmative defense.
Plaintiff separately argues that her backpay award should not be reduced after 2015
because she “enrolled at Lewis University in Romeoville, Illinois” to secure a college degree “to
increase her chances of securing a $90,000 job.” [172, at 28–29.] She also “reports that she has
not had very much success in college the past 2 semesters and fears that she might not be able to
finish her college degree.” Id. at 29. It is not clear when exactly Plaintiff enrolled in school
12
The website for at least one of those jobs, Roehl Transport, Inc., states that drivers make “$50,000 $82,500 a year.” See https://www.roehl.jobs/ (last visited July 13, 2017). Those amounts are in line with
the wages earned by most of Plaintiff’s self-selected “comparators” for most years. [174-1, at 35–50.]
16
(despite the Court’s request that she provide this information [173]) and Plaintiff does not
elaborate further on her decision to go to college. However, the Seventh Circuit has affirmed a
district court’s order concluding that a plaintiff was entitled to back pay while attending school.
Hanna v. Am. Motors Corp., 724 F.2d 1300 (7th Cir. 1984). In Hanna, the plaintiff was
unemployed when he enrolled in school, which he did not attend to “reap greater future
earnings” but because he “didn’t have a job * * * and it was a means of getting some money” in
the form of veterans’ benefits that he received for enrolling. Id. at 1308; see also Dailey v.
Societe Generale, 108 F.3d 451, 457 (2d Cir. 1997) (“We believe that a fact-finder may, under
certain circumstances, conclude that ‘one who chooses to attend school only when diligent
efforts to find work prove fruitless,’ satisfies his or her duty to mitigate.” (citations omitted));
Miller v. AT&T Corp., 250 F.3d 820, 839 (4th Cir. 2001) (“[T]he central question a court must
consider when deciding whether a student-claimant has mitigated [his] damages is whether an
individual’s furtherance of [his] education is inconsistent with [his] responsibility to use
reasonable diligence in finding other suitable employment.” (citation omitted)).
Unlike in Hanna, Plaintiff states that she enrolled in college “to increase her chances of”
earning a higher salary. [172, at 28–29.] Her major is listed as “Human Resource Management,
Psychology” and most of the courses she has taken to date involve accounting, management, and
economics. [174-1, at 33; 174, Ex. 12.] Moreover, she told medical counselors at the VA that
she “would like to return to school in order to pursue a degree in law.” [170-3, at 11.] This
evidence stands in contrast to the plaintiff in Hanna, who testified that “that while attending
[college] he applied for and was at all times ready, willing, and available to accept employment
comparable to that of [defendant].” Id. at 1308. Plaintiff does not offer any representation of the
sort, including whether her commitment to college would have precluded her from accepting
17
employment equivalent to her material handling job at Volvo. See Miller v. Marsh, 766 F.2d
490, 492 (11th Cir. 1985) (Plaintiff’s “time commitment as a first-year law student would
necessarily preclude her from accepting employment equivalent to her former position.”). The
more likely conclusion is Plaintiff enrolled in college to “reap greater future earnings” and “an
award of lost wages for the period in which one attends school, and thereby curtails [her] present
earning capacity in order to reap greater future earnings, constitutes a double benefit.” Id.
Accordingly, Plaintiff’s actions show that that she effectively stopped looking for comparable
work as of May 2015, and any backpay must be prorated to the first 21 weeks of 2015.
Second, Defendant contends that Plaintiff’s back pay award must be further offset
because she received GI Bill benefits while working at Schneider Trucks. [170, at 14.] Plaintiff
acknowledges that she received GI Bill benefits [167, at 17] and does not otherwise dispute that
these benefits should offset her backpay award. However, despite the Court’s supplemental
order directing Plaintiff to file evidence showing “the amount of GI Benefits that Plaintiff
received from 2011 through 2016” [173], she did not provide any such information.13 Because
Plaintiff has repeatedly failed to submit this evidence and it would be inequitable for Plaintiff to
receive a backpay award that does not deduct job-training VA benefits, the Court will estimate
these benefits for Plaintiff.
The GI bill offers apprenticeship and on-the-job-training benefits of 100 percent of the
service member’s monthly housing allowance for the first six months of the job, decreasing by
20 percent every six months thereafter, and a $1,000 books and supplies stipend.
13
See
Instead, Plaintiff filed documentation of her disability rating [174-1, at 3–5]; a letter summarizing her
disability status and entitlement to VA benefits in June 2017 (id. at 9); a form showing the amount of her
VA employer-provided healthcare for 2016 (that is, an employment benefit provided by virtue of her
work at Hines) (id. at 10), and her civilian leave and earnings statement from June 2017 (id. at 13). None
of this information provides any insight into the dollar amount of the GI benefits that Plaintiff received
between 2011 and 2016.
18
http://www.benefits.va.gov/gibill/resources/benefits_resources/rates/ch33/Ch33rates080112.asp#
MHA (last visited July 13, 2017). Because the monthly housing benefit in Hickory Hills, Illinois
is $1,956 and Plaintiff was with Schneider for roughly two years, the Court estimates that
Plaintiff received total $5,476.80 in undisclosed GI benefits, which is deduced from Plaintiff’s
back pay award.
Third, Defendant argues that Plaintiff “was not working full time at all times during her
employment,” and her backpay award should be reduced even further. [170, at 14.] Defendant’s
claim is based on the fact that Plaintiff earned less than the wages advertised on Schneider
Trucks’ website [170, at 15–16] and her VA medical progress notes refer to the fact that she
missed three weeks of work due to a suspended license, had ongoing reserve duty obligations,
and had “asked for more limited hours” at Bear Cartage after she experienced some increased
depression (id.; 170-3, at 8). The Court is not persuaded by these arguments. The fact that
Plaintiff earned less than Schneider’s advertised wages does not show that she was not trying
hard enough to be fully employed.
Nor does the fact that Plaintiff had ongoing reservist
obligations mean that she was not exercising “reasonable diligence” in seeking to maintain
sufficient earnings from Schneider—a finding that would be difficult to square with the jury’s
verdict in this case. LG Elecs. U.S.A., Inc. v. Whirlpool Corp., 790 F. Supp. 2d 708, 722 (N.D.
Ill. 2011) (“[T]he Court must take care not to contradict factual determinations that the jury
impliedly made.”). Defendant does not explain how the Court could quantify the impact of
Plaintiff’s vague request to scale back her hours at Bear Cartage, even assuming that this request
was ever honored. Thus, Defendant fails to sustain its burden to show that Plaintiff failed to
mitigate her damages by working with sufficient diligence in her post-Volvo employment.
19
In short, the Court concludes that Defendant has successfully established, in part, that
Plaintiff failed to mitigate her damages.
Taking all of this information together and as
represented in the chart below, Plaintiff’s total back pay award is $141,388.53.
Year
Base Pay
2011
$7,540.40
2012 $57,699.20
2013 $59,425.60
2014 $61,193.60
2015 $25,460.40
Total $211,319.20
3.
Shift
Differential
$754.04
$5,769.92
$5,942.56
$6,119.36
$2,546.04
$21,131.92
Overtime
Hours
0
34.7
34.7
34.7
14.1
118.2
Overtime
Pay
$0.00
$1,443.87
$1,487.24
$1,531.31
$637.19
$5,099.61
Total Other
Compensation
$0.00
-$22,530.84
-$15,521.80
-$39,444.81
-$13,187.9514
-$96,162.2015
Total Pay
$8,294.44
$42,382.15
$51,333.60
$29,399.46
$15,455.68
$141,388.53
Pre-Judgment Interest
Plaintiff requests prejudgment interest as part of her back pay award. Prejudgment
interest is presumptively available. See Shott v. Rush–Presbyterian–St. Luke’s Med. Ctr., 338
F.3d 736, 745 (7th Cir. 2003). However, “the decision whether or not to award such interest is
within the discretion of the trial court.” Taylor, 593 F.2d at 787. The decision “turns upon
whether the amount of damages is easily ascertainable.” E.E.O.C. v. Gurnee Inn Corp., 914 F.2d
815, 820 (7th Cir. 1990) (quoting Donnelly v. Yellow Freight Sys., 874 F.2d 402, 411 (7th Cir.
1989)). Plaintiff is entitled to prejudgment interest on her back pay award notwithstanding any
other damages she receives. See, e.g., Reichman v. Bonsignore, Brignati & Mazzotta P.C., 818
F.2d 278, 282 (2d Cir. 1987) (“It follows, therefore, that prejudgment interest does not provide a
double recovery to victims of age discrimination who have proven their entitlement to liquidated
damages as well as back pay.” (citation and internal quotation marks omitted)).
When calculating prejudgment interest, courts should use the prime rate. Fritcher v.
Health Care Serv. Corp., 301 F.3d 811, 820 (7th Cir. 2002). Although Plaintiff originally urged
14
Because Plaintiff effectively stopped looking for work after May 2015, the Court does not use the
unemployment benefits or CWT benefits that she received after this date as an offset.
15
This total adds in Plaintiff’s estimated $5,476.80 in undisclosed GI benefits.
20
the Court to calculate interest quarterly [167, at 19], both sides now agree that prejudgment
interest should be compounded monthly [170, at 18; 172, at 29]. The Court awards prejudgment
interest on the $141,388.53 back pay award at a rate of 3.25 percent,16 compounded monthly for
the approximately 42-month period spanning from November 8, 2011 to May 20, 2015, or
$8,546.10 in interest.17
4.
Other Employment Benefits
Plaintiff also seeks equitable relief for several other employment benefits, including
health care benefits, 401(k) contributions, pension benefits, vacation time, bonuses, profitsharing benefits, and stock options.18 The Court addresses most of these benefits separately.
Plaintiff’s computation of health care benefits covers her medical, dental, vision, accident
death and dismemberment insurance, and long-term disability insurance. [167-1, at 5.] The
parties largely agree on these calculations, although Defendant (more generously) includes basic
life insurance among these benefits and (less generously) prorates these amounts for 2011 and
2015. [170-5.] Because the Court concludes that Plaintiff’s back pay should be prorated and
seeks to make Plaintiff whole, the Court includes the amount for basic life insurance and prorates
these benefits. For owed health care benefits, the Court awards $474.75 for 2011, $5,879.49 for
2012, $6,417.93 for 2013, $6,230.54 for 2014, and $2,621.40 for 2015, or a total of $21,624.11.
16
This is the average prime rate between November 2011 and May 2015. See Board of Governors,
Federal Reserve System, Data Download Program, https://www.federalreserve.gov/datadownload/Choos
e.aspx?rel=H15 (last visited July 13, 2017) (download spreadsheet for “Bank prime loan” and “monthly”
and format package to include relevant dates).
17
Defendant does not attempt to calculate prejudgment interest, and Plaintiff does not sufficiently explain
how she arrived at her estimate of $157,812.83. [167-1, at 4.] The Court averages Plaintiff’s total
earnings of $141,388.53 over this 42 month period, which comes to $3,366.39 per month and the Court
calculates the interest payment based on the earnings as they accrued.
18
Plaintiff’s calculations do not apply prejudgment interest to these other benefits. [167, at 24; 167-1.]
The Court follows Plaintiff’s lead and excludes these benefits from its prejudgment interest calculation.
21
Nevertheless, Defendant argues that this entire health care benefit award should be
eliminated, however, because “upon information and belief, Plaintiff receives full medical care
and treatment free of charge from the VA due to her service.” [170-1, at 1 n.2.] Allegations
based on information and belief are insufficient to sustain Defendant’s burden at this stage.
Defendant presumably has records showing whether Plaintiff received medical benefits from
Volvo during her employment or whether she opted to receive her medical care from the VA. In
addition, Defendant offers no evidence about the amount of these VA benefits based on
Plaintiff’s disability rating or whether all of these benefits (including AD&D, LTD, and Basic
Life insurance) are provided at the same rate as Volvo. To the extent Defendant contends that
Plaintiff had “similar benefits through Schneider” [170, at 1], it does not provide any evidence of
those benefits or elaborate further. The Court declines to reduce Plaintiff’s health care benefits
award on these unsubstantiated arguments.
Plaintiff also seeks $61,762.00 in 401(k) contributions [167, at 24], although these
calculations are difficult follow. As best the Court can tell, this total is based on taking 10
percent of her total Volvo earnings per year (base pay plus shift differential plus overtime)
adding a figure that she claims is 75 percent of the first 6 percent of her contribution
(representing Volvo’s employer match) plus an unknown interest rate. [167-1, at 5.] Defendant
acknowledges that it matches 75 percent of an employee’s first 6 percent of income contributed
to a 401(k) account, but argues that any additional award beyond this employer-match would be
improper since Plaintiff could only have availed herself of these 401(k) benefits by contributing
those amounts to her 401(k) from her annual wages. [170, at 10.] Plaintiff does not respond to
that argument. The Court agrees that Plaintiff is not entitled to receive an additional 10 percent
of her wages as if she was not required to contribute a portion of her earnings to a 401(k)
22
account. Although Plaintiff uses the total earnings figure to calculate Volvo’s 401(k) match
[167-1, at 5], Volvo’s program matches only base pay, excluding shift differentials, overtime,
and bonuses [175, at 1]. Using Plaintiff’s base pay figures, Plaintiff is entitled to $339.32 in
2011, $2,596.46 in 2012, $2,674.15 in 2013, $2,753.71 in 2014, and $1,145.72 in 2015. Her
total 401(k) employer match is $9,509.36.19
Plaintiff seeks $12,901.41 in pension benefits for 2011 through 2016 [167, at 24], but
does not offer supporting evidence or any underlying calculations. Defendant includes pension
benefits in its backpay calculations [170, at 21–21] and breaks down this benefit by year [170-1],
but arrives at a total of $13,082.69. Neither side explains this discrepancy. Because the Court
must prorate these benefits for 2011 and 2015 too, the Court awards $181.33 in 2011, $2,307.93
in 2012, $2,377.02 in 2013, $2,447.74 in 2014, and $1,018.42 in 2015 [170-5], for a total of
$8,332.44.
Plaintiff requests “vacation time, bonuses, profit sharing, and stock options” under the
heading “other nonmonetary relief.” [167, at 22.] She offers no further information about these
benefits or a specific proposal for what “nonmonetary” relief the Court could award here.20
Defendant ignores all of these requests except profit sharing. Defendant concedes that Plaintiff
could have received $1,348.73 in 2011 and $533.97 in 2012, but no other amounts. Because
19
Defendant asks the Court to further reduce this amount based on the contention that Schneider offers a
401(k) match of up to 4% of “an employee’s earnings.” [170, at 16.] Defendant does not submit any
documentation regarding this program or explain how the match is calculated (such as whether the
program varies based on length of employment or whether total earnings are used for the calculation).
Because this argument is underdeveloped, the Court declines to reduce Plaintiff’s 401(k) employer match.
20
Plaintiff’s opening brief notes that she is “still awaiting information” about computation of bonuses or
incentives paid by Volvo between 2011 and 2016. [167-1, at 3.] In lieu of that information, Plaintiff
could have provided historical information about bonuses and incentive that she received from Defendant.
Instead, she left that information blank. Defendant asserts in response that “there has been no
Christmas/holiday bonus program for the material handlers at the Joliet facility.” [170, at 22.] Although
neither side provides any information about whether there were bonus or incentive programs available
other than the holiday bonus program, Plaintiff ignores this issue in its reply. On this record, the Court
cannot award Plaintiff any bonuses as equitable relief.
23
Defendant concedes that these amounts should be awarded, the Court awards $1,882.70 in profit
sharing. Otherwise, the Court denies this request as unsupported.
Totaling these amounts, the Court awards $41,348.61 in equitable relief for this other
employment-related compensation.
C.
Reinstatement
Plaintiff ostensibly seeks reinstatement to her old employment as a material handler at
Volvo’s Joliet facility. [167, at 12–13.] She also requests that the Court order Defendant to
provide her with eleven accommodations. Id. at 13–14. Some of those accommodations relate
to changes in her work schedule, including time-off for counseling “as needed,” the ability to
take breaks during panic attacks, and a flexible work schedule when she is tardy. Id. She
requests both the ability to use noise damping devices and audio relaxation devices. Id. She
asks for a place to meditate and relax before shifts, daily feedback from a supervisor, and “an
assigned mentor agreeable to [her].” Id. at 14. Two of her requested accommodations are that
the Court order “companywide” education regarding USERRA and “Disability Awareness” and
specific disability awareness training for all “persons who interact with [her].”
In the alternative, Plaintiff posits that “perhaps she could be transferred to an office
location to perform the work as a Human Resources Partner for Volvo” [167, at 14]—a job she
has never held at Volvo and, according to Defendant, “does not exist at the Joliet facility” [170,
at 19]. Plaintiff suggests the HR job “[t]o avoid the sudden load noises and banging that occur as
a picker/packer” and “the deleterious effects that [her old job would] have on [her] PTSD.”
[167, at 14.] According to Plaintiff, “[o]bviously, hostility and disagreement has existed among
[Plaintiff] and high Management, Human Resources Personnel, and Supervisors at [Volvo] for
years” and “[f]rustration and hostility [have] increased” over time. Id. at 15–16. Because
24
“[r]einstatement of her employment * * * might cause difficulties in many quarters” at Volvo,
Plaintiff contends that the Court could award front pay in lieu of reinstatement. Id. at 16–17.
“Reinstatement generally is favored over front pay.” Wescher v. Chem–Tech Int’l, 2016
WL 7441655, at *1 (E.D. Wis. Dec. 27, 2016).
Despite its “preferred” status, this
“discretionary” remedy “is not always appropriate” and “should not be used where the result
would be undue friction and controversy.” Downes v. Volkswagen of Am., Inc., 41 F.3d 1132,
1141 (7th Cir. 1994); McKnight v. Gen. Motors Corp., 908 F.2d 104, 115 (7th Cir. 1990). In
some circumstances, “the employer does not want the employee back” and “probably the
employee does not want to be working for this employer, and hopes to be bought out.”
McKnight, 908 F.2d at 115. “Each party will want to make life as miserable as possible for the
other party” and “[c]ourts do not want to involve themselves in the industrial equivalent of
matrimonial squabbling * * * that may last for many years.” Id. Courts may consider a “number
of factors” in exercising their discretion, “including hostility in the employment relationship and
the lack of an available position to which to reinstate the plaintiff.” Downes, 41 F.3d at 1141.
Based on these factors, Plaintiff’s reinstatement is not appropriate. First, Plaintiff readily
acknowledges the extensive acrimony between her and Defendant. [167, at 16–17.] Indeed, she
requests an alternative position as a Human Resources Partner notwithstanding the “hostility”
between her and Volvo’s HR staff. It is difficult to see how her reinstatement at Volvo would
result in anything other than the Court’s indefinite mediation of the parties’ inevitable
employment disputes. Tellingly, Plaintiff does not attempt to explain how her relationship with
Volvo is reparable. It plainly is not.
Second, the number of accommodations she requests (some of which, such as the
mandatory company-wide education or an assigned mentor subject to her approval, are (at best)
25
atypical accommodations under 42 U.S.C § 12111(9)), her proposal to be moved to HR to avoid
the “deleterious effects” of her old job, her decision to enroll in college, her HR major, and her
statements to VA medical counselors that she plans to pursue a law degree [170-3, at 11] all cast
doubt on whether Plaintiff genuinely seeks reinstatement to her old position at Volvo. Indeed,
Plaintiff does not dispute any of Defendant’s claims that she pursues reinstatement strategically.
McKnight, 908 F.2d at 116 (“If the employee desires reinstatement for strategic purposes, that is
a valid basis for denial.”). “Equity does not engage in idle gestures” and the Court will not order
Plaintiff to work as a material handler at Volvo without it being unambiguously clear that she
still wants this job. Shango v. Jurich, 681 F.2d 1091, 1105 (7th Cir. 1982).
Third, Plaintiff offers no evidence that her old job is available at the Joliet facility. See
Sheils v. Gatehouse Media, Inc., 2015 WL 6501203, at *11 (N.D. Ill. Oct. 27, 2015) (denying
reinstatement where Plaintiff “offered no evidence that [her old] position * * * is currently
available at [her former employer] or that an innocent employee would not be harmed by
[plaintiff’s] reinstatement”). Likewise, she provides no support for her argument that she could
be assigned an HR position at Volvo. For example, she does not explain whether such a position
is “equivalent in seniority, status, and pay” or the “nearest approximation” to her old job. 38
U.S.C. § 4313(a)(3). Nor does she respond to Defendant’s argument that she is unqualified for
this position and, in fact, no such job exists at the Joliet facility [170, at 19]. McKnight v. Gen.
Motors Corp., 973 F.2d 1366, 1370–71 (7th Cir. 1992) (affirming trial court’s conclusion that
reinstatement was inappropriate where plaintiff “asked for a ‘completely different job and to be
relocated in a new city’”). Accordingly, the Court declines to award reinstatement.
26
D.
Front Pay
As a substitute for reinstatement, Plaintiff requests front pay.
As noted, front pay
“represents the wages the plaintiff would have earned had she not been fired measured from the
date of the judgment to some reasonable point in the future.” Gracia, 130 F. Supp. 3d at 1255.
Said differently, front pay is “the discounted present value of the difference between the earnings
an employee would have received in his old employment and the earnings he can be expected to
receive in his present and future, and by hypothesis, inferior employment.”
Williams v.
Pharmacia, Inc., 137 F.3d 944, 953 (7th Cir. 1998) (internal alterations omitted). The award
“must be grounded in available facts, acceptable to a reasonable person and not highly
speculative.” Downes, 41 F.3d at 1142. Front pay awards often are limited in duration, and are
awarded for “a reasonable period of time, until a date by which the plaintiff, using reasonable
diligence, should have found comparable employment.” Williams, 137 F.3d at 954 (quotation
omitted); see also Biondo v. City of Chi., 382 F.3d 680, 691 (7th Cir. 2004) (“Front pay cannot
extend past the time a reasonable person needs to achieve the same or an equivalent position in
the absence of discrimination”). “The familiar common law duty of mitigating damages is
imposed: the employee must make a diligent search for comparable employment.” Mattenson v.
Baxter Healthcare Corp., 438 F.3d 763, 771 (7th Cir. 2006).
Plaintiff proposes that she should receive a front pay award representing a $90,000
annual salary for four years—$360,000 total—because she “will not achieve the same or an
equivalent position that she had prior to the termination of her employment until she acquires her
college degree which, with diligence, will take 4 years.” [172, at 30.] As discussed, this $90,000
figure is unjustifiable. In addition, Plaintiff does not offset this award based on her Hines
earnings or provide a discount rate. Williams, 137 F.3d at 954 (“Giving the employee the
27
earnings from her old job without taking account of her earnings from her new (or expected) job
would result in overcompensation.”). Based on these deficiencies and the fact that Plaintiff
failed to mitigate her damages by continuing to look for comparable work in connection with her
backpay award, Defendant urges the Court to deny Plaintiff any front pay.
The Court chooses a middle path in light of the jury’s findings. Had Plaintiff been
employed at the end of 2016, she could have received $73,056.36 in compensation.21 Based on
Plaintiff’s earnings history, her base salary and overtime rate increased by about 3 percent each
year. The Court concludes that it “should” take roughly two years of diligent searching for
Plaintiff to find and secure comparable employment.22 See Williams, 137 F.3d at 954. Had
Plaintiff been employed by Volvo those years, she would have received about $75,248.0523 in
2017 and $77,505.3224 in 2018. The Court also assumes that each year she would have earned
$31,960.75—the amount she received from Hines in 2016 (and the only year for which there is
any information). [174-1, at 1.] Subtracting those earnings, the Court estimates that Plaintiff
would have received an additional $43,287.30 in 2017 and $45,544.57 in 2018 had she remained
employed with Volvo. Using a discount rate of 3.67 (the average of the interest rates between
August 2016 and the present), the Court estimates that Plaintiff should receive the present value
of $41,754.90 for 2017 and $42,377.02 for 2018, or a total of $84,131.92 in front pay.
21
$64,937.60 in base pay, $6,493.76 in shift differential, and $1,625 in overtime.
22
In light of the six months between when Plaintiff applied to and started her employment with
Schneider, the gaps in her resume based on CWT treatment, and the efforts needed to find comparable
$70,000 a year work, the Court does not consider this relatively brief period of time unduly speculative.
See Mehringer v. Vill. of Bloomingdale, 2003 WL 21506856, at *15 (N.D. Ill. June 27, 2003) (“Although
[a front pay award is] speculative in nature, the longer the period of time for which a front pay award is
sought, the more speculative it becomes.”).
23
$66,885.73 in base pay, $6,688.57 in shift differential, and $1,673.75 in overtime (34.7 hours at $48.23
per hour).
24
$68,892.30 in base pay, $6,889.23 in shift differential, and $1,723.79 in overtime (34.7 hours at $49.68
per hour).
28
E.
Liquidated Damages Under USERRA
38 U.S.C. § 4323(d)(1)(B) provides that a court “may require the employer to
compensate the person for any loss of wages or benefits suffered by reason of such employer’s
failure to comply with” USERRA. Moreover, a court “may require the employer to pay the
person an amount equal to the amount referred to in subparagraph (B) as liquidated damages, if
the court determines that the employer’s failure to comply with the provisions of this chapter was
willful.” Id. § 4323(d)(1)(C). Here, the jury found Defendant’s violation of USERRA was
willful [161, at 3], making a liquidated damages award pursuant to Section 4323(d)(1)(C) proper.
Plaintiff argues that “should the court determine that the full amount of punitive damages
reflected in the jury’s verdict ought not be sustained, [she] requests that the Court assess
liquidated damages under USERRA by doubling the amount of any equitable relief.” [172, at 21
(emphasis added).]
Defendant argues that USERRA “does not allow for the recovery of
compensatory damages” and, indeed, the Court should not award any liquidated damages under
USERRA. [170, at 8–9.] Thus, neither side contends that the Court should count the jury’s
damages award for emotional distress and medical costs under the ADA in any liquidated
damages calculation.25 See Bello v. Vill. of Skokie, 2014 WL 4344391, at *6 (N.D. Ill. Sept. 2,
2014) (USERRA “does not authorize damages for emotional distress, but it permits recovery for
lost pay and benefits.”). Defendant also argues that any decision to award “both punitive
damages under the ADA and liquidated damages under USERRA would be duplicative” and
25
Plaintiff’s opening brief argues that “the jury award of $2,600,000 for compensatory damages is not
violative of USERRA in any way and accomplishes its goal of compensating a service member” for
USERRA violations. [167, at 9.] The jury’s ADA compensatory damages award was for “physical,
mental, and emotional pain and suffering” and the “reasonable value of medical care” [156, at 22],
whereas USERRA provides damages for “loss of wages or benefits,” 38 U.S.C. § 4323(d)(1)(B). In other
words, these ADA-damages do not overlap with damages that could be awarded under USERRA. And
(as noted) the jury was instructed not to award USERRA damages. Plaintiff cannot simply borrow this
amount for her USERRA damages when it has nothing to do with lost wages or benefits.
29
result in a double recovery. Because the compensatory damages award maxes out Section
1981a(b)(3)’s statutory cap and the Court vacates the jury’s punitive damages award, there is no
concern (to the extent this argument has merit) regarding the possibility of Plaintiff’s double
recovery for punitive damages under the ADA and liquidated damages under USERRA. See
Tomao v. Abbott Labs., Inc., 2007 WL 2225905, at *14–15 (N.D. Ill. July 31, 2007).
Therefore, the Court awards an amount equal to Plaintiff’s total equitable relief (that is,
her awards for back pay, front pay, other employment benefits, and prejudgment interest) as
liquidated damages under USERRA, which comes to $275,415.16. See also Avitia v. Metro.
Club of Chicago, Inc., 49 F.3d 1219, 1232 (7th Cir. 1995) (“Since reinstatement and double
damages are normally awarded in the same case, and front pay is a substitute for reinstatement,
there is no rule against awarding both double damages and front pay in the same case.”).
F.
Tax Component
Plaintiff requests that the Court fashion a tax component award to avoid the negative
consequences from receiving this lump-sum damages award. [167, at 21.] As in Smith, Plaintiff
cites EEOC v. Northern Star Hospitality, Inc., 777 F.3d 898, 904 (7th Cir. 2015), where the
Seventh Circuit held that district courts can issue a tax-component award to Title VII plaintiffs to
compensate them for the negative consequences of receiving lump-sum back pay awards. Smith
also explained that the Seventh Circuit cautioned “district courts to show their work if and when
they adjudge similar tax-component awards in the future,” which lead this district court to deny
the plaintiff in Smith a tax award because he “provide[d] no guidance as to how the court might
go about calculating an appropriate tax-component.” Smith, 2016 WL 5912886, at *25 (internal
quotation marks omitted).
30
Plaintiff does not do much better here. She attaches to her brief a list of numbers that she
claims represent her “employer tax liability,” her “personal tax liability increase, with the
increase in earnings at a regular tax rate[] (26.35%),” and her “personal tax liability increase
* * * at the one-time taxation rates (40.35%).” [167-1, at 6.] There is no information about the
formula or inputs she uses to derive these “computations.” Id. She does not discuss these
calculations in her opening brief and made no effort to clarify them on reply after Defendant
suggested they were “utterly unclear.” [170, at 21.] As Defendant notes, the top federal income
tax bracket is 39.6 percent (id.), and Plaintiff does not indicate how she arrived at a “one-time
taxation rate” of 40.35 percent. The same is true for the 26.35 percent tax rate, which is not a
readily identifiable tax bracket. Moreover, Plaintiff does not discuss her current tax bracket
(which would be necessary for calculating the increase from a lump-sum award), her deductions
(if any), whether her “computations” reflect state and federal taxes, and which categories of
damages she factors into her calculations. Because Plaintiff does not provide the Court with
anywhere close to sufficient information to calculate an appropriate tax-component award,
Plaintiff’s request for a tax component award is denied.
G.
Other Non-Monetary Relief
Plaintiff also seeks two forms of non-monetary equitable relief: (1) an order enjoining
Defendant “from any intentional violations of USERRA and affirmatively requiring the company
to comply with all the terms of USERRA”; and (2) notice to OFCCP of the jury’s verdict with
the aim that Defendant’s federal contractor status “should be in jeopardy now.” [167, at 22.]
Neither request is appropriate.
Plaintiff’s “obey-the-law” injunction suffers from a host of problems. First, “[a]n obeythe-law injunction departs from the traditional equitable principle that injunctions should prohibit
31
no more than the violation established in the litigation or similar conduct reasonably related to
the violation.” AutoZone, 707 F.3d at 841. Plaintiff’s request is not tailored to any specific
provisions of USERRA, types of conduct, personnel, geographic locations, or time periods.
“[T]he mere fact that a court has found that a defendant has committed an act in violation of a
statute does not justify an injunction broadly to obey the statute and thus subject the defendant to
contempt proceedings if [it] shall at any time in the future commit some new violation unlike and
unrelated to that with which [it] was originally charged.” N.L.R.B. v. Express Pub. Co., 312 U.S.
426, 435–36 (1941).
Second, Rule 65 requires injunctions to “state its terms specifically” and “describe in
reasonable detail * * * the act or acts restrained.” Fed. R. Civ. P. 65(d)(1). “An injunction
simply requiring the defendant to obey the law is too vague to satisfy the specificity
requirements of [Rule] 65(d).” Shepard v. Rangel, 2014 WL 7366662, at *20 (D. Colo. Dec. 24,
2014) (collecting cases). Plaintiff does not provide the Court with any specific language to draft
an injunction—indeed, her request for this relief is limited to a single sentence [167, at 22]—and
Plaintiff has not equipped this Court to fashion an injunction on its own. See Nuxoll ex rel.
Nuxoll v. Indian Prairie Sch. Dist. # 204, 523 F.3d 668, 675 (7th Cir. 2008) (“A litigant has a
feeble claim for a preliminary injunction when he can’t articulate what he wants enjoined[.]”);
accord AutoZone, 707 F.3d at 841–42 (collecting cases).
Third, while “the district court has broad statutory authority to fashion appropriate
remedies, including injunctive relief, for proven violations of the anti-discrimination laws,” the
Court must “assess whether the proven discriminatory conduct could possibly persist in the
future.” AutoZone, 707 F.3d at 842 (citation and internal quotation marks omitted). Plaintiff
offers no evidence “suggest[ing] that the proven illegal conduct may be resumed.” Id.
32
Fourth, while a Court may “require the employer to comply with the provisions” of
USERRA as a remedy, 38 U.S.C. § 4323, Volvo is no longer Plaintiff’s “employer.” Said
differently, an order directing Volvo to comply with USERRA would not benefit her, raising
redressability and standing concerns. See Dees v. Hyundai Motor Mfg. Ala., LLC, 605 F. Supp.
2d 1220, 1229 (M.D. Ala. 2009) (dismissing injunctive relief under USERRA); Richards v.
Canyon Cty., 2014 WL 1270665, at *4 (D. Idaho Mar. 26, 2014) (same); see also Feit v. Ward,
886 F.2d 848, 857 (7th Cir. 1989) (“[Plaintiff] seeks to bar the defendants from disciplining or
discharging employees for exercising their first amendment rights. Because [plaintiff] is no
longer an employee of the Forest Service, even if we were to grant the relief he requests, he
would not benefit from this relief.”). USERRA directs that courts should use their equity powers
“to vindicate fully the rights or benefits of persons” injured under the statute. 38 U.S.C. §
4323(e). Requiring Volvo to comply with USERRA for all other employees prospectively does
not accomplish this purpose. Her request to enjoin Volvo to comply with USERRA is denied.
Regarding the OFCCP notice request, Plaintiff fails to identify any court that has issued
such a notice. She also does not explain how such an order makes her whole. This request
appears to be little more than an attempt to exact retribution on Volvo. Defendant represents
(and Plaintiff does not dispute) that OFCCP has already investigated Plaintiff and Volvo’s
dispute and “concluded that Volvo did not violate” the law governing federal contractor
obligations with veterans. [170, at 22–22.] Neither equity nor law demands this notice.26
H.
Attorney’s Fees
A prevailing plaintiff under USERRA may receive “reasonable attorney fees, expert
witness fees, and other litigation expenses” connected with that claim. 38 U.S.C. § 4323(h)(2).
26
Plaintiff originally asked “the court to issue an injunction to Volvo, or any sub-agency, be barred from
engaging in business with the United States Federal Government for not less than a period of 3 years”
[1858, at 3], but that request does not appear in her briefs and the Court does not consider it.
33
The prevailing party in an ADA action may also receive “a reasonable attorney’s fee, including
litigation expenses, and costs” directly attributable to that claim. 42 U.S.C. § 12205. The parties
have agreed to settle their attorney’s fee dispute pursuant to Local Rule 54.3. [164, at 4.]
Following resolution of any motions seeking relief under Rule 50 and 59, the Court will enter a
briefing schedule on Plaintiff’s request for reasonable fees and costs.
IV.
Conclusion
For these reasons, Plaintiff’s request for equitable relief [167] is granted in part and
denied in part. The Court awards Plaintiff $141,388.53 in back pay, $84,131.92 in front pay,
$41,348.61 in other employment-related compensation, $8,546.10 in prejudgment interest, and
$275,415.16 in liquidated damages. Pursuant to 42 U.S.C. § 1981a(b)(3), the Court reduces the
jury’s $2.6 million compensatory damages award to $300,000 and vacates the jury’s $5.2 million
punitive damages award. All other forms of equitable relief are denied. Final judgment will be
entered in favor of Plaintiff. The parties have until August 10, 2017 to file any Rule 50 or 59
motions, responses are due September 7, 2017, and replies are due September 21, 2017.
Dated: July 13, 2017
__________________________________
Robert M. Dow, Jr.
United States District Judge
34
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