Mathews v. Butler Community College

Filing 110

MEMORANDUM AND ORDER granting in part and denying in part 103 Motion for Liquidated Damages ; granting 106 Motion for Attorney Fees. Signed by District Judge Eric F. Melgren on 3/5/2020. (cm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ROGER MATHEWS,
Plaintiff,

vs.

Case No. 17-1175-EFM

BUTLER COMMUNITY COLLEGE,
Defendant.

MEMORANDUM AND ORDER
Plaintiff Roger Mathews brought suit against Defendant Butler Community College for
age discrimination and retaliation under the Age Discrimination in Employment Act (“ADEA”)
and the Kansas Age Discrimination in Employment Act (“KADEA”). After a four-day jury trial,
the jury found Defendant liable to Plaintiff for constructive discharge and retaliation. The jury
awarded Plaintiff $298,000 for back pay and benefits and $2,000 for pain and suffering.
Plaintiff is now before the Court requesting $298,000 in liquidated damages, $195,615 in
front pay, and $254,046 in attorney fees (Docs. 103, 106). Defendant does not oppose Plaintiff’s
liquidated damages or attorney fees request. However, Defendant contends that Plaintiff should
not be granted front pay. For the reasons explained in more detail below, the Court grants in part
and denies in part Plaintiff’s Motion for Liquidated Damages and Front Pay (Doc. 103) and grants
Plaintiff’s Motion for Attorney Fees (Doc. 106).

I.

Factual and Procedural Background

Plaintiff worked for Defendant from 1980 through 2015. In 2015, Plaintiff was 64 years
old, and issues surrounding his employment began.1 In mid-June 2015, Plaintiff began consulting
with the Martin Pringle law firm in Wichita, Kansas regarding these issues.
Plaintiff filed suit against Defendant alleging age discrimination and retaliation in July
2017.

Significant written discovery occurred throughout the case.

Six depositions were

conducted. Defendant filed a Motion for Summary Judgment, which Plaintiff opposed, that was
denied. Two attempts to resolve the lawsuit through mediation also occurred.
Trial ultimately commenced on January 6, 2020, and it concluded on January 10. The jury
found in Plaintiff’s favor on his age discrimination claim, based on constructive discharge, and his
retaliation claim based on a complaint of age discrimination. They awarded $298,000 in back pay.
The jury also awarded the statutory maximum of $2,000 on Plaintiff’s pain and suffering damages
under the KADEA. In addition, the jury found that Defendant’s conduct was willful.
Post-trial, Plaintiff filed a Motion for Liquidated Damages and Front Pay. In addition,
Plaintiff filed a Motion for Attorney Fees. Defendant only opposes the award of front pay. It
argues that an award of front pay would be inappropriate because Plaintiff waived his argument
for front pay by failing to request it in the Pretrial Order, by failing to present evidence of
entitlement to it during trial, and because Plaintiff has already been made whole.

1

Further detail on the factual background of this case is set forth in this Court’s prior summary judgment
order. See Doc. 62. To the extent it is relevant to the award of liquidated damages, front pay, and attorney fees, the
Court incorporates it by reference here.

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II.

Analysis

Plaintiff seeks liquidated damages, front pay, and attorney fees. The Court will discuss
each in turn.
A.

Liquidated Damages
Plaintiff seeks $298,000 in liquidated damages. Under the ADEA, an award of liquidated

damages is required if a defendant’s conduct is found to be willful.2 A “liquidated damages award
should be equal to the award for back pay . . . .”3
Here, the jury found that Defendant’s conduct was willful. It also awarded $298,000 in
back pay. Thus, Plaintiff is entitled to an equal amount in liquidated damages of $298,000.
B.

Front Pay
Plaintiff also seeks $195,615 in front pay damages. This calculation is based on the

payment of Plaintiff’s salary of $197,685 ($65,955 per year for the next three years) minus the
amount of pay he receives from his current part-time job of approximately $2,250 ($750 per year
for three years).4 Defendant contends that Plaintiff is not entitled to any front pay, but if he is
awarded any, it should be capped at $92,000.
“ ‘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.”5 “Although

2

See 29 U.S.C. § 626(b); see also Greene v. Safeway Stores, Inc., 210 F.3d 1237, 1246 (10th Cir. 2000)
(citations omitted).
3

Blim v. W. Elec. Co., Inc., 731 F.2d 1473, 1480 (10th Cir. 1984) (superseded by statute on other grounds).

4

Testimony at trial demonstrated that Plaintiff began teaching part-time after his employment ended with
Defendant but only earned approximately $2,000 to $3,000 over the past four years.
5
McInnis v. Fairfield Communities, 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).

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front pay may be appropriate when reinstatement is not possible, it is not a mandatory remedy.”6
It is within the Court’s discretion as to the amount, if any, to be awarded.7
The following facts are relevant in assessing such an award:
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.
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.8
A plaintiff is not required to present evidence of front pay through expert testimony.9 The
evidence, however, must be sufficient to support an award.10
In this case, both parties agree that reinstatement is not a feasible option. Defendant,
however, contends that Plaintiff is not entitled to front pay for three reasons. It states that (1)
Plaintiff waived his argument for front pay by failing to request it in the Pretrial Order; (2) Plaintiff
has already been made whole; and (3) Plaintiff failed to present evidence of entitlement to it during
trial.
As to Defendant’s contention that Plaintiff waived his argument for a front pay award, the
Court disagrees. Defendant states that front pay is the alternative to reinstatement, and Plaintiff

6

McInerney v. United Air Lines, Inc., 463 F. App’x 709, 725 (10th Cir. 2011) (citation omitted).

7

Id.

8

McInnis, 458 F.3d at 1146 (citation omitted).

9

Womack v. Delaware Highlands AL Services Provider, LLC, 2012 WL 13029498, at *7 (D. Kan. 2012)
(citations omitted).
10

Id.

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never requested reinstatement in the Pretrial Order. However, Plaintiff’s damages calculation in
the Pretrial Order stated that he sought “lost salary (to anticipated age of retirement).” This
statement encompasses future damages or the possibility of front pay. Furthermore, in the Pretrial
Order, Defendant’s assertion of the defense that Plaintiff was not entitled to recovery of front pay
demonstrates Defendant’s notice of the possibility of front pay. Finally, Defendant’s Motion in
Limine addressed front pay and asserted that Plaintiff should not be able to request liquidated
damages for future wages or future fringe benefits.11
Defendant also asserts that Plaintiff is not entitled to front pay because Plaintiff has already
been made whole. During trial, Plaintiff requested approximately $265,000 in back pay and an
unspecified amount in fringe benefits. The jury awarded $298,000 for wage and benefit damages.
Thus, Defendant asserts that Plaintiff received an award that made him whole. In addition,
Defendant contends that if you add the $298,000 that Plaintiff will receive in liquidated damages,
Plaintiff will receive more than two times as much as he requested at trial. Accordingly, Defendant
contends that Plaintiff should not receive front pay.
Plaintiff, however, could not request liquidated damages at trial because it was not an issue
for the jury. Thus, Plaintiff could not ask for a specific dollar amount in trial but instead could
only seek the jury’s finding of whether Defendant’s actions were willful.

In addition,

reinstatement and front pay are not issues for the jury. Instead, it is an equitable issue to be decided
by the Court.12 Finally, the ADEA allows for recovery of back pay, front pay, and liquidated

11

Defendant has an additional contention that Plaintiff’s damages should be capped due to an amount
requested in the Pretrial Order. The Court will address this argument when discussing the sufficiency and amount of
Plaintiff’s damages set forth at trial.
12

See McInnis, 458 F.3d at 1145-46 (citation omitted).

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damages.13 Thus, the Court will not take the limited view that Plaintiff has already been made
whole due to Plaintiff’s evidence at trial of damages for back pay or that Plaintiff is also receiving
liquidated damages.
Finally, Defendant argues that Plaintiff did not present sufficient evidence at trial of his
future wage loss. It contends that Plaintiff had discussed retirement far before he took it and that
the evidence showed that Plaintiff may have retired at any time. The problem with this argument
is that Plaintiff did not retire. The jury made the finding that Plaintiff was constructively
discharged and retaliated against for filing an age discrimination complaint. Thus, Plaintiff’s end
of employment with Defendant cannot be categorized as voluntary or the date at which he would
have retired. Furthermore, Plaintiff’s inquiry regarding retirement benefits prior to his termination
does not demonstrate the date or timeframe in which Plaintiff intended to retire.
“[A]n award of future damages in lieu of reinstatement furthers the remedial purposes of
the ADEA by assuring that the aggrieved party is returned as nearly as possible to the economic
situation he would have enjoyed but for the defendant’s illegal conduct.”14 Plaintiff specifically
testified that he would not have retired until his mid-seventies. In addition, Plaintiff presented
evidence that he continues to work part-time at a place in which he could find employment. The
evidence also showed that at the time of Plaintiff’s constructive discharge, he was 65 years old and
making $65,955 a year. Thus, there was sufficient evidence presented at trial to demonstrate future
wage loss.

13
The Court recognizes that the award of liquidated damages may be a factor in determining the amount and
whether front pay is appropriate. See Price v. Marshall Erdman & Associates, Inc., 966 F.2d 320, 326 (7th Cir. 1992)
(noting that the presence or absence of liquidated damages may play a small role in the determination of the entitlement
to front pay).
14

EEOC v. Prudential Fed. Sav. & Loan Ass’n, 763 F.2d 1166, 1173 (10th Cir. 1985).

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The only remaining question is the appropriate amount of front pay damages. As noted
above, Plaintiff testified that he would not have retired until his mid-seventies. He does not seek
front pay for that amount of time but rather for three years, totaling $195,615. Defendant objects
to the amount and contends that Plaintiff’s amount should be capped at $92,000 due to the Pretrial
Order. The Pretrial Order included a graph of damages. In the column related to “Lost salary (to
anticipated age of retirement),” the amount listed was $390,000. Defendant contends that because
Plaintiff already received $298,000 in damages (related to back pay), he is only entitled to an
additional $92,000 in damages (for front pay) to equal his lost salary.
Front pay is an attempt to make a plaintiff whole, but it is not intended to grant a windfall.15
Plaintiff has already been awarded approximately four years’ worth of back pay. To award
Plaintiff an additional three years of front pay would be granting him seven years’ worth of
compensatory damages in salary. Furthermore, Plaintiff’s damages calculation in the Pretrial
Order for lost salary to the anticipated age of retirement was $390,000. Plaintiff has already been
awarded $298,000. Thus, the Court, in its discretion, caps the lost salary damage amount at
$390,000—the amount in the Pretrial Order. Accordingly, the Court grants Plaintiff a front pay
award of $92,000.16
C.

Attorney Fees
Plaintiff seeks $254,046 in attorney fees. Defendant has agreed and stipulated that the

attorney fees requested by Plaintiff are fair, reasonable, and necessary to properly prosecute the
matter.

15

Whittington v. Nordam Group Inc., 429 F.3d 986, 1001 (10th Cir. 2005) (citation omitted).

16

The Court notes that this equals an additional one and one-half years’ worth of pay.

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The ADEA requires an award of reasonable attorney’s fees and costs to the prevailing
party.17 Plaintiff must demonstrate that he is the prevailing party and that the requested fees are
reasonable.18 A reasonable fee is determined by calculating a “lodestar amount” which is done by
multiplying the number of hours reasonably spent by a reasonable hourly rate.19 The party
requesting the fee “bears the burden of establishing entitlement to an award and documenting the
appropriate hours expended and hourly rates.”20
Here, Plaintiff is the prevailing party. In addition, the attorney fee request is reasonable.
Plaintiff attaches several exhibits to his motion containing billing records and an affidavit from
one of his counsel. The hours expended on the case, 938 for two attorneys, a paralegal, and a
paralegal assistant, are reasonable considering the length of time the case was litigated and the
four-day jury trial. Furthermore, the hourly rate for the partner, senior associate, paralegal, and
paralegal assistant are in proportion to the billing rates in the Wichita, Kansas area. Thus, the
Court finds that the attorney fee request in the amount of $254,046 is reasonable and grants
Plaintiff’s motion.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Liquidated Damages and
Front Pay (Doc. 103) is GRANTED IN PART AND DENIED IN PART. Plaintiff is awarded
$298,000 in liquidated damages. Plaintiff is awarded $92,000 in front pay.

17
29 U.S.C. § 626(b) (referencing 29 U.S.C. § 216(b)); see also Dalal v. Alliant Techsystems, Inc., 182 F.3d
757, 760 (10th Cir. 1999) (“By reference to the Fair Labor Standards Act (29 U.S.C. § 216(b)), the ADEA requires
the award of reasonable attorney’s fees and costs to a prevailing party.”).
18

Latin v. Bellio Trucking, Inc., 720 F. App’x 908, 910 (10th Cir. 2017).

19

Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1249 (10th Cir. 1998).

20

Id. (citation omitted).

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IT IS FURTHER ORDERED that Plaintiff’s Motion for Attorney Fees (Doc. 106) is
GRANTED. Attorney’s fees are granted in the amount of $254,046.
IT IS SO ORDERED.
Dated this 5th day of March, 2020.

ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE

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