Hale v. Emporia State University et al

Filing 160

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED THAT the court will defer ruling on Ms. Hale's economic damages. The parties will participate in an evidentiary hearing on a date to be determined. To facilitate planning and scheduling for that hea ring, the court sets a Telephone Conference for 12/17/2019 at 01:30 PM CST before District Judge Daniel D. Crabtree. The parties should dial into the CONFERENCE LINE at 1-888-363-4749 and enter ACCESS CODE 8354715 to join the call. Signed by District Judge Daniel D. Crabtree on 12/09/2019. (mig)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ANGELICA HALE,
Plaintiff,
Case No. 16-4182-DDC
v.
EMPORIA STATE UNIVERSITY,
Defendant.

MEMORANDUM AND ORDER
This matter is before the court on pro se plaintiff Angelica Hale’s Brief Regarding
Economic Damages (Doc. 150). Defendant Emporia State University (“ESU”) has responded
(Doc. 153).
I.

Background
On July 16, 2019, the court entered a Memorandum and Order finding for Ms. Hale on

her Title VII retaliation claim (Doc. 149-1). The court awarded Ms. Hale nominal damages of
$1 because the court lacked sufficient evidence to determine the appropriate relief.1 Doc. 149-1
at 23. The court directed the parties to submit briefing on front pay, reinstatement, and back pay.
Id.

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The court already has found that Ms. Hale cannot recover compensatory damages because she did
not establish any evidence from which the court could fashion a non-speculative award. Doc. 149-1 at 19.
The court also found that punitive damages were unwarranted because plaintiff never established that
ESU failed to make good-faith efforts to comply with Title VII. Id. at 21. Since Ms. Hale represented
herself at trial, she cannot recover attorneys’ fees. Id. at 22–23. Thus, the only remaining damages issues
for the court to decide are back pay, reinstatement, and front pay. Id. at 21–22.

II.

Discussion
Title VII permits the court to award a successful plaintiff any appropriate relief, including

reinstatement, back pay, “‘or any other equitable relief’” that the court deems appropriate.
Daneshvar v. Graphic Tech., Inc., 40 F. Supp. 2d 1225, 1239 (D. Kan. 1998) (quoting 42 U.S.C.
§ 2000e–5(g)). “District courts possess considerable discretion to devise appropriate remedies
for Title VII violations.” Zisumbo v. Ogden Reg’l Med. Ctr., 801 F.3d 1185, 1203 (10th Cir.
2015) (citations omitted). But, the record must support the district court’s damages award.
Davoll v. Webb, 194 F.3d 1116, 1145 (10th Cir. 1999). For reasons explained below, the court
defers ruling on Ms. Hale’s request for economic damages and orders an evidentiary hearing on
the front pay and back pay awards.
A. Back pay
Back pay awards generally cover the time up until the date of judgment. Daneshvar, 40
F. Supp. 2d at 1239 (citing Daniel v. Loveridge, 32 F.3d 1472, 1477 (10th Cir. 1994)). But,
plaintiff has an obligation to use reasonable methods to mitigate her damages. Id. (citing 42
U.S.C. § 2000e–5(g)(1)). “This mitigation usually takes the form of replacement employment.”
Leidel v. Ameripride Servs., Inc., 276 F. Supp. 2d 1138, 1142 (D. Kan. 2003) (citing 42 U.S.C. §
2000e–5(g)(1)). The employer shoulders the burden of showing a lack of reasonable diligence.
Id. (citing EEOC v. Sandia Corp., 639 F.2d 600, 627 (10th Cir. 1980)). The employer can meet
its burden by showing, “‘(1) that the damage suffered by plaintiff could have been avoided, i.e.,
that there were suitable positions which plaintiff could have discovered and for which [s]he was
qualified; and (2) that plaintiff failed to use reasonable care and diligence in seeking such a
position.’” Id. (quoting Sandia, 639 F.2d at 627).

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Ms. Hale requests back pay of $362,077.06, plus interest. Doc. 150 at 9. She bases her
calculation on her projected salary—had ESU employed her as marketing coordinator—from
2015 to 2019. Doc. 150-1 at 30. She asserts that ESU had promised her the position for one
year, at an annual salary of $56,100. Id. She then applied a 34% increase to the salary to
account for benefits, bringing the total amount for the first year to $84,900. Id. For the next year
(the 2016-17 academic year), she calculated a total amount of $86,173.50, based on a projected
1.5% annual raise. Id. She predicts that she would have completed her bachelor’s degree after
two years, raising her total compensation to $94,790.85 for the 2017-18 academic year. Id.
Finally, she projects compensation of $96,212.71 in 2018-19. Id.
ESU argues there is no evidence in the record supporting Ms. Hale’s assumptions and
calculations. Doc. 153 at 3. The only evidence in the record, ESU argues, are copies of Ms.
Hale’s three temporary appointments. Id. at 4. Ms. Hale’s third temporary appointment was for
a period of 10 weeks at a total salary of $8,888.90. Id. She resigned three weeks before the end
of that appointment. Id. So, ESU concedes, Ms. Hale could claim $2,6667.67 as back pay for
those three weeks. Id. ESU asserts that otherwise, the record contains no evidence supporting a
back pay award of $362,077.06. Id. at 3.
The court agrees with ESU. No evidence in the record supports Ms. Hale’s calculations.
It is true that Ms. Hale’s brief asserts ESU had promised her the marketing coordinator position
at an annual salary of $56,100. But that assertion is not evidence. Also, her calculations assume
that she would have received that salary and remained in the position until now, completed her
bachelor’s degree, and received periodic raises.
ESU contends that the evidence shows Ms. Hale has failed to mitigate her back pay
damages. Exhibit A shows Ms. Hale’s email inbox containing job-related emails, but provides

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no information about what jobs Ms. Hale actually applied for, or the result of those job
applications. Doc. 150-1 at 2–15. Ms. Hale’s conclusory assertions that she was unemployable
from 2015 to present—and that she is thus entitled to a salary, benefits, and raises she might
have earned at ESU—doesn’t provide any evidence to support findings justifying back pay.
Ms. Hale did not request an evidentiary hearing on the matter.2 But, since the court
cannot award back pay without evidence on Ms. Hale’s claimed damages and her mitigation
efforts, the court reserves its ruling. And, the court orders an evidentiary hearing on the matter.
B. Front pay
Front pay “‘is simply money awarded for lost compensation during the period between
judgment and reinstatement or in lieu of reinstatement.’” McInnis v. Fairfield Cmty., Inc., 458
F.3d 1129, 1145 (10th Cir. 2006) (quoting Abuan v. Level 3 Commc’n, Inc., 353 F.3d 1158, 1176
(10th Cir. 2003)). “Front pay is an equitable remedy awarded by the court (not the jury).”
Whittington v. Nordam Grp. Inc., 429 F.3d 986, 1000 (10th Cir. 2005) (citing Denison v. Swaco
Geolograph Co., 941 F.2d 1416, 1425–27 (10th Cir. 1991)). Reinstatement and front pay are
mutually exclusive, and, while reinstatement is preferred, the court may choose front pay due to
the level of animosity between the parties. Daneshvar, 40 F. Supp. 2d at 1240–41. “The amount
[of front pay], if any, is set in the court’s discretion[.]” Whittington, 429 F.3d at 1000. As the
Tenth Circuit has explained,
Numerous factors are relevant in assessing front pay including 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.

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The court informed the parties that either could request a hearing on its briefing. Neither party
did so. Doc. 149-1 at 22.

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Id. at 1000–01 (quoting Davoll, 194 F.3d at 1144); Carter v. Sedgwick Cty., Kan., 929 F.2d
1501, 1505 (10th Cir. 1991) (determining front pay must be based on “more than mere
guesswork”). But, the court has considerable discretion to fashion a front pay award, because
such an award requires the court “‘to predict future events and consider many complicated and
interlocking factors . . . .’” Whittington, 429 F.3d at 1001 (quoting Mason v. Okla. Turnpike
Auth., 115 F.3d 1442, 1458 (10th Cir. 1997)). The court may consider all the evidence presented
about the “individualized circumstances” of the plaintiff and defendant, but it “‘must avoid
granting the plaintiff a windfall.’” Id. (quoting Mason, 115 F.3d at 1458).
Here, the parties agree that reinstatement is not a viable option. Doc. 150 at 9; Doc. 153
at 3. So, the court considers whether front pay is appropriate. Ms. Hale requests
$1,363,724.42—covering twelve years—in front pay. Doc. 150-1 at 30. She alleges that she has
“diligently sought employment” since leaving ESU in 2015. Doc. 150 at 2. But, she has not yet
secured a full-time job. Id. She states that by rescinding the job posting intended for her, ESU
has “effectively doomed” her employment opportunities. Id. at 4. Ms. Hale’s calculations are
based on her projected salary as marketing coordinator at ESU, and predictions that she would
have completed her bachelor’s and master’s degrees, had an annual 1.5% raise, and retired at age
70. Doc. 150-1 at 30.
Ms. Hale provides several exhibits to support her arguments. Exhibit A is titled “Jobs
Applied to by Angelica Hale Since July 2015.” Doc. 150-1 at 1. The exhibit appears to be a
screenshot of a folder in an email account showing pages of emails (in listed form but not
showing the contents), which Ms. Hale says documents her efforts to find full-time employment.
Doc. 150 at 2–3. Ms. Hale cites Exhibits B–D as examples of the negative publicity that

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allegedly has rendered her unemployable. Doc. 150-1 at 16–28; Doc. 150 at 3. Finally, Exhibit
E contains Ms. Hale’s front and back pay calculations. Doc. 150-1 at 30.
ESU asserts that the court should deny Ms. Hale’s request for front pay. Doc. 153 at 4–5.
ESU argues there is no evidence in the record to support the Tenth Circuit’s front pay factors
discussed above (i.e., work life expectancy, salary and benefits at the time of termination,
potential increases in salary, availability of other work opportunities, reemployment
opportunities, and discount methods to net present value). Id. at 4. So, ESU argues, the court
should not award a front pay award because it will be speculative and produce a windfall to Ms.
Hale. Doc. 153 at 4–5 (citing McInerney v. United Air Lines, Inc., 463 F. App’x 709, 726 (10th
Cir. 2011)).
The court again agrees with ESU. No evidence in the record supports Ms. Hale’s front
pay request. Ms. Hale asserts that ESU has “doomed” her employment opportunities, and that
she is now permanently unemployable. But, she does not present evidence addressing the Tenth
Circuit’s front pay factors. See Whittington, 429 F.3d at 1000–01 (10th Cir. 2005) (articulating
the relevant factors in assessing a front pay award). Consequently, awarding Ms. Hale front pay
on the current record would amount to “mere guesswork.” Carter, 929 F.2d at 1505. The court
thus orders the parties to participate in an evidentiary hearing on both the back and front pay
issues.
III.

Conclusion
The district court has considerable discretion to devise appropriate remedies for Title VII

violations. But, it must base those remedies on evidence in the record. Ms. Hale has not
presented evidence sufficient for the court to award her back and front pay. So, the court

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reserves its ruling. And the court orders the parties to participate in an evidentiary hearing on the
back pay and front pay awards.
IT IS THEREFORE ORDERED THAT the court will defer ruling on Ms. Hale’s
economic damages. And the parties will participate in an evidentiary hearing on a date to be
determined. To facilitate planning and scheduling for that hearing, the court sets a telephone
conference for Tuesday, December 17, 2019 at 1:30 PM.
IT IS SO ORDERED.
Dated this 9th day of December, 2019, at Kansas City, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

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