Miller et al v. Board of Regents of the University of Minnesota
Filing
615
ORDER granting in part and denying in part 601 Motion for Reinstatement or Front Pay. IT IS HEREBY ORDERED THAT: 1. Plaintiff's motion for reinstatement or front pay 601 is GRANTED IN PART and DENIED IN PART. 2. Plaintiff shall recover from defendant the total sum of $4,206,110, consisting of (1) $461,278 in front pay and future benefits; (2) $ 744,832 in back pay and past benefits; and (3) $3,000,000 in other past damages. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion) Signed by Judge Patrick J. Schiltz on 2/13/2019. (CLG)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
SHANNON MILLER,
Case No. 15‐CV‐3740 (PJS/LIB)
Plaintiff,
v.
ORDER
THE BOARD OF REGENTS OF THE
UNIVERSITY OF MINNESOTA,
Defendant.
Sharon L. Van Dyck, Donald Chance Mark, Jr., and Andrew T. James, FAFINSKI
MARK & JOHNSON, P.A.; Dan Siegel and Jane Brunner, SEIGEL, YEE &
BRUNNER, for plaintiff.
Jeanette M. Bazis and Katherine M. Swenson, GREENE ESPEL PLLP; Douglas R.
Peterson and Timothy J. Pramas, UNIVERSITY OF MINNESOTA, for defendant.
In 1998, plaintiff Shannon Miller was hired as the head coach of the women’s
hockey team at defendant University of Minnesota Duluth (“UMD”). After the team
struggled, Miller was told that her contract would not be renewed following the 2014‐
2015 school year. Miller sued UMD, asserting claims of sex discrimination under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and retaliation under
Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (as well as other
claims, which were dismissed). A jury found that UMD had discriminated and
retaliated against Miller and awarded her $744,832 in back pay and benefits and
$3,000,000 in other past damages.
This matter is before the Court on Miller’s motion for reinstatement or, in the
alternative, front pay on her Title IX claim. (Miller is not entitled to reinstatement or
front pay on her Title VII claim.1) For the reasons that follow, the Court grants Miller’s
motion in part. The Court will not order UMD to reinstate Miller, but will order UMD
to pay front pay and future benefits in the amount of $461,278.2
A. Standard of Review
“The choice between the two equitable remedies of reinstatement and front pay
clearly belongs to the court.” Newhouse v. McCormick & Co., 110 F.3d 635, 643 (8th Cir.
1997). Reinstatement is the preferred remedy. Olivares v. Brentwood Indus., 822 F.3d 426,
429 (8th Cir. 2016) (“The equitable remedy of reinstatement should be the norm when
practicable and possible.” (citation and quotation marks omitted)). If the court elects to
1
With respect to Miller’s Title VII claim, the jury found that, while Miller’s sex
was a motivating factor in UMD’s decision not to offer her a new contract, UMD would
have made the same decision regardless of her sex. ECF No. 569. As a result, Miller is
not entitled to reinstatement or damages on her Title VII claim. 42 U.S.C.
§ 2000e–5(g)(2)(B); Desert Palace, Inc. v. Costa, 539 U.S. 90, 94‐95 (2003).
Although Miller is thus seeking reinstatement or front pay solely with respect to
her Title IX claim, the parties in their briefing have relied on cases arising under
Title VII and other employment laws. The Court follows suit.
2
In entering judgment, the Court must accept the jury’s determinations regarding
liability, back pay, past benefits, and other past damages. UMD will undoubtedly file
post‐judgment motions to challenge some of the jury’s determinations, and the Court
will then decide whether to uphold those determinations.
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award front pay in lieu of reinstatement, the amount of front pay is also for the court to
determine. Newhouse, 110 F.3d at 643.
Although reinstatement and front pay are for the Court to determine, the Court
is bound by the jury’s findings on issues that were properly submitted to it and may not
reject or contradict those findings in making a determination as to reinstatement or
front pay. Olivares, 822 F.3d at 430; Salitros v. Chrysler Corp., 306 F.3d 562, 573 (8th Cir.
2002).
B. Reinstatement
As noted, reinstatement is the preferred remedy. Indeed, front pay “should only
be awarded in lieu of reinstatement when extraordinary circumstances render
reinstatement ‘impractical or impossible.’” Mathieu v. Gopher News Co., 273 F.3d 769,
778 (8th Cir. 2001) (quoting Newhouse, 110 F.3d at 641)). Among the circumstances that
render reinstatement impractical or impossible are the lack of an available position.
Olivares, 822 F.3d at 429 (“Reinstatement may however not be possible when there are
no comparable positions available.”); see also Selgas v. Am. Airlines, Inc., 104 F.3d 9, 12
(1st Cir. 1997) (front pay is an alternative remedy if reinstatement is not available
because the position is occupied); Roush v. KFC Nat’l Mgmt. Co., 10 F.3d 392, 398 (6th
Cir. 1993) (reinstatement is not appropriate when it “would require displacement of a
non‐culpable employee”); EEOC v. Century Broad. Corp., 957 F.2d 1446, 1463 (7th Cir.
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1992) (“reinstatement can reasonably be denied when someone else currently occupies
the employee’s former position” (citation and quotations omitted)).
After declining to offer Miller a new contract, UMD hired Maura Crowell to
replace Miller as the head coach of the women’s hockey team, and Crowell remains in
that position. Trial Tr. 365‐66, 704‐06. Neither party contends that there are any
comparable positions at UMD to which Miller could be reinstated. For that reason
alone, reinstatement is impractical in this case.
In addition, given the unusual nature of Miller’s former position, reinstatement
would be much more disruptive than reinstatement in the more typical case involving,
say, a factory worker or a flight attendant. Head coaches normally are entitled to hire
their own staff, see, e.g., Trial Tr. 706‐07, 1006‐07, and UMD follows this practice, Trial
Tr. 248‐49, 339‐40. Reinstating Miller would thus cause not only Crowell to lose her job,
but also the members of Crowell’s staff, even though all of them are innocent
bystanders. In addition, there was ample testimony at trial that player recruitment
depends heavily on the identity of the head coach and that uncertainty regarding the
coach’s tenure can hurt recruiting. Trial Tr. 77, 103‐05, 118‐21, 172. Crowell is now in
her fourth season at UMD, and thus many of the current players were recruited by
Crowell and expected that they would be coached by Crowell. Given the substantial
disruption that a change in coaches would cause at this point—and given the
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substantial hardship that such a change would inflict on Crowell, her staff, and her
players—reinstating Miller is highly impractical. Cf. Kucia v. Se. Ark. Cmty. Action Corp.,
284 F.3d 944, 949 (8th Cir. 2002) (equitable remedies “should depend on the state of facts
existing at the time the remedy is either granted or denied”).
For these reasons, the Court will not order UMD to reinstate Miller.
C. Front Pay
“An equitable award of front pay is generally appropriate when reinstatement
must be denied.” United Paperworkers Int’l Union, AFL‐CIO v. Champion Int’l Corp., 81
F.3d 798, 805 (8th Cir. 1996). The plaintiff must prove a basis for a front‐pay award,
after which the burden shifts to the defendant to disprove the plaintiff’s prima facie
case. Olivares, 822 F.3d at 430; Curtis v. Elec. & Space Corp., 113 F.3d 1498, 1503 (8th Cir.
1997).
In determining the amount of front pay, courts consider such factors as (1) the
plaintiff’s age; (2) the length of the plaintiff’s employment with the defendant; (3) the
likelihood that the plaintiff’s employment would have continued absent the unlawful
conduct; (4) the length of time it will take the plaintiff to secure comparable
employment; (5) the plaintiff’s work and life expectancy; (6) whether the plaintiff was
an at‐will employee; (7) the length of time other employees typically hold the position;
and (8) the plaintiff’s ability to work. Ogden v. Wax Works, Inc., 29 F. Supp. 2d 1003,
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1014‐15 (N.D. Iowa 1998), aff’d, 214 F.3d 999 (8th Cir. 2000), and cited in Dollar v.
Smithway Motor Xpress, Inc., 710 F.3d 798, 810 (8th Cir. 2013). Because front‐pay awards
depend on predictions, they are necessarily somewhat speculative and “metaphysical
certainty” is not required. Dollar, 710 F.3d at 809.
1. Prima Facie Case
Miller, who is currently 55 years old, see Cobb Decl. ¶ 6, requests a front‐pay
award in the range of $1,799,000 to $2,941,000. The lower figure represents front pay
minus an optimistic amount of mitigation up to age 67, when Miller would be eligible
for full Social Security benefits; the higher figure represents front pay minus a
pessimistic amount of mitigation up to age 70, when Miller intends to retire. Included
in the mitigation calculation are deductions for Miller’s salary as head coach of the
Calgary Inferno women’s professional hockey team, a position that she obtained in
June 2018.3 Miller Decl. ¶¶ 3‐4.
UMD argues that Miller failed to establish a prima facie case for front pay
because she did not produce documentary evidence of her salary with the Inferno.
3
UMD has submitted a newspaper article reporting that Miller quit her position
with the Inferno in December 2018. ECF No. 613. Miller objects to the consideration of
this article. ECF No. 614. At this point, Miller’s position with the Inferno is relevant
only to the extent that her salary must be deducted from any front pay award. As the
award sought by Miller assumes that she will be paid her full salary—and as Miller has
not asked the Court to reduce the offset in light of her apparent resignation from the
Inferno—the Court sees no reason to address the matter further.
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Miller has since produced her contract, which confirms that her salary is $30,000 for the
2018‐2019 season. See ECF No. 609 at 5, 7. The Court therefore rejects UMD’s argument
that Miller has failed to offer a prima facie case for front pay.
2. Failure to Mitigate
UMD next argues that Miller has failed to mitigate her damages. As a
preliminary matter, the Court rejects UMD’s argument that the Court is free to
determine for itself whether Miller’s pre‐verdict mitigation efforts were sufficient. The
jury was instructed that if Miller failed to mitigate her damages, then the jury should
reduce the amount of her back pay commensurately. ECF No. 577 at 8. Armed with
these instructions, the jury awarded Miller the full amount of her back‐pay request.
Compare Trial Tr. 1852 (closing argument asking for $744,832) with ECF No. 569 at 3
(awarding $744,832). As juries are presumed to follow their instructions, United States v.
Smith, 910 F.3d 1047, 1053 (8th Cir. 2018), the jury must necessarily have found that
Miller met her duty to mitigate her damages up to the date of the verdict. The Court is
not free to disregard this finding. Olivares, 822 F.3d at 430; Salitros, 306 F.3d at 573.
The cases UMD cites are not to the contrary. In Moysis v. DTG Datanet, the
Eighth Circuit affirmed the district court’s conclusion that, in light of the plaintiff’s
current employment and back‐pay and compensatory awards, awarding front pay
would confer a windfall. 278 F.3d 819, 829 (8th Cir. 2002). But the plaintiff did not
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contend that the denial of front pay was in any way inconsistent with the jury’s
findings, and the Eighth Circuit therefore had no occasion to address the issue.
In Kucia v. Southeast Arkansas Community Action Corp., the district court awarded
front pay, but failed to explain why reinstatement was impractical or impossible. 284
F.3d 944, 949 (8th Cir. 2002). The Eighth Circuit remanded the case for the district court
to address the issue and noted that, because equitable remedies “depend on the state of
facts existing at the time the remedy is either granted or denied,” the district court could
take additional evidence. Kucia does not stand for the proposition that the district court
is free to disregard the jury’s implicit findings.
Finally, in Excel Corp. v. Bosley, the plaintiff argued that the denial of front pay
was inconsistent with the jury’s back‐pay award. 165 F.3d 635, 640 (8th Cir. 1999). The
Eighth Circuit stated that “while the district court is not free to reject the jury’s findings,
the determination of front pay should be made after considering all of the
circumstances regarding the claimant’s employment situation that are relevant to the
issue of front pay.” Id. In light of the paucity of evidence regarding the plaintiff’s
efforts to find additional work and the amount of time that had passed since the verdict,
the Eighth Circuit rejected the argument that the denial of front pay was inconsistent
with the verdict. Id. at 639‐40. In other words, Excel Corp. reaffirmed that district courts
are bound by the jury’s findings and simply held that, in light of the circumstances
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existing at the time of the front‐pay determination, it was not an abuse of discretion for
the district court to deny front pay. The Court will therefore limit its inquiry to Miller’s
post‐verdict mitigation efforts.
“A party harmed by a discriminatory employment decision is subject to an
affirmative duty to mitigate his damages by reasonably seeking and accepting other
suitable employment.” Mathieu, 273 F.3d at 783. A plaintiff is required to exercise
reasonable diligence, but the duty “is not onerous and does not require success . . . .”
Denesha v. Farmers Ins. Exch., 161 F.3d 491, 502 (8th Cir. 1998) (citation and quotation
marks omitted). Nor is the plaintiff required to “go into another line of work, accept a
demotion, or take a demeaning position.” Townsend v. Bayer Corp., 774 F.3d 446, 466
(8th Cir. 2014) (citation and quotation marks omitted). “All that is required by law is an
honest, good faith effort.” Brooks v. Woodline Motor Freight, Inc., 852 F.2d 1061, 1065 (8th
Cir. 1988). UMD bears the burden of proving that Miller has failed to mitigate.
Townsend, 774 F.3d at 466.
In April, May, and June of 2018, Miller applied for twelve positions. Miller Decl.
Ex. 1. As noted, she accepted an offer to be the head coach for the Calgary Inferno in
June 2018. Miller Decl. ¶ 4. Although it was a part‐time position and Miller was not
contractually precluded from other employment, Miller Decl. ¶ 4, ECF No. 609 at 8,
Miller was required to relocate to Calgary and could not perform her duties remotely,
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Miller Decl. ¶ 5, effectively precluding her from accepting another suitable coaching
position while with the Inferno. In addition, Miller worked “nonstop—morning, noon,
and night,” to recruit new players; through these efforts, Miller hoped to receive
another contract. Miller Decl. ¶ 6.
UMD contends that Miller’s efforts were insufficient because she did not apply
for numerous other positions that opened after the trial concluded. The Court
disagrees. The job market for Miller is narrow and highly specialized: head coach of a
professional hockey team (men’s or women’s) or a Division I college hockey team
(men’s or women’s). But UMD identifies a wide array of jobs outside of this market,
including jobs in compliance (for which Miller lacks the appropriate background and
skills, Second Miller Decl. ¶ 6(d)), head‐coaching positions at Division II and III schools,
and assistant‐coaching positions. A position as the head coach of a Division II or III
team—or as an assistant coach at any level—would be a demotion. The law does not
require Miller to accept a demotion. Moreover, as Miller attests, if she accepted a
demotion, she would be less likely to receive an offer to coach a professional or
Division I team. Second Miller Decl. ¶¶ 6(a), (d), 8(f). In addition, many of the jobs that
UMD identifies either were not publicly posted or became available only after Miller
had already accepted the position with the Inferno. Second Miller Decl. ¶¶ 8‐10.
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Miller limited her job search to geographic areas where she would be willing to
live. Second Miller Decl. ¶ 6(c). She acted within her rights; as a general rule, the duty
to mitigate does not require a plaintiff to relocate.4 Indeed, it is possible that UMD’s
failure to identify a suitable position that would not require Miller to move is fatal to its
argument that Miller failed to mitigate. Miller does not make this argument, however,
and the Court need not address it. Suffice it to say that it is not reasonable to demand
that Miller be ready and willing to move anywhere in the world where there might be
an open position. The law entitles Miller to exercise some discretion regarding the
locations to which she is willing to move.
For these reasons, the Court finds that Miller has made reasonable efforts to
mitigate following the jury’s verdict.
4
See Canny v. Dr. Pepper/Seven‐Up Bottling Grp., 439 F.3d 894, 905 (8th Cir. 2006)
(defendant failed to meet its burden to show failure to mitigate where, among other
things, its offer of reinstatement would have required plaintiff to relocate); Arlington
Hotel Co. v. NLRB, 876 F.2d 678, 680 (8th Cir. 1989) (“Here, AHC did not show the
number of substantially equivalent positions in the Hot Springs area for which Avant
could have applied. Thus, the record does not support AHC’s contention that Avant’s
efforts to find employment before March 1982 were deficient.” (emphasis added));
Coleman v. City of Omaha, 714 F.2d 804, 808 (8th Cir. 1983) (evidence of police‐chief
positions in other Nebraska towns was not by itself sufficient to meet defendant’s
burden to show failure to mitigate; “Coleman cannot be required to move from his
home ‘in order to reduce damages caused by the [defendant’s] unlawful acts.’” (quoting
Hegler v. Bd. of Educ., 447 F.2d 1078, 1081 (8th Cir. 1971)); Jackson v. Wheatley Sch. Dist.
No. 28, 464 F.2d 411, 413‐14 (8th Cir. 1972) (“[T]he burden is on the Board of Education
to prove that [the plaintiff] could have obtained employment as a teacher in or near the
community where the family lived.”).
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3. Amount of Front Pay
Finally, UMD argues that Miller’s calculation of front pay is overly speculative
and unreasonable, largely because she seeks front pay through retirement (at either age
67 or age 70) and because her expert’s calculations assume an unrealistically low level of
future earnings. Specifically, Miller contends that, had she not been terminated, she
would have remained the head women’s hockey coach at UMD for an additional 12 to
15 years past the date of the verdict, for a total of 15 to 18 years beyond the date of her
termination. Cobb Decl. ¶ 7. She also assumes that she will earn around $30,000 per
year until 2022‐2023, when she proposes that she will begin to earn either $60,000 (at the
low end) or $140,000 (at the high end), with annual increases of 3 percent after that.
Cobb Decl. ¶¶ 13‐14.
The Court generally agrees with UMD that Miller’s front‐pay request is inflated
and excessive. To begin with, although Miller has not yet had much success in
matching her previous earnings, it is not reasonable to assume that she will never do so.
There was ample evidence at trial that Miller is an outstanding hockey coach—arguably
one of the most successful college hockey coaches of all time. Trial Tr. 284‐85, 481. She
is also a well‐educated, driven, and energetic individual with strong leadership skills.
Before becoming a hockey coach, Miller was a police officer for ten years. Trial Tr. 892.
After being terminated by UMD, she and her partner moved to Palm Springs and
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started a pedal‐pub business. Trial Tr. 994, 1281. Given the breadth of Miller’s skills
and experiences, the Court agrees that it is unrealistic to assume that she will remain
underemployed for the remainder of her working life.
More importantly, it is wildly speculative to assume that Miller would have
remained employed as the head women’s hockey coach at UMD for 12 to 15 years past
the date of the verdict—that is, for a total of almost 35 years. Miller argues that front
pay through retirement is appropriate in a case involving an older plaintiff who is close
to retirement and who has had difficulty mitigating her damages. But by her own
admission, Miller is not close to retirement. As UMD points out, Miller was the head
women’s hockey coach at UMD for 17 years, and she is seeking a combined total of back
and front pay equal to 15 to 18 years. In other words, Miller herself is asserting that she
was only about halfway through her expected tenure at UMD when she was
terminated.
In addition, Miller was employed as the head coach of a Division I team sport—a
notoriously precarious position in which individuals rarely enjoy tenures of 30 years or
more. On top of that, Miller was one of the highest paid Division I women’s hockey
coaches in the country. Trial Tr. 70. UMD understandably had very high expectations
for Miller’s performance—performance that would depend on numerous variables,
only some of which were within Miller’s control.
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Miller cites several cases in which the plaintiff was awarded front pay through
retirement. But as a highly compensated, high‐profile figure who worked under
individually negotiated contracts, Miller is not comparable to the low‐level employees
in those cases, all of whom were awarded front pay for a shorter period than Miller is
seeking. See, e.g., Salitros, 306 F.3d at 570‐74 (affirming seven years of front pay through
retirement for disabled warehouse worker); Mathieu, 273 F.3d at 779 (affirming eight
years of front pay for delivery manager who had worked for the company for 34 years);
Newhouse, 110 F.3d at 639, 642‐43 (affirming front pay through normal retirement age
for failure to rehire 61‐ year‐old salesman who had previously worked for the company
for 23 years); Hukkanen v. Int’l Union of Operating Eng’rs, 3 F.3d 281, 285‐86 (8th Cir.
1993) (affirming ten years of front pay for secretary who was constructively
discharged); cf. United Paperworkers Int’l Union, 81 F.3d at 805 (remanding for new trial
on liability and expressing “grave doubt” that an award of 24 years of front pay
through retirement for power‐plant worker could be upheld).
While the Court declines to award front pay through retirement, the Court does
not agree with UMD that the jury’s back‐pay award is sufficient by itself to compensate
Miller for lost wages and benefits. At the time of her termination, Miller was seeking a
two‐year contract extension, Def. Trial Ex. 54, and she had told UMD that after coaching
for two additional years, she wanted to take a year off and then do something else with
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her life, Trial Tr. 1092‐93. UMD argues that this evidence demonstrates that Miller
intended to coach for only two more years. At trial, however, Miller characterized her
statements as a negotiating ploy that she adopted in light of UMD’s apparent reluctance
to offer her a new contract. Trial Tr. 993. Miller testified that she thought that UMD
would be more comfortable with a two‐year extension and that this would give her a
chance to improve the team and put her in a strong position for the next round of
negotiations. Trial Tr. 993‐94. The jury found that, but for UMD’s unlawful retaliation,
Miller would have been employed at UMD on the date of the verdict, which would put
her past the two‐year contract extension she was seeking. In other words, the jury
seems to have credited Miller’s contention that she intended to stay at UMD longer than
two years.
In light of the jury’s finding, the Court determines that front pay through
June 2020 is a reasonable award. This represents a total of five years of pay past the end
of Miller’s last contract. Notably, in her request for reinstatement, Miller argues for a
five‐year contract. ECF No. 602 at 6. And a total of five additional years would have
given the parties ample time to evaluate Miller’s performance.
Beyond that timeframe, however, the Court cannot reasonably find that Miller
would have remained employed by UMD. Although Miller may not have been sincere
when she told UMD that she intended to retire from coaching in two years, she did
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make that representation to UMD. That representation would undoubtedly have
caused UMD to question Miller’s commitment to the job—and that, in turn, would have
made it less likely that UMD would have locked itself into a long‐term contract with
her. Setting that aside, there are simply too many unknowable variables that would
have affected Miller’s continued employment. To remain employed, she would have
had to win—and she would have had to win a lot, given her very high salary. No one
can know with any degree of confidence whether Miller would have been able to
achieve the kind of success necessary to remain employed at UMD beyond 2020.
With respect to the amount of front pay, the Court finds that Miller’s calculation
of her losses through June 2020 is reasonable. UMD contends that Miller’s assumed rate
of pay increase is too large and that Miller’s assumed amount of estimated mitigation is
too small. Were the Court awarding front pay for a longer period, it might be inclined
to agree, as any errors would have a large compounding effect. Under the
circumstances, however, and given the uncertainty that is inherent in determining front
pay, the Court will adopt Miller’s proposed salaries and mitigation reductions for the
2018‐2019 and 2019‐2020 academic years. The Court therefore awards front pay in the
amount of $414,713 and future benefits in the amount of $46,565, for a total award of
$461,278. See Cobb Decl. ¶¶ 15, 17.
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ORDER
Based on the foregoing, the jury’s verdict, and all of the files, records, and
proceedings herein, IT IS HEREBY ORDERED THAT:
1.
Plaintiff’s motion for reinstatement or front pay [ECF No. 601] is
GRANTED IN PART and DENIED IN PART.
2.
Plaintiff shall recover from defendant the total sum of $4,206,110,
consisting of (1) $461,278 in front pay and future benefits; (2) $ 744,832 in
back pay and past benefits; and (3) $3,000,000 in other past damages.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: February 13, 2019
s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge
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