Fowler v. Westminster College of Salt Lake

Filing 262

FINDINGS OF FACT AND CONCLUSIONS OF LAW re: Lost Wages and Benefits. Signed by Judge David Nuffer on 9/25/12 (alt)

_________________________________________________________________________________
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

WILLIAM TRACY FOWLER,
FINDINGS OF FACT AND CONCLUSIONS
OF LAW RE: LOST WAGES AND
BENEFITS

Plaintiff,
v.
WESTMINSTER COLLEGE,

Case No.: 2:09-cv-00591 DN

Defendant.

District Judge David Nuffer

This matter came on regularly before the court on the 3rd day of July, 2012 at the hour of
10:00 a.m. for oral argument on Plaintiff’s claim of lost wages, consisting of front pay, back pay,
and lost benefits, tried to the court in association with Plaintiff’s claims for discrimination and
retaliation under the Americans With Disabilities Act (ADA). Plaintiff William Tracy Fowler
was present and represented by April Hollingsworth. Defendant Westminster College of Salt
Lake was represented by Robert H. Wilde. The court, having reviewed the memoranda filed and
listened to the argument of counsel in support thereof, enters the following findings of fact and
conclusions of law concerning Plaintiff’s claim for lost wages and benefits.
FINDINGS OF FACT
1.

In seeking lost wages, Plaintiff asked the court to impute annual increases of 4%

and apply that factor to any applicable lost wage claims. However, there was no actual evidence
on that percentage, only speculation, and the court declines to find such an increase applicable to
Plaintiff’s wage claims.

1

2.

Plaintiff’s annual salary at the time of his termination on November 1, 2005 was

$47,198. (Plaintiff’s Ex. No. 48.)
3.

In August 2006, Plaintiff had two accidents. He had a car accident on August 18,

2006, and he fell off his roof on August 25, 2006.
4.

Following these accidents, Plaintiff was evaluated by his physician who

submitted a document, Defendant’s Exhibit No. 64, in which he stated on the Plaintiff’s behalf
that the Plaintiff could not sit, walk or stand.
5.

In Plaintiff’s 2007 request for reconsideration relating to his application for Social

Security Disability Income, Defendant’s Exhibit Nos. 39, 46, and 70, Plaintiff referred to his
August 2006 injuries and stated, under penalty of perjury, “I am unable to walk, bend, lift” and
“unable to walk, drive, shower, take care of myself.”
6.

In a letter dated January 9, 2007, Defendant’s Exhibit No. 60, Plaintiff’s

physician stated on Plaintiff’s behalf, "I believe it would be nearly impossible for him to return
to a position where he was standing and/or walking through extended periods throughout the
workday due to the nature of these injuries."
7.

In Defendant’s Exhibit No. 90, a personal profile submitted to MetLife (the

Plaintiff’s long term disability carrier) in September, 2007, Plaintiff stated, referring to his ability
to perform, not to his job description, "With all the bending, lifting and twisting, it has made it
impossible to return to my profession." "I will never be able to return to my old profession, due
to the nature of the troubles I have with my body." Plaintiff also responded to the question "Do
you feel you could return to your last job occupation if accommodations were made?" Plaintiff
answered, "No, because of the bending, lifting[,] twisting, walking, standing or sitting. I can
never return to this sort of position due to my disabilities." These statements refer to Plaintiff’s
physical condition after August 25, 2006.
2

8.

Based on the statements of Plaintiff and his physicians, Plaintiff was no longer

physically able to do his job after August 25, 2006.
9.

Statements made by Plaintiff in documents related to his long-term disability and

Social Security Disability Income applications prior to the August 2006 accidents pertained to
his job description and his ability to perform the job description. However, consistent with these
statements, Plaintiff testified, and the jury found, that he was able to perform the essential
functions of his job with help from other of Defendant’s employees who were able to lift heavy
objects.
10.

In his employment with the Defendant, Plaintiff received non-salary benefits with

a value equal to 24% of his salary.
11.

During the 298 days from the time of his termination on November 1, 2005 to

August 25, 2006, at the annual rate of $47,198, Plaintiff would have earned salary of $38,534.25
and his benefits would be valued at $9,248.22, for a total of $47,782.47 in salary and benefits.
CONCLUSIONS OF LAW
1.

The court concludes that it is bound to follow the factual determinations of the

jury reflected in its verdict based upon the law stated in Smith v. Diffee Ford-Lincoln-Mercury,
Inc., 298 F.3d 955 (10th Cir. 2002). Consistent with Jury Instruction No. 34 (Docket No. 197)
and the jury’s response to Verdict Question No. 4 on pretext, Westminster had no valid reason
for terminating Plaintiff that would have abated back pay.
2.

Reinstatement is not appropriate in this case in part because Plaintiff was, since

August 25, 2006, physically unable to perform the job duties.
3.

The clear evidence from Plaintiff’s statements made in association with his

applications for long term disability and for Social Security Disability Income, substantiated by

3

him under oath at trial, is that after August 25, 2006, Plaintiff was no longer physically able to
do his job.
4.

Because Plaintiff was no longer physically able to do his job, he would not have

continued to receive salary and benefits from Defendant after August 25, 2006.
5.

Plaintiff asserts a “but-for” argument that Plaintiff would not have been on the

highway or on the roof in August 2006 if he had not been terminated and if he had still been
working for Defendant. However, it is a fact that Plaintiff had the accidents. Plaintiff’s physical
condition after August 25, 2006 would not allow him to do his job.
6.

Defendant asserts that judicial estoppel bars Plaintiff’s claim for back pay and

front pay based on statements made by Plaintiff and his physicians related to Plaintiff’s longterm disability and Social Security Disability Income applications. Statements made prior to the
August 2006 accidents pertained to Plaintiff’s job description and his ability to perform the job
description. These statements are consistent with Plaintiff’s testimony that he was able to
perform the essential functions of his job with help from other of Defendant’s employees who
were able to lift heavy objects, and therefore do not support a finding of estoppel. Statements
made by Plaintiff and his doctors after the August 2006 accidents clearly demonstrate that
Plaintiff was no longer able to work after August 25, 2006. Plaintiff is therefore estopped from
receiving any back pay after August 25, 2006, and from receiving an award of front pay.
7.

Defendant asserts that laches bars Plaintiff’s back pay, or should reduce the

amount of back pay that would have been earned by him during the period the matter was
pending before the Utah Antidiscrimination and Labor Division. However, the court will not
penalize Plaintiff for his litigation strategy with regard to the decision to file his charge with the
UALD, and then pull it to commence this litigation.
4

8.

Plaintiff is therefore entitled to and will be awarded back pay with benefits at the

rate he was earning as of the time he was terminated from November 1, 2005 through August 25,
2006 in the amount of $47,782.47.
9.

Plaintiff is not entitled to an award of front pay.

10.

Pursuant to Utah Code Ann. § 15-1-1, Plaintiff is entitled to prejudgment interest

on his lost wages and benefits at the statutory rate of 10% per annum, simple interest. Final
judgment in favor of Plaintiff will be entered after determination of Plaintiff’s application for
attorneys’ fees.
DATED this 25th day of September, 2012.

__________________________
David Nuffer
United States District Judge

5