Hubbard v. Jefferson County Board of County Commissioners

Filing 118

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff is granted judgment against the defendant in the amount of $7,017.90 in damages for front pay and the judgment entered on April 13, 2018 will be amended to reflect this amount. Signed by District Judge Carlos Murguia on 4/25/2018. (hl)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
Francis Hubbard,
Plaintiff,
v.

Case No. 16-cv-2444-CM

Jefferson County Board of
County Commissioners,
Defendant.

MEMORANDUM & ORDER
Plaintiff Francis Hubbard filed this lawsuit against the Board of County Commissioners
of Jefferson County, Kansas alleging that the County terminated his employment in violation of
the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and the Kansas
Age Discrimination in Employment Act (“KADEA”), K.S.A. § 44-1111 et seq. Plaintiff’s claim
was tried to a jury beginning April 9, 2018. On April 13, 2018, the jury returned a verdict in
favor of plaintiff. Specifically, the jury found that the County terminated plaintiff’s employment
based on his age; awarded plaintiff lost wages in the amount of $69,827.08; awarded plaintiff
$2000.00 in compensatory damages for emotional distress; and found that the County’s conduct
was willful. In light of the jury’s finding that the County’s discrimination against plaintiff was
willful, the court included in the judgment liquidated damages in the amount of $69,827.08. See
29 U.S.C. § 216(b) & 626(b).
While the jury was deliberating, the court held a brief evidentiary hearing concerning
plaintiff’s claim for equitable relief in the form of front pay. Front pay is “simply money

awarded for lost compensation during the period between judgment and reinstatement or in lieu
of reinstatement” to make the plaintiff whole. McInnis v. Fairfield Communities, Inc., 458 F.3d
1129, 1145 (10th Cir. 2006). The amount of front pay, if any, is within the court’s discretion.
Id. In determining whether front pay is warranted, and if so, how much, the court is to consider
the following factors:
work life expectancy, salary and benefits at the time of termination, any potential
increase in salary through regular promotions and cost of living adjustment, the
reasonable availability of other work opportunities, the period within which the
plaintiff may become re-employed with reasonable efforts, and methods to
discount any award to net present value.
Whittington v. Nordam Grp. Inc., 429 F.3d 986, 1000–01 (10th Cir. 2005). In formulating a
front-pay award the district court may consider all evidence presented at trial concerning the
individualized circumstances of both the employee and employer, but it must avoid granting the
plaintiff a windfall. Id.
In resolving plaintiff’s claim for front pay, the court is bound by the jury’s findings on
common determinations of fact. See Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955,
965 (10th Cir. 2002) (“[W]hen legal and equitable issues to be decided in the same case depend
on common determinations of fact, such questions of fact are submitted to the jury, and the court
in resolving the equitable issues is then bound by the jury’s findings on them.”); Ag Servs. of
America, Inc. v. Nielsen, 231 F.3d 726, 730 (10th Cir. 2000) (Seventh Amendment prohibits
court, in resolving equitable claims, from reaching a conclusion that is contrary to the jury’s
determination of factual issues central to the claim). By awarding plaintiff the full amount of his
claim for back pay, the jury clearly rejected the County’s mitigation defense and implicitly
found that plaintiff would not have retired from the County prior to the date of judgment and
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would have remained employed by the County at least until the date of trial.1 The court, then, is
bound by the jury’s determination that plaintiff acted reasonably in accepting his job with
Doniphan County and in rejecting the County’s “offer” to demote plaintiff to an equipment
operator position in lieu of termination and that plaintiff would have been employed by the
County at least until the date of trial.
In light of the jury’s rejection of the County’s mitigation defense and its conclusion that
plaintiff would not have retired from the County prior to the date of judgment, the court’s
resolution of the front pay claim is fairly straightforward. At the evidentiary hearing, plaintiff
asked the court for an award of $7,017.90. That request was calculated by subtracting plaintiff’s
weekly wage at his current employer ($807.89) from his weekly wage at the County ($1000) and
then taking the difference of $192.11 multiplied by approximately 37 weeks—the number of
weeks from the date of trial until the end of this calendar year, when plaintiff testified that he
intended to retire. While the County countered at the hearing that plaintiff did not mitigate his
damages, the court rejects that argument because the jury rejected that defense. The County did
not challenge plaintiff’s evidence that he intended to retire at the end of this year. Thus, in light
of the jury’s conclusion that plaintiff would have remained employed by the County at least
until the date of trial, the court finds it credible—and finds no evidence indicating otherwise—
that plaintiff would have remained employed at the County for additional 9 months beyond that

Instruction No. 18 advised the jury that it could award damages for lost wages and benefits
“through the date of your verdict or through the date you find he would have retired from his
employment with defendant, whichever date is earlier.” Instruction No. 19 advised the jury that
it could not compensate plaintiff for any portion of his damages resulting from his failure to
make reasonable efforts to reduce his damages.
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date. In sum, the court finds that the requested amount of $7,017.90 in front pay damages is
reasonable and will make plaintiff whole.

IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff is granted
judgment against the defendant in the amount of $7,017.90 in damages for front pay and the
judgment entered on April 13, 2018 will be amended to reflect this amount.

IT IS SO ORDERED.

Dated this 25th day of April, 2018, at Kansas City, Kansas.

/s/ Carlos Murguia
Hon. Carlos Murguia
United States District Judge

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