Branson v. Harrah's Tunica Corporation et al

Filing 123

MEMORANDUM OPINION AND ORDER. Signed by Judge Bernice B. Donald on 06/03/11. (Donald, Bernice)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
______________________________________________________________________________
JOHN BRANSON,
Plaintiff,
v.

No.: 2:08-cv-02804

HARRAH'S TUNICA CORPORATION,
ET AL.
Defendants.

MEMORANDUM OPINION AND ORDER
______________________________________________________________________________

This matter came before the Court for a non-jury trial, which was held December 20-21,
2010. Plaintiff John Branson (“Plaintiff”) brought claims of sex discrimination under Title VII
of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e et seq. (“Title VII”), and age discrimination
under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. (“ADEA”), against
Defendants Harrah’s Entertainment, Inc. (“HET”) and Harrah’s Operating Company, Inc.
(“HOC”) (collectively “Defendants”). 1

After considering the testimony of the witnesses,

weighing the credibility of those witnesses, considering the exhibits, the applicable case law and
Rules, and the parties’ proposed findings and conclusions, the Court makes the following
findings of fact and conclusions of law.
I. FINDINGS OF FACT

1

At trial, Plaintiff waived his claim under Title VII for sexual discrimination.

1

Plaintiff began working in the casino industry in Nevada in the 1970s. He worked at
casinos in Biloxi and Vicksburg, Mississippi, before commencing work as a pit manager at the
Grand Casino (“the Grand”) in Robinsonville, Mississippi, in June 1996. 2 Plaintiff worked at the
Grand until March 16, 2007, when he resigned in lieu of being terminated. During his employ at
the Grand, Plaintiff received a promotion every few years, first from pit manager to relief
manager, then to assistant shift manager, and finally to table games shift manager in 2005. As a
table games shift manager, Plaintiff supervised up to 100 employees. Prior to the events that
resulted in his resignation, Plaintiff had never been disciplined at the Grand and had received
above-average evaluations and annual pay raises. 3
The parties dispute whether Defendants were Plaintiff’s employers when he worked at
the Grand. Plaintiff testified that BL Development (“BLD”) owned the Grand in 1996 but that
he was advised by letter in 2006 that HET and HOC had acquired Caesar’s Entertainment, Inc.
(“Caesar’s”), Caesar’s subsidiary Grand Casino’s, Inc. (“GCI”), and GCI’s subsidiary BLD,
which directly owned the Grand. Plaintiff testified that he had no further contact with BLD after
being notified that HET and HOC had acquired the Grand. Plaintiff received an HOC employee
handbook, and his 2006 and 2007 W-2s, which were admitted into evidence, list HOC as his
employer.
LinkedIn is a professional networking website. The LinkedIn profile pages of Darrell
Pilant, the Grand’s Vice President of Operations, and Tammy Young, the Human Resources
Manager, were introduced into evidence. Both Pilant and Young’s profile pages list “Harrah’s

2

Sometime within the past five years, the name of this property changed to “Harrah’s Casino and Hotel.”

3

Plaintiff’s 2003 through 2007 federal and state income tax returns show Plaintiff’s annual gross incomes as
follows: $73,869.00; $74,249.00; $78,179.00; $79,850.00; $66,466.00.

2

Entertainment” as their employer. Although Young testified that the employees at the Grand
worked for “the property,” she admitted on cross-examination that “HOC” is listed on the
Grand’s W-2 forms and its employee handbook.

Further, Pilant testified that “Harrah’s”

oversaw all of the properties where he had worked. 4
In March 2007, the Grand employed three table games shift managers, Plaintiff, Rob
Keene, and Denise Alford, each of whom reported directly to Pilant. Each of these managers
was assigned an individual computer log-in, password, and Windows account. On March 8,
2007, Plaintiff sat down to use a shared, work computer when he noticed an email from Alford to
Pilant. Alford had apparently failed to log out of her email account, and the email appeared on
the screen when Plaintiff touched the mouse. The email stated that Plaintiff and Keene were
speaking in front of Mitch Pate, a pit manager, about the performance of one of Plaintiff and
Keene’s subordinates. Plaintiff became angry because, as he maintained at trial, this statement
was untrue. 5 Approximately two hours into his shift, Plaintiff forwarded a copy of Alford’s
email first to his business email account and then to his personal email account so that he could
access the email from home.
Alford notified Pilant that Plaintiff had forwarded the email, and Pilant asked Alford to
print the email for him, which she did.

Pilant subsequently asked the IT Department to

investigate the matter and give him access to Plaintiff’s business email account, which it did. On
March 15, 2007, Pilant and Plaintiff met in private for approximately ten minutes, and, when
4

At the time of trial, Pilant was the Vice President and Assistant General Manager of Harrah’s North in Kansas
City, Missouri. In addition to the Grand, he had previously worked at Margaretteville in Biloxi, Mississippi, which
is also a Harrah’s property.
5

At trial, Alford testified that the content of the email was true. The Court finds that resolution of this fact is
immaterial to the issues before it because Defendants allege that they terminated Plaintiff solely for violating the
Grand’s computer policy. Furthermore, Pilant conceded at trial that he did not recall conducting an investigation
into the content of the email.

3

asked, Plaintiff admitted to forwarding the email to his personal account. Pilant responded that
Plaintiff had violated several policies and the trust that Pilant had placed in him. Pilant told
Plaintiff that he would think about what to do and get back with him. Pilant admitted at trial,
however, that he had made up his mind at that point to give Plaintiff the option of resigning
effective immediately or being terminated.
Later that same day, Plaintiff wrote Pilant an email explaining that Alford’s email had
upset him because it contained untrue statements. Plaintiff’s email then states, “It was a mistake
on my part to forward something from her e-mail to mine rather than just logging out and
discussing it with her and you.” On March 16, 2007, Pilant and Plaintiff met again in private.
Pilant reiterated that Plaintiff’s forwarding of the email violated company policies and the trust
that Pilant had placed in him. Plaintiff resigned in lieu of being terminated on March 16, 2007.
His termination report states that he resigned by mutual agreement and designates him “eligible
for rehire.”
Pilant testified that this action was taken because of Plaintiff’s unauthorized use of the
Grand’s computer system and because he could not trust Plaintiff after this incident. Pilant
acknowledged that Plaintiff had otherwise been a good and loyal employee and was qualified to
be a table games shift manager. He further testified that he offered Plaintiff the option of
resigning and designated him “eligible for rehire” so that it would be easier for Plaintiff to find
subsequent employment. Young approved Plaintiff’s resignation but did not converse with
Plaintiff or Pilant regarding the circumstances surrounding Plaintiff’s resignation. She testified
that when an employee commits a serious infraction, his or her termination report shows that the

4

employee is not eligible for rehire. Both Pilant and Young testified that they did not know or
care about Plaintiff’s age.
Plaintiff claims that he was forced to resign because of his age. At the time of his
resignation, Plaintiff was fifty-eight years old. He was replaced by Pate, who was in his midthirties. Pilant had inquired as to Plaintiff’s age at a meeting of supervisors approximately six
months prior to Plaintiff’s resignation.

Furthermore, Plaintiff had substantial experience

disciplining employees and was unaware of an employee who had been terminated for a first
infraction that did not involve theft or violence. In his experience, the Grand followed a four
step disciplinary process: 1) verbal warning; 2) written warning; 3) final written warning; and 4)
termination. Young also attested to this four step disciplinary process but maintained that
employees had been terminated upon a first infraction not involving theft or violence and that
disciplinary decisions were based on a variety of factors.
Evidence was also introduced regarding the policies that Plaintiff allegedly violated.
Defendants first allege that Plaintiff violated provisions of the Grand’s employee handbook,
which state that employees will “use professional judgment,” “obey all company rules,” and will
use Company e-mail . . . only for authorized business according to Computer Usage Policy.” In
addition to these general standards of conduct, Defendants cite a form entitled “Standards for use
of the Park Place Entertainment Corporation Computer System.” (“Standards for Use form”)
On March 21 and April 14, 2001, Plaintiff signed copies of this form, which mandates as
follows:
[a]ll data of any nature that are entered or received through your Company computer
including all E-mail messages are and will remain the property of the Company. None of
those data or messages may be used for any purposes not related to the business of the
Company, nor may they be sold transmitted, conveyed or communicated in any way to
5

anyone outside the Company without the express written authorization of an officially
designated Company representative.

Although Defendants submitted Plaintiff’s signed copies of the Standards for Use forms
in response to the EEOC Charge, Pilant stated that he had never signed any computer usage
document and could not recall the specific policies that Plaintiff allegedly violated. Similarly,
Alford testified that she had never seen a Standards for Use form and was unaware of these
particular standards. Alford went so far as to state that, to her knowledge, the Standards for Use
policies that Plaintiff received in 2001 were not in effect in 2007.

Finally, Plaintiff testified

without contradiction that employees did not receive training or instructions regarding the
forwarding of e-mails or use of the Grand’s computer system.
The proof also showed that employees occasionally accessed each other’s email accounts
on the shared, work computer and that such conduct was not considered a violation of company
policy. In 2006, for example, Plaintiff discovered that Alford, who at the time was an assistant
table games shift manager, was sorting through the emails of Andrew Christou, a table games
shift manager. At trial, Alford explained that she had Christou’s permission to access his email
account where a particular address list was saved. Also, in his email to Pilant after their meeting,
Plaintiff explained that he had given another employee his login and password information so
that she could email a report to the shift managers. No evidence was introduced to show that
Plaintiff suffered an adverse employment action as a result of sharing his login and password
information.
The Court heard testimony from two of Plaintiff’s co-workers at the Grand, Josie Tam
and Clinton Blayde. Tam began working at the Grand in 1996. In February 2007, Plaintiff

6

prepared a satisfactory evaluation for Tam, but Pilant directed Plaintiff to alter the evaluation to
unsatisfactory so that it would result in Tam’s termination. Plaintiff complied because he felt
like his job depended on it. Tam was subsequently placed on an action plan and then terminated
in July 2007 for allegedly failing to complete the action plan. Tam was fifty-three years old at
the time of her termination and was replaced by Chris Griffin, who was in his mid-thirties. At
trial, Pilant denied telling Plaintiff to alter Tam’s evaluation. The Court finds that Plaintiff was
the more credible witness.
Blayde was also placed on an action plan in February 2007 and terminated the following
May for allegedly failing to complete the action plan. He was fifty-two years old at the time of
his termination and was replaced by Bill Lewis, who was in his mid-thirties. As a member of
management, Blayde had experience disciplining employees.

He corroborated Plaintiff’s

testimony that the Grand only terminated employees upon a first infraction if the incident
involved theft or fighting; otherwise, the Grand employed a four step disciplinary process.
At the time of his resignation, Plaintiff was making $79,850.00 per year. Approximately
three weeks after his resignation, Plaintiff obtained employment as a floor supervisor at
Fitzgerald’s Casino (“Fitzgerald’s”). Plaintiff has had no disciplinary problems at Fitzgerald’s
and has consistently received satisfactory to above-satisfactory evaluations. His starting salary
was $40,000.00. He received raises approximately every six months, first to $45,000.00, then to
$50,000.00, and then to $55,000. At the time of trial, Plaintiff had been earning $65,000.00
since December 2008.

Plaintiff was promoted to casino administrator at Fitzgerald’s and

promoted again to his current position, assistant table games shift manager. Plaintiff testified

7

that he had submitted seven resumes for higher paying jobs. Finally, Plaintiff is in good health
and had intended to work at the Grand until age seventy-two to accumulate retirement savings.
II.

PROCEDURAL HISTORY
On July 11, 2007, Plaintiff filed a Charge of Discrimination (“Charge”) with the Equal

Employment Opportunity Commission (“EEOC”). Plaintiff received a Notice of Right to Sue
letter and on November 23, 2008 filed a Complaint in this Court alleging age discrimination in
violation of Title VII and the ADEA and seeking compensatory and punitive damages. Plaintiff
named the following five defendants: Harrah’s Tunica Corporation (“HTC”), HET, GCI, HOC,
and BLD. On July 28, 2009, the Court entered an order granting HTC and BLD’s motions to
dismiss but denying HET and HOC’s motions to dismiss. On November 16, 2009, the Court
entered an order granting GCI’s motion to dismiss. As a result, HET and HOC are the only
remaining defendants. On September 20, 2010, the Court denied Defendants’ separate but
essentially identical Motions for Summary Judgment asserting that they could not be held liable
because they were neither Plaintiff’s employer nor an integrated enterprise with Plaintiff’s
employer.
The Court held a two-day bench trial on December 20-21, 2010.

At the close of

Plaintiff’s proof, Defendants moved for judgment on partial findings pursuant to Rule 52(c) of
the Federal Rules of Civil Procedure, asserting that Plaintiff failed to establish by a
preponderance of the evidence that HET was either his employer or an integrated enterprise with
his employer and reasserted its motion for summary judgment in that regard. The Court reserved
ruling on HET’s Rule 52(c) motion and has decided those issues herein.

8

III.

CONCLUSIONS OF LAW
A.

Employer Status

The ADEA makes certain employment practices unlawful. See 29 U.S.C. §§ 621 et seq.
As a preliminary matter, a plaintiff bringing suit under the ADEA must demonstrate that the
defendant is the plaintiff’s employer. This determination focuses on whether the defendant falls
under the ADEA’s definition of “employer,” 29 U.S.C. § 630(b), and whether an employment
relationship existed between the plaintiff and the defendant. See Lilley v. BTM Corp., 958 F.2d
746, 750 (6th Cir. 1992). Under the ADEA, “[t]he term ‘employer’ means a person engaged in
industry affecting commerce who has twenty [20] or more employees for each working day in
each of twenty [20] or more calendar weeks in the current or preceding calendar year[.]” 29
U.S.C. § 630(b). The determination of whether an employment relationship existed involves an
examination of whether the alleged employer had the authority to make key management
decisions and exercised control over the manner and means of the plaintiff’s work. Sutherland v.
Mich. Dept. of Treasury, 344 F.3d 603, 612 (6th Cir. 2003). 6
Plaintiff was informed by letter in 2006 that Harrah’s had acquired the Grand. Plaintiff
was not in contact with BLD from that point forward. Accordingly, after Defendants acquired
the Grand, employees received an “HOC” employee handbook and W-2s listing HOC as their
employer. Defendants’ witnesses and employees at the Grand, Pilant and Young, considered
themselves employees of HET as evinced by their LinkedIn pages. Although Young testified
that the employees at the Grand worked for “the property,” she admitted on cross-examination
that “HOC” appears on the Grand’s W-2 forms and its employee handbook, and Pilant testified
6

Although Sutherland is a Title VII case, “the provisions of the ADEA generally receive an identical interpretation
to corresponding provisions of Title VII.” Lilley, 958 F.2d at 746.

9

that “Harrah’s” oversaw the Grand. Finally, Plaintiff testified that he supervised up to 100
employees on any given day. The Court therefore finds that Defendants meet the definition of
“employer” under the ADEA and that Plaintiff was their employee.
In so holding, the Court rejects Defendants’ argument that BLD was Plaintiff’s direct
employer and that the Court should therefore apply the analysis proffered in Swallows v. Barnes
& Noble Books Stores, Inc. for determining whether a parent corporation can be held liable for
the discriminatory acts of its subsidiary. 128 F.3d 990 (6th Cir. 1997). All of the evidence
presented at trial speaks to an employment relationship between Plaintiff and Defendants. The
fact that BLD directly owned the property where the alleged discriminatory conduct took place
does not, without more, support the conclusion that an employment relationship existed between
Plaintiff and BLD. Absent evidence to support the conclusion that an employment relationship
existed between Plaintiff and BLD, the Court concludes that application of the Swallows analysis
is inappropriate in this case.
B.

Prima Facie Case

To establish a violation of the ADEA, the plaintiff has only to prove that age was a
determining factor in the decision to terminate his or her employment. Chappell v. GTE Prod.
Corp., 803 F.2d 261, 266 (6th Cir. 1986). Plaintiff may make this showing with either direct or
circumstantial evidence. 8 Geiger v. Tower Auto., 579 F.3d 614, 620 (6th Cir. 2009) (citing
Gross v. FBL Fin. Serv., 129 S. Ct. 2343, 2351 (2009)). In cases such as this where the
8

“[D]irect evidence [of discrimination] is that evidence which, if believed, requires the conclusion that unlawful
discrimination was at least a motivating factor in the employer’s actions.” Jacklyn v. Schering-Plough Healthcare
Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999). Unlike indirect evidence, “direct evidence of discrimination
does not require a factfinder to draw any inferences in order to conclude that the challenged employment action was
motivated at least in part by prejudice against members of the protected group.” Johnson v. Kroger Co., 319 F.3d
858, 865 (6th Cir. 2003); see also Grizzell v. City of Columbus, 461 F.3d 711, 719 (6th Cir. 2006) (explaining that
direct evidence “proves the existence of a fact without requiring an inference”).

10

plaintiff’s ADEA claim is based principally on circumstantial evidence, the Sixth Circuit has
employed the framework articulated in McDonnell Douglas Corp. v. Green. 411 U.S. 792
(1973). Pursuant to that framework, the plaintiff must first establish a prima facie case. Id. at
802. Under the ADEA, proof of a prima facie case requires a showing by a preponderance of the
evidence 1) that the plaintiff was at least forty (40) years old at the time of the alleged
discrimination, 2) that he was subjected to an adverse employment action, 3) that he was
otherwise qualified for the position, and 4) that he was replaced by a younger worker. Tuttle v.
Metro. Gov’t of Nashville and Davidson Cnty., 474 F.3d 307, 317 (6th Cir. 2007); Rowan v.
Lockheed Martin Energy Sys. Inc., 360 F.3d 544, 547 (6th Cir. 2004).
Defendants concede that Plaintiff has met his prima facie case. Plaintiff was fifty-eight
years old at the time of his separation from the Grand and suffered an adverse employment
action when he was asked to resign in lieu of termination. Plaintiff had been employed in the
casino industry since the 1970s and was quickly reemployed after his resignation in essentially
the same position at Fitzgerald’s. At the time of trial, Plaintiff had worked at Fitzgerald’s for
almost four years without incident. Moreover, Pilant testified that Plaintiff was qualified for the
position of table games shift manager. Finally, Plaintiff was replaced by Mitch Pate, who was in
his mid-thirties and therefore younger than Plaintiff.
C.

Legitimate, Non-Discriminatory Reason and Pretext

Once a plaintiff establishes a prima facie case, the burden shifts to the defendant to
present a legitimate, non-discriminatory reason for the plaintiff’s termination. See Reeves v.
Sanderson Plumbing, Inc., 530 U.S. 133, 142 (2000).

The defendant “need only produce

admissible evidence which would allow the trier of fact rationally to conclude that the
11

employment decision had not been motivated by discriminatory animus.” Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 257 (1981). Defendants contend that they terminated Plaintiff
because he forwarded a work email from Alford’s account to his personal account in violation of
the Grand’s policies relating to computer use. Plaintiff admits forwarding the subject email.
Defendants have identified specific policies that encompass Plaintiff’s conduct, and Pilant
testified that he could no longer trust Plaintiff after this incident. Based on this evidence, the
Court finds that Defendants have met their burden of demonstrating a legitimate, nondiscriminatory reason for Plaintiff’s termination.
Once a defendant satisfies its burden, the burden shifts back to the plaintiff to
demonstrate that the defendant’s proffered reason for terminating the plaintiff is merely
pretextual. Id. “A plaintiff can demonstrate pretext by showing that the proffered reason (1) has
no basis in fact, (2) did not actually motivate the defendant’s challenged conduct, or (3) was
insufficient to warrant the challenged conduct.” Dews v. A.B. Dick Co., 231 F.3d 1016, 1021
(6th Cir. 2000); Tuttle, 474 F.3d at 319 (quoting Tisdale v. Fed. Express Corp., 415 F.3d 516,
529 (6th Cir. 2005)). The Sixth Circuit has held that “the reasonableness of an employer’s
decision may be considered to the extent that such an inquiry sheds light on whether the
employer’s proffered reason for the employment action was its actual motivation.” Wexler v.
White’s Fine Furniture, Inc., 317 F.3d 564, 576 (6th Cir. 2003). Plaintiff has offered proof to the
effect that Defendants’ proffered reason for his termination was merely pretext.
In the Court’s view, Pilant’s decision to terminate Plaintiff upon his first infraction in
over ten years of employment with the Grand was unreasonable and inconsistent.

Plaintiff,

Young, and Blayde testified that the Grand generally followed a four step disciplinary process,
12

and the evidence presented does not support the conclusion that Plaintiff’s conduct was serious
enough to justify deviating from this process. To the contrary, employees did not receive
training or instructions on how to use the Grand’s computer system. Neither Pilant nor Alford
appeared to be familiar at trial with the policies that Defendants cite as justification for Plaintiff’s
termination. Furthermore, the proof shows that it was not uncommon for employees to use each
other’s email accounts, and presumably each other’s passwords on the shared work computer,
without fear of suffering any disciplinary action. Moreover, Young testified that when an
employee commits a serious infraction, his or her termination report shows that the employee is
not eligible for rehire, but Pilant designated Plaintiff “eligible for rehire.” Finally, there is no
conclusive evidence that the Standards for Use that Plaintiff signed in 2001 were even in effect at
the time of his termination almost six years later.
Plaintiff also presented evidence that Defendants were actually motivated by Plaintiff’s
age. First, comments referencing age discrimination can be considered when assessing whether
an employer’s reason for terminating an employee is pretextual. See Tuttle, 473 F.3d at 320
(quoting Talley v. Bravo Pitino Rest., 61 F.3d 1241, 1248 (6th Cir. 1995)). Plaintiff testified that
Pilant asked him how old he was during a meeting of shift supervisors approximately six months
prior to Plaintiff’s forced resignation. Although Pilant denied making this statement at trial, his
credibility was undermined by inconsistencies in his testimony including his statement that he
did not work for HET, even though he listed HET as his employer on his LinkedIn profile.
Furthermore, Plaintiff testified that he prepared a satisfactory evaluation for Tam in February
2007 but that Pilant told Plaintiff to alter it so that it would result in Tam’s termination. Both
Tam and Blayde, who were members of the protected class, were placed on action plans in early
13

2007 and subsequently terminated for their alleged failure to complete their action plans.
Plaintiff, Tam, and Blayde were all replaced by younger individuals.
In short, the proof supports the conclusion that Plaintiff’s termination was not in fact
related to his conduct but was motivated by his age and the salary he earned as a combined result
of his age and tenure. The Court therefore finds that Plaintiff has proven by a preponderance of
the evidence that Defendants’ proffered reason did not actually motivate his termination and was
mere pretext for an unlawful action. Accordingly, the Court finds for Plaintiff on his age
discrimination claim.
E.

Damages
i.

Back Pay

Where a plaintiff proves that he was discharged because of his age in violation of the
ADEA, he is entitled to recover back pay lost as a proximate result of the violation. Wheeler v.
McKinley Enters., 937 F.2d 1158, 1162 (6th Cir. 1991). At the time of his termination on March
16, 2007, Plaintiff was making $79,850.00 per year or $1,535.57 per week.

He became

employed approximately three weeks later. Thus, for the period of time during which Plaintiff
was unemployed because of Defendants’ violation of the ADEA, Plaintiff is entitled to a back
pay award in the amount of $4,606.71.
Plaintiff also is entitled to back pay from the date of his re-employment until the present.
Plaintiff’s starting salary at Fitzgerald’s was $40,000.00 per year, approximately $39,850.00 less
than his salary at the time he resigned from the Grand, representing a difference in pay of
$19,925.00 over the first six month period. In his second six month period, Plaintiff earned
$45,000.00 per year, approximately $34,850.00 less than his ending salary at the Grand,
14

representing a difference in pay of $17,425.00 over that six month period. In his third six month
period, Plaintiff earned $50,000.00 per year, approximately $29,850.00 less than his ending
salary at the Grand, representing a difference in pay of $14,925.00 over that six month period. In
his fourth six month period, Plaintiff earned $55,000.00 per year, approximately $24,850.00 less
than his ending salary at the Grand, representing a difference in pay of $12,425.00.00 over that
six month period. In December 2008, Plaintiff’s salary at Fitzgerald’s increased to $65,000.00
per year, approximately $14,850.00 less than his ending salary at the Grand. Defendant’s salary
remained at $65,000 through the time of trial approximately two years later, representing a
difference in pay of $29,700.00 over that period. Based on this proof, Plaintiff is entitled to an
award of $94,400 for back pay since the date of his re-employment.
Plaintiff is therefore entitled to a total combined back pay award of $99,006.71, which
represents the period of time during which he was unemployed and the period of time since the
date of his re-employment.10
ii.

Front Pay

Front pay is an available form of equitable relief in ADEA actions. Roush v. KFC Nat.
Mgmt. Co., 10 F.3d 392, 398 (6th Cir. 1993).11 An award of front pay is guided by the
consideration of certain factors, including available employment opportunities, the employee’s
work and life expectancy, the discount tables to determine the present value of future damages,
10

Although a plaintiff has a duty to mitigate damages, a wrongdoer carries the burden of establishing that damages
were lessened or might have been lessened by the plaintiff. Jones v. Consolidated Rail Corp., 800 F.2d 590, 593-94
(6th Cir. 1986). Defendants offered no evidence tending to show that Plaintiff failed to mitigate his damages.
11

The Court recognizes that reinstatement is the presumptively favored equitable remedy in ADEA actions. Id. The
Sixth Circuit has held, however, that reinstatement is not appropriate in every case, including a case such as this
where the plaintiff has found other work. Id. Moreover, Plaintiff has not requested reinstatement, nor have
Defendants presented evidence suggesting that they have offered reinstatement or that reinstatement is a viable
remedy. See id.

15

and any other factors pertinent to prospective damages awards. Shore v. Fed. Express Corp., 777
F.2d 1155, 1160 (6th Cir. 1985). In awarding front pay, the Court does not consider future pay
raises, nor does it apply a discount rate. Jackson, 31 F.3d at 1361.
At the time of trial, Plaintiff was earning $65,000 at Fitzgerald’s, approximately
$14,850.00 less than his salary at the time he resigned from the Grand. Plaintiff was promoted to
casino administrator at Fitzgerald’s and promoted again to his current position, assistant table
games shift manager. As discussed above. Plaintiff has received periodic pay raises during his
time at Fitzgerald’s. Defendants presented no evidence that Plaintiff has intentionally limited his
income. To the contrary, Plaintiff testified that he had submitted seven resumes for higher
paying jobs. Plaintiff testified that he intended to work in his position at the Grand until age
seventy-two.
Plaintiff was fifty-eight at the time of his termination and was sixty-one at the time of
trial, which would entitle him to eleven years of front pay. Plaintiff is therefore entitled to a
front pay award in amount of $163,350.00 (11 years of front pay x $14.850.00 difference in
annual salary).
iii.

Liquidated Damages12

A plaintiff is entitled to recover liquidated damages for “willful” violation of the ADEA.
29 U.S.C. § 626(b). Liquidated damages are recoverable in an amount equal to the award of
back pay. Wheeler, 937 F.2d at 1164. The Sixth Circuit has held that “willful” violations of the

12

Plaintiff’s complaint seeks compensatory and punitive damages. (D.E. #1.) Plaintiff is not entitled to recover
punitive damages under the ADEA. See 29 U.S.C. §§ 216(b), 626(b); Ahlmeyer v. Nevada Sys. of Higher Ed., 555
F.3d 1051, 1059 (9th Cir. 2009). The Court construes Plaintiff’s claim for punitive damages as a claim for
liquidated damages. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 128 (1985) (“[L]iquidated damages
are punitive in nature.”).

16

ADEA are those that occur where “the employer knew or showed reckless disregard for the
matter of whether its conduct was prohibited by the ADEA.” Trans World Airlines, Inc., 469
U.S. at 128. In such cases, an employer may avoid a liquidated damages award by showing that
it had a good faith and reasonable basis for believing that its conduct was not in violation of the
ADEA. Id. at 128 n.22
Plaintiff testified that he was instructed to change a good performance evaluation into a
poor performance evaluation for the purpose of placing Tam on an action plan. Plaintiff, Tam,
and Blayde had all worked at the casino since it opened or shortly thereafter and were members
of the protected class. Plaintiff, Tam, and Blayde were each replaced by younger individuals.
Although Pilant and Young testified that these actions were taken without regard to age, the
Court finds that these witnesses were not credible.
The preponderance of the evidence in this case supports the conclusion that, upon
acquiring the Grand, Defendants implemented policies and procedures aimed at providing a
pretext for the termination of Plaintiff and other employees who fell within the class protected by
the ADEA. The Court finds that Plaintiff’s termination was motivated, not by his forwarding of
an email, but by his age and his salary. At a minimum, Defendants acted with reckless disregard
for whether their conduct violated the ADEA. As such, Plaintiff is entitled to recover liquidated
damages for Defendants’ willful violation of the ADEA in an amount equal to his back pay
award.
IV.

CONCLUSION
Based on the foregoing, the Court finds for Plaintiff John Branson.

It is hereby

ORDERED that Defendants pay to Plaintiff back pay in the amount of $99,006.71, front pay in
17

the amount of $163,350.00, and liquidated damages in the amount of $99,006.71. Plaintiff is
entitled to a total judgment in the amount of $361,363.42. Pursuant to 29 U.S.C. § 216(b),
Plaintiff, as the prevailing party, may file a motion with the Court for attorney’s fees and costs
supported by proper documentation within fifteen days of the entry of this order. Defendants
shall have fifteen days following the filing of Plaintiff’s motion to respond. Judgment shall be
entered accordingly.
IT IS SO ORDERED this the 3rd day of June, 2011.

s/Bernice B. Donald
BERNICE B. DONALD
UNITED STATES DISTRICT JUDGE

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