West v. Matthews International Corporation

Filing 121

MEMORANDUM AND ORDER; IT IS HEREBY ORDERED that plaintiff Gary Lee West is entitled to a judgment of a) back pay in the amount of $87,570.00; b) front pay in the amount of $103,363.50,1 representing two and onehalf calendar years from and a fter the date of the jury's verdict; c) unpaid severance pay to which plaintiff would have been entitled had he not been unlawfully terminated, based on his past employment with defendant and the period thereafter for a period of two and one-hal f calendar years after the date of the jurys verdict;2 d) prejudgment interest on the total amount (back pay, front pay, and severance pay) from the date of his termination to the date of the judgment issued herewith; e) post-judgment interest on the total amount (back pay, front pay, and severance pay) on and after the date the judgment is issued herewith at the rate prescribed by 28 U.S.C. § 1961; and f) costs. Signed by Magistrate Judge David D. Noce on 06/15/2011; (DJO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GARY LEE WEST,
Plaintiff,
v.
MATTHEWS INTERNATIONAL CORP.,
Defendant.

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No. 4:09 CV 1867 DDN

MEMORANDUM AND ORDER
This action is before the court for a determination of plaintiff’s
entitlement to either reinstatement or an award of front pay.
111.)

(Doc.

The parties have consented to the exercise of plenary authority

by the undersigned United States Magistrate Judge pursuant to 28 U.S.C.
§ 636(c).

(Doc. 7.)

A hearing was held on May 12, 2011.
I.

BACKGROUND

On October 1, 2009, plaintiff Gary Lee West commenced this action
in the Circuit Court of the City of St. Louis, alleging his previous
employer, defendant Matthews International Corporation, violated the
Missouri Human Rights Act (MHRA), Mo. Rev. Stat. § 213.010, et seq., by
considering his age as a factor in terminating his employment during a
reduction in force.

(Doc. 1.)

On November 13, 2009, defendant removed

the action to this court pursuant to 28 U.S.C. §§ 1441, 1446, based on
diversity of citizenship subject matter jurisdiction, 28 U.S.C. § 1332.
On April 7, 2011, following a four-day trial, a jury found in favor
of plaintiff and awarded him $87,570.00 in compensatory damages.
jury awarded no punitive damages.

The

The parties subsequently filed

memoranda concerning plaintiff’s entitlement to reinstatement or front
pay, and the proper amount of front pay.

(Docs. 111, 112, 114.)

II.
A.

DISCUSSION

Reinstatement or Front Pay
In his initial post-trial memorandum plaintiff sought reinstatement.

Defendant responded that it has no open positions in plaintiff’s former
department; that it has been weakened by adverse economic conditions; and
that plaintiff’s return would create “an awkward and unrewarding work
environment,” given plaintiff’s conflict with his supervisor.

In his

reply, plaintiff agrees that reinstatement is neither practical nor
feasible, and that front pay is appropriate.
“Reinstatement is the preferred remedy for unlawful employment
discrimination, and front pay is the disfavored alternative.”

Brady v.

Curators of Univ. of Missouri, 213 S.W.3d 101, 113 (Mo. Ct. App. 2006).
An award of front pay is proper when reinstatement is not feasible,
impossible, or otherwise impracticable.

Id. at 113-14.

Reinstatement

is not feasible in situations “where the employer-employee relationship
cannot be repaired,”

Gilliland v. Missouri Athletic Club, 273 S.W.3d

516, 524 (Mo. 2009) (en banc), and should not be compelled “where there
is such hostility between the parties that a productive and amicable
working relationship would be impossible.”

Denesha v. Farmers Ins.

Exch., 161 F.3d 491, 501 (8th Cir. 1998).
The court agrees that front pay is the proper award.

Although

defendant is still in business, defendant has no comparable vacant
positions to which plaintiff could be reinstated.

As a result, an

innocent employee would be displaced by reinstatement.

Reinstatement

would also cause an awkward and potentially hostile environment between
plaintiff and his supervisor.

See Ogden v. Wax Works, Inc., 29 F. Supp.

2d 1003, 1010 (N.D. Iowa 1998), aff’d 214 F.3d 999 (8th Cir. 2000).
Therefore, the court finds reinstatement impractical, and that an
award of front pay is the appropriate remedy.
B.

Front Pay
The parties have stipulated to calculations of possible front pay

awards

for

periods

of

time

until

the

agreed

approximate

plaintiff’s retirement at age 65, August 26, 2015.

date

(Doc. 120.)

of
The

parties dispute, however, the period of time plaintiff would reasonably
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be expected to actually remain employed by defendant. Plaintiff contends
he is entitled to four years and three months of front pay until his
retirement

age.

appropriate,

Defendant

and

that

an

argues
award

that

of

one

front

year

pay

of

front

through

pay

is

plaintiff’s

retirement age would circumvent plaintiff’s duty to mitigate damages and
would ignore the likelihood that plaintiff’s employment with defendant
would

have

ended

before

retirement

because

of

adverse

economic

conditions.
Front pay is “a lump sum . . . representing 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

employment.”

present

and

future,

and

by

hypothesis

Gilliland, 273 S.W.3d at 520 n.3.

inferior,

“Front pay should

address equitable needs such as the ability to obtain employment with
comparable compensation and responsibility . . . .”

EEOC v. HBE Corp.,

135 F.3d 543, 555 (8th Cir. 1998).
“In calculating front pay, the court has the discretion to consider
all the circumstances involved in determining appropriate equitable
relief.”

Denesha,

161

F.3d

at

502

(internal

quotation

omitted).

Relevant circumstances include:
(1) the plaintiff’s age; (2) the length of time the plaintiff
was employed by the defendant employer; (3) the likelihood the
employment would have continued absent the discrimination; (4)
the length of time it will take the plaintiff, using
reasonable effort, to secure comparable employment; (5) the
plaintiff’s work and life expectancy; (6) the plaintiff’s
status as an at-will-employee; (7) the length of time other
employees typically held the position lost; (8) the
plaintiff’s ability to work; (9) the plaintiff’s ability to
work for the defendant-employer; (10) the employee’s efforts
to mitigate damages; and (11) the amount of any liquidated or
punitive damage award made to the plaintiff.
Ogden, 29 F. Supp. 2d at 1014-15 (internal citations omitted); Marez v.
Saint-Gobain Containers, Inc., No. 4:09 CV 999 MLM, 2011 WL 1930706, at
*9-10 (E.D. Mo. May 18, 2011).

In determining the proper amount of front

pay, the court must be “mindful that front pay should not result in a
windfall to plaintiff.”

Marez, 2011 WL 1930706, at *10.

The plaintiff initially bears the burden of establishing the
propriety of a front pay award. Curtis v. Electronics & Space Corp., 113
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F.3d 1498, 1503-04 (8th Cir. 1997).

“[T]he burden then shifts to the

defendant to prove it is inappropriate.”

Id.

There is a presumption

that the plaintiff would have worked for the defendant until reaching
normal retirement age.

Morse v. Southern Union Co., 174 F.3d 917, 927

(8th Cir. 1999); Curtis, 113 F.3d at 1504.

The defendant bears the
Morse, 174 F.3d at 927.

burden of proffering evidence to the contrary.

After considering all relevant circumstances, the court finds an
award of two and one-half years of front pay is the “monetary equivalent
of reinstatement.”
(8th Cir. 1998).

Kramer v. Logan Cnty. Sch. Dist., 157 F.3d 620, 626
Plaintiff will reach his normal retirement age of 65

in approximately four years and three months.

Defendant has proffered

post-trial evidence that adverse economic conditions forced the closure
of

some

of

workforce.

its

manufacturing

facilities

and

the

reduction

of

its

This is consistent with the trial evidence that defendant

transferred production activities from the Kansas City plant to the St.
Louis plant.
plaintiff’s

As a result, there is a reasonable likelihood that
employment

with

defendant

would

have

ended

for

non-

discriminatory reasons before plaintiff reached his normal retirement
age.
Further, while plaintiff testified to his unsuccessful efforts
finding new employment, plaintiff has other employment experience.

He

worked as a store keeper and in assembly and production for other
manufacturers before working for defendant.

See Christensen v. Titan

Distrib., Inc., 481 F.3d 1085, 1098 (8th Cir. 2007) (“When awarding front
pay, a district court should consider the plaintiff’s ability to find new
employment with comparable compensation and responsibility.”) (internal
quotation omitted).

A front pay award of two and one-half years will

account for the probability of mitigation of future damages by reason of
his obtaining other employment.

Mathieu v. Gopher News Co., 273 F.3d

769, 782 (8th Cir. 2001); United Paperworkers Int’l Union, AFL-CIO, Local
274 v. Champion Int’l Corp., 81 F.3d 798, 805 (8th Cir. 1996).

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III.

CONCLUSION

For the reasons set forth above and consistent with the verdict of
the jury,
IT IS HEREBY ORDERED that plaintiff Gary Lee West is entitled to a
judgment of
a)

back pay in the amount of $87,570.00;

b)

front pay in the amount of $103,363.50,1 representing two and onehalf calendar years from and after the date of the jury’s verdict;

c)

unpaid severance pay to which plaintiff would have been entitled had
he not been unlawfully terminated, based on his past employment with
defendant and the period thereafter for a period of two and one-half
calendar years after the date of the jury’s verdict;2

d)

prejudgment interest on the total amount (back pay, front pay, and
severance pay) from the date of his termination to the date of the
judgment issued herewith;

e)

post-judgment interest on the total amount (back pay, front pay, and
severance pay) on and after the date the judgment is issued herewith
at the rate prescribed by 28 U.S.C. § 1961; and

f)

costs.
/S/
David D. Noce
UNITED STATES MAGISTRATE JUDGE

Signed on June 15, 2011.

1

This sum is the median between the parties’ stipulated present
values of wages for Year 2 and Year 3. See Doc. 120.
2

See Doc. 114-4.
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