U.S. Equal Employment Opportunity Commission v. Consol Energy, Inc. et al
Filing
162
MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS 80 MOTION IN LIMINE,GRANTING PLAINTIFFS 133 MOTION FOR PERMANENT INJUNCTION,AND AWARDING BACK PAY AND FRONT PAY DAMAGES. Pursuant to Federal Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr on 8/21/2015. (Copy counsel of reocord)(jmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff,
v.
Civil Action No. 1:13CV215
(STAMP)
CONSOL ENERGY, INC. and
CONSOLIDATION COAL COMPANY,
Defendant.
MEMORANDUM OPINION AND ORDER
DENYING DEFENDANTS’ MOTION IN LIMINE,
GRANTING PLAINTIFF’S MOTION FOR PERMANENT INJUNCTION,
AND AWARDING BACK PAY AND FRONT PAY DAMAGES
I.
Procedural History
This action was filed by the plaintiff, the United States
Equal Employment Commission (“EEOC”), pursuant to Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
In the
complaint, EEOC seeks a permanent injunction and monetary relief
for the charging party, Beverly R. Butcher, Jr. (“Butcher”).
EEOC
alleges that the defendants, Consol Energy, Inc. (“Consol Energy”)
and
Consolidation
Coal
Company
(“CCC”)
(collectively,
“the
defendants”), instituted practices that denied Butcher a religious
accommodation.
Prior to trial, both parties filed motions in limine. One of
those motions, defendants’ motion in limine to exclude evidence of
lost
pension
benefits,
is
still
pending.
After
the
trial
concluded, a verdict in favor of EEOC was entered and the jury
assigned only compensatory damages. Based on this Court’s previous
ruling, the jury did not assign an award for other damages.
This Court then entered an order establishing a briefing
schedule regarding back pay, front pay, and other damages on behalf
of
Butcher.
injunction.
Thereafter,
EEOC
filed
a
motion
for
permanent
The parties submitted briefs on these issues and this
Court then heard oral argument and received evidence concerning
those issues.
After this hearing, this Court ordered the parties
to complete supplemental briefing.
This Court is now prepared to review post-trial damages, the
defendants’ motion in limine, and EEOC’s motion for permanent
injunction.
For the reasons that follow, this Court finds that the
defendants’ motion in limine is DENIED and the EEOC’s motion for
permanent injunction is GRANTED.
Further, this Court will set out
its ruling on the remaining damages to be awarded in this action.
II.
A.
Discussion
Monetary Damages
Awarding back pay is a discretionary function of a trial court
and must be made in consideration of Title VII’s objectives of
deterrence and making the claimant whole.
Albemarle Paper Co., et
al. v. Moody, et al., 422 U.S. 405, 418-20 (1975);
Martin v.
Cavalier Hotel Corp., 48 F.3d 1343, 1358 (4th Cir. 1995).
It is
also within this Court’s discretion to allow a plaintiff to seek
2
front pay or reinstatement.
Doyne v. Union Electric Company, 953
F.2d 447, 448 (8th Cir. 1992).
Thus, this Court must determine if
front pay should be awarded and the amount of front pay to be
awarded.
Id. (citing Duke v. Uniroyal, Inc., 928 F.2d 1413, 1424
(4th Cir. 1991).
such awards.
1.
Id. at 451; Albemarle, 422 U.S. at 421.
The Collateral Source Rule
a.
EEOC
receiving
The principles of mitigation and equity apply to
Arguments of the Parties
argues
are
that
the
collateral,
pension
not
used
benefits
for
a
that
Butcher
is
determination
of
mitigation, and are not interim earnings that reduce back pay or
front pay.
Further, EEOC contends that because these payments are
not paid directly from and entirely by the employer, the payment
from a third-party source, the United Mine Workers of America
(“UMWA”) Pension Fund, cannot be used in the back pay or front pay
calculation.
Additionally, EEOC contends that the payments are
made based on years of service in the coal industry not just for
years of service with a certain employer.
Thus, EEOC asserts that
the pension benefits are payments, bargained for by the UMWA, for
work
Butcher
has
already
performed
in
the
past,
and
not
as
indemnification for the employer.
The defendants argue that Butcher has not made contributions
to the pension plan, the pension plan is totally employer funded,
and is only administered by a third-party, and thus it is a non-
3
collateral source.
The defendants cite a United States Court of
Appeals for the Fourth Circuit case, Fariss v. Lynchburg Foundry,
769 F.2d 958 (4th Cir. 1985), to support their argument that
Butcher’s pension benefits should be considered a non-collateral
source. The defendants contend that if a setoff is denied, Butcher
will receive a windfall, especially since he failed to seek
employment in the coal mining industry because he was receiving
pension benefits.
Moreover, the defendants argue that EEOC cannot
lay claim to lost benefits between 2012 and 2017 with its claim
that Butcher is entitled to those lost benefits in the future as
well.
The defendants contend that EEOC cannot claim future lost
pension benefits for the same reason as it cannot claim them for
back pay, the benefits are non-collateral.
These same arguments
are forwarded by the defendants in the remaining motion in limine.
The defendants further request in their motion in limine that
this Court exclude any evidence that Butcher experienced any lost
pension benefits as a result of his retirement in August 2012.
Further, the defendants move to exclude any testimony of EEOC’s
expert witness Dr. Sovan Tun, Ph.D. (“Tun”).
As background, the
defendants aver that Butcher began receiving a monthly pension
amount of $2,357.00 in September 2012 and if he had worked until
2017 he would have received $2,704.00 a month.
Tun issued an
expert report regarding lost wages which does not incorporate an
offset of pension benefits.
The defendants’ expert, Dr. Homayoun
4
Hajiran, Ph.D. (“Hajiran”), stated in his report that Butcher will
not sustain a loss of pension benefits because he retired in 2012
but will actually receive a surplus of $67,530.00.
Thus, the
defendants argue that Tun’s testimony would lead Butcher to receive
a double recovery because it does not incorporate an offset.
In response, EEOC provides Tun’s testimony regarding: (1) back
pay for the period of August 10, 2012 to the present; (2) front pay
in the form of lost wages for the period of January 2015 until
Butcher’s planned retirement date of July 31, 2017; and (3) front
pay in the form of lost future pension value during the period of
July 31, 2017 until the end of Butcher’s life expectancy; and (4)
supplemental pension benefits.
EEOC argues that the pension
benefits that Butcher is receiving are collateral, for the same
reasons
as
addressed
above.
Further,
EEOC
argues
that
the
defendants are not contesting the relevancy of Tun’s report but the
accuracy and thus it should not be excluded.
b.
Applicable Law: Collateral Source - Generally
“The collateral source rule holds that ‘compensation from a
collateral source should be disregarded in assessing [ ] damages.’”
Sloas v. CSX Transp. Inc., 616 F.3d 380, 389 (4th Cir. 2010)
(internal citation omitted).
Under the collateral source rule, an
“employer-tortfeasor is not entitled to mitigate damages by setting
off compensation received by the employee from an independent
source . . . .
The source of the funds may be determined to be
5
collateral or independent, even though the employer-tortfeasor
supplies such funds.”
Haughton v. Blackships, Inc., 462 F.2d 788,
790 (5th Cir. 1972) (citing United States v. Price, 288 F.2d 448
(4th Cir. 1961); see Sloas, 616 F.3d at 390.
Thus, importance
should be placed on “the character of the benefit received and what
such benefits were designed to do.” Haughton, 462 F.2d at 790; see
also Sloas, 616 F.3d at 390; Price, 288 F.2d at 450-51.
If the
fund from which the employee is drawing compensation is not
provided to be used for liability coverage but, instead, is “in
effect part of the employee’s income for services rendered[,]” that
fund is a collateral source.
Haughton, 462 F.2d at 791; see also
Sloas, 616 F.3d at 390; Price, 288 F.2d at 451.
Accordingly, the
main question is whether the benefit paid for by the tortfeasor was
intended to respond to potential future legal liability.
Sloas,
616 F.3d at 390; Phillips v. Western co. of N. America, 953 F.2d
923, 932 (5th Cir. 1992).
The United States Court of Appeals for the Fifth Circuit has
applied a five prong analysis: (1) Does or has the employee made
any contribution to the funding of the payment?; (2) Does the
benefit plan arise as the result of a collective bargaining
agreement?; (3) Does the plan and the payments cover both workrelated and non-work-related injuries?; (4) Are payments from the
plan contingent upon the employee’s length of service?; and (5)
Does the plan contain specific language contemplating a set-off of
6
benefits received under the plan against a court judgment? Id.
If
the answer is “yes” to all of those questions but the last, then
the
court
should
find
collateral source.
that
Id.
the
source
of
the
payment
is
a
This analysis, although from another
circuit, will be informative for this Court in applying the Fourth
Circuit’s “character of the benefit” rule.
c.
This
The Pension Benefits are a Collateral Source
Court
finds
that
Butcher’s
pension
benefits
are
a
collateral source. The evidence provided by the parties shows that
the
pension
fund
is
contributed
to
by
different
employers,
including the defendants, who have entered collective bargaining
agreements
with
the
UMWA.
The
UMWA,
a
third-party,
then
distributes those funds to the retirees. The amount of the pension
provided is based on years of employment in the coal industry at
UMWA mines for work that has been completed by a certain employee.
There has been no evidence that the fund is meant to be used
as an indemnifying fund for potential litigation that is not in an
employer’s favor.
Further, there has been no evidence that the
applicable collective bargaining agreement contains a provision
contemplating a set-off of benefits received in a case such as the
one at hand.
In applying all of these findings to the factors
cited above and Fourth Circuit precedent, this Court finds that the
pension benefits are collateral and thus should not be offset.
7
This finding takes into consideration the Fariss case that was
cited by the defendants. First, Fariss instructs that “[a] payment
made entirely by the employer directly to the employee is not a
‘collateral benefit’ . . . .”
Fariss, 769 F.2d at 968 n. 10.
Here, the pension benefits that Butcher receives are not those paid
entirely by the defendants and are not directly made to Butcher.
Rather, the pension benefits Butcher receives were made by the
defendants because Butcher was employed in a UMWA mine for most of
his career in the mining industry and the defendants were parties
to a UMWA collective bargaining agreement.
If Butcher had started
working at another UMWA mine, under the collective bargaining
agreement, he would have received the same pension benefits upon
retiring.
Further, the benefits are not paid directly by the
defendants
but
are
distributed
by
the
UMWA
underlying collective bargaining agreement.
pursuant
to
the
Thus, applying the
rule in Fariss, the benefits that Butcher has received and is
receiving are a collateral source.
Second, this Court has cited Sloas, a case decided by the
Fourth Circuit in 2010.
As this case was decided after Fariss,
this Court has given its holdings more deference given that a later
decided case generally takes precedent.
In sum, this Court finds
that the defendants’ reliance on Fariss does not dissuade this
Court from its finding that the pension benefits are collateral.
8
d.
Supplemental Pension Benefits
At the evidentiary hearing and in Tun’s April 2015 report,
EEOC asserted a claim for supplemental pension benefits on top of
the pension benefits discussed above.
EEOC stipulated at the June
18, 2015 evidentiary hearing that it had previously not included
these benefits in its calculations. The defendants objected to the
use of such calculations in this Court’s award of damages.
These
benefits
are
provided
for
under
the
collateral
bargaining agreement similar to the pension benefits discussed
above. ECF No. 158-13 at 265-73. Further, these benefits are paid
by the employer based on an employee’s election to have money taken
out of his wage payments.
elect
to
have
Id.
contributed
Moreover, how much an employee may
by
employee’s length of service.
the
Id.
employer
is
based
on
the
These payments are paid into a
trustee savings plan that is administered by the UMWA and the
trustees of the savings plan.
Id.
First, this Court finds that the defendants were given enough
notice to not be prejudiced by the addition of the claim for
supplemental pension benefits.
Tun’s report was made available
prior to the evidentiary hearing.
Further, the complaint in this
action did not specifically state what back pay or front pay it
would be seeking and thus EEOC did not forego an opportunity to
seek the supplemental pension benefits.
9
Next, this Court finds that the supplemental pension benefits
are collateral.
The supplemental pension benefits are based on
Butcher’s length of employment and are paid based on work completed
by Butcher. Additionally, although paid by the employer, the funds
come from the wages that would have been otherwise paid to Butcher.
These funds are also administered to Butcher by a third-party.
Finally, these funds are contributed pursuant to a collective
bargaining agreement, there is no indication that the collective
bargaining agreement requires a setoff, and the funds are not meant
to be used as indemnification for any adverse judgment against the
employer.
All of these factors weigh in favor of finding that the
supplemental pension benefits are a collateral source of funds.
Accordingly, this Court will not offset those payments.
e.
Motion in Limine
As this Court has found that the pension benefits are a
collateral source, it must deny the defendants’ motion in limine.
The defendants’ motion in limine requests that this Court not
consider Tun’s report and testimony because he did not setoff the
pension benefits.
However, given this Court’s finding above, Tun
was correct in not reducing the damages award based on Butcher’s
pension benefits and thus his report is relevant to a determination
of damages in this action. Moreover, the use of such a calculation
would not result in a windfall judgment for Butcher.
defendants’ motion in limine is denied.
10
Thus, the
2.
Mitigation
a.
Arguments of the Parties
EEOC argues that front pay and back pay are appropriate as
Butcher would likely have worked at Robinson Run Mine until 2017,
his projected retirement date, citing: (1) Butcher’s age, (2) his
years of employment with the defendants, and (3) his residence in
a location that has few high-paying jobs for persons with Butcher’s
background.
Further, EEOC contends that the relationship between
Butcher and his superiors at the Harrison County Mine (formerly
Robinson Run Mine) is likely irreparably damaged in this case.
Finally, EEOC asserts that Butcher should not be forced to leave
his current job for reinstatement with the defendants, even if it
were feasible.
EEOC also argues that Butcher has mitigated his damages as he
has been fully employed since October 22, 2012.
EEOC avers that
Butcher sought employment in the coal mining industry and in the
heavy equipment operating industry as those wages would have been
comparable to what he was making before.
Further, EEOC asserts
that the defendants do not have any proof the Butcher failed to
apply for any coal industry jobs that Butcher was aware of or that
there were available coal industry jobs between August 2012-October
2012.
In addition, EEOC contends that under Fourth Circuit
precedent, once Butcher received a lower paying job he was free to
stay in that position and was not required to continue searching
11
for higher paying employment.
Furthermore, EEOC argues that the
defendants led Butcher to believe that he would not be hired by
unionized mines because he was a retiree who was drawing a pension
and thus Butcher’s belief that he would not be hired by those mines
was reasonable.
Finally, EEOC asserts that there is no evidence
that Butcher was aware of job openings at Federal No. 2 Mine
(“Federal No. 2”), a union coal mine that had started hiring in May
2013 and at which a former acquaintance of Butcher’s was involved
in hiring decisions, or that Butcher would have been selected for
the job had he applied.
In response, the defendants argue that Butcher failed to
reasonably mitigate his back pay damages by not seeking similar
employment in the coal mining industry.
The defendants contend
that Butcher only attended one coal industry job fair and did not
thereafter seek similar employment in the coal industry because he
did not want to lose his pension payments. Further, the defendants
assert that Butcher would have received similar pay if he had
applied with Federal No. 2 in May-August 2013 and that Butcher was
likely aware of openings as his son and Donald Allard, who Butcher
is personally acquainted with, work at the Federal No. 2.
b.
Applicable Law
A Title VII claimant is presumptively entitled to back pay
unless the defendant provides evidence that the plaintiff did not
exert reasonable efforts to mitigate his damages.
12
Albemarle, 422
U.S. at 421 (“[B]ackpay should be denied only for reasons which
. . . would not frustrate the central purpose statutory purposes of
eradicating discrimination . . . and making persons whole for
injuries suffered.”); City of Los Angeles, Dept. of Water and
Power, et al. v. Manhart, et al., 435 U.S. 702, 719 (1978) (stating
that the Albemarle presumption is seldom overcome). The defendant,
however, may overcome such a presumption by offering evidence that
the claimant did not reasonably mitigate damages. Id.
If this
Court finds that the presumption has been overcome by the evidence
offered by a defendant, deductions must be made from the claimant’s
gross back pay.
Lundy, 856 F.2d at 629.
In considering whether the presumption is overcome, this Court
may give more or less weight to certain witnesses based on their
demeanor.
must
Id. at 1359.
determine
“reasonably
In weighing such testimony, this Court
whether
diligent
the
in
claimant
seeking
has
and
met
accepting
his
new
duty
to
be
employment
substantially equivalent to that from which he was discharged.”
Brady v. Thurstone Motor Lines, Inc., 753 F.2d 1269, 1273 (4th Cir.
1985) (citation omitted).
In determining whether a claimant accepted substantially
equivalent employment, this Court must consider the reasonableness
of the claimant’s effort based on (1) the economic climate; (2) the
claimant’s
skill
and
qualifications;
(3)
compensation,
job
responsibilities, and employment conditions of the two positions;
13
and (4) the claimant’s age and personal limitations. Lundy Packing
Co. v. National Labor Relations Board, 856 F.2d 627, 629 (4th Cir.
1988); EEOC v. CTI Global Solutions, Inc., 815 F. Supp. 2d 897, 915
(D. Md. 2011).
Based on those factors, a claimant may accept a
lower paying job or a job in another field when his search for
similar employment proves futile and the choice is made in good
faith. Brady, 753 F.2d at 1275; CTI Global Solutions, 815 F. Supp.
2d at 912.
Further, any refusal of substantially equivalent
employment must be involuntary to avoid a setoff of damages.
Brady, 753 F.2d at 1273.
Consequently, this Court may find that
when a claimant chose to stay with “steady, albeit lower paying,
employment, the employee was acting reasonably in seeking a regular
income.”
Brady, 753 F.2d at 1273; National Labor Relations Board
v. Pepsi Cola Bottling Co. of Fayetteville, Inc., 258 F.3d 305, 311
(4th Cir. 2001) (finding that lower pay by itself does not preclude
full recovery).
On the other hand, this Court will not reduce the amount of
back pay where the claimant took part-time or seasonal work and
discontinued an otherwise reasonable job search.
at 630.
Lundy, 856 F.2d
Additionally, this Court must only consider the diligence
of the claimant, the “EEOC’s diligence is immaterial to [the
claimant’s] back pay entitlement.” EEOC v. Massey Yardley Chrysler
Plymouth, Inc., 117 F.3d 1244, 1252 (11th Cir. 1997) (where EEOC
failed to request reinstatement six months prior to when the
14
claimant failed to request reinstatement, the court found that the
six months in between would not count against the damages award).
a.
Background
Butcher testified that he attended at least three job fairs
(one for Leer Mining and two in the oil and gas industry), listened
for job advertisements on the radio, looked in the newspaper for
job advertisements, and looked for “help wanted” signs immediately
after retiring in August 2012 to October 2012.
Butcher further
testified that he submitted applications for employment to a retail
home
improvement
store;
to
an
automobile
parts
store;
to
a
temporary personnel services organization; to Leer Mining, a local,
non-union coal mine; and with the Equipment Operators Union through
the local union hall.
Butcher stated that he was given an
interview with Leer Mining but was not offered employment.
Butcher testified that he was looking for both heavy equipment
and construction jobs as well as coal mining jobs because he
believed that those jobs paid as well as coal mining jobs, he had
run heavy equipment at Robinson Run Mine, and had done residential
and commercial construction prior to working in the coal industry.
Butcher testified that he has not turned down a job offer and was
not aware of other coal mining opportunities at the time other than
the one he applied for with Leer Mining.
Butcher is a fifty-eight year old, whose highest level of
education is a high school diploma, and who lives in a rural town
15
in West Virginia with his wife and two grandchildren, who he and
his wife adopted. In October 2012, Butcher took a full-time hourly
job as a carpenter’s helper through a temporary personnel services
organization making $12.00 per hour, working forty-two to fortythree
hours
per
week.
In
this
job,
Butcher
helped
to
put
manufactured homes together; worked out of an office in Fairmont,
West Virginia; and had no benefits. Butcher testified that he took
this job because he was not receiving any income that could be used
to support his family and he had not begun receiving his union
pension benefits at this time.
Butcher was then offered permanent employment with Middletown
Home Sales in January 2013 where he was still making $12.00 per
hour.
In September 2013, Butcher took a higher paying job with
benefits
with
Ryan
Environmental
where
he
completed
pressure
washing to help clean-up environmental spills and performed some
construction work.
This position was full-time, generally fifty-
six hours per week, and Butcher was initially paid $13.00 per hour.
Butcher’s hourly wage was incrementally increased through April
2015 when he was making, and to this Court’s knowledge still is
making, $16.50 per hour.
On the other hand, Butcher indicated that other than applying
for the Leer Mining job he had otherwise not applied for other jobs
in the coal mining industry.
Further, Butcher testified that he
had not called other companies or mines to inquire as to an opening
16
and did not apply with any staffing agencies for the coal industry
although he was aware of agencies that fulfilled those function.
Butcher
testified,
however,
that
he
had
learned
through
his
experience with persons placed by these agencies at Robinson Run
Mine that the benefits and pay were not comparable to what he had
made at Robinson Run Mine.
Butcher also stated that he did not
want to take a coal mining job which would result in a loss of his
pension benefits.
But, Butcher indicated that he would have taken
a mining job if it paid more than his pension benefits.
The defendants also put on evidence regarding Federal No. 2.
Butcher testified that he was not aware the Federal No. 2 was
hiring; did not call his acquaintance, Don Allard (“Allard”); or
otherwise inquire into whether it was hiring.
Butcher also
testified that Federal No. 2 pays a lesser wage than what he had
made at Robinson Run Mine and that he believed its benefit program
was also sub-par to that offered through Robinson Run Mine.
A witness for the defendants, Allard (Butcher’s acquaintance
at Federal No. 2), testified that the wage rates are lower at
Federal No. 2 than at Robinson Run Mine. However, Allard indicated
that the benefits were similar until July 2013 when the parent
company of Federal No. 2, Patriot Coal, filed bankruptcy and
renegotiated the collective bargaining agreement with the UMWA.
Allard testified that Butcher would have been qualified to apply to
Federal
No.
2
in
May
or
June
17
of
2013
and
that
newspaper
advertisements were placed in towns close to where Butcher resides
at that time and again in February 2014. However, Allard indicated
that Federal No. 2 did not sponsor any job fairs in 2013 or 2014.
Further, Allard testified that despite a second bankruptcy in 2015,
Federal No. 2 has not laid off workers since 2013.
b.
Application
This Court finds that Butcher has reasonably mitigated his
damages.
This Court will review the four factors set forth above.
First, the economic climate of the area where Butcher resides
and resided at the time he retired in 2012 was not failing but also
was not strong.
The evidence provided at the evidentiary hearing
shows that Butcher is from a rural area wherein high-paying
employment opportunities are likely more scarce than in more
populated areas.
Further, Allard’s testimony provides this Court
with some insight into the turbulence that has hit the coal mining
industry spanning from at least 2013 to the present. Additionally,
Butcher’s personal economic circumstances must be weighed. Butcher
also had a wife and two grandchildren to support at the time of his
retirement and had not begun receiving any benefit payments.
The Fourth Circuit has found that an employee reasonably
mitigated even though he took a lesser paying job that might
generally not be considered substantially equivalent because the
employee was located in a rural area where the unemployment rate
was high and several employers in the area had laid off employees.
18
Lundy Packing Co., 856 F.2d at 629.
Further, within this circuit,
it has been found to be reasonable for an employee to accept parttime
work
after
attempting
to
find
substantially
equivalent
employment because of a need to support family members. CTI Global
Solutions, Inc., 815 F. Supp. 2d at 912.
These cases are both
supportive of a finding that the economic climate in this case
would afford Butcher more leeway with what job he accepted after
retirement in 2012. The economic climate in his rural area was not
strong
and
he
also
had
the
pressure
of
his
familial
responsibilities when considering what job to accept at that time.
Given these factors, this Court finds that this element weighs in
favor of a finding that Butcher reasonably mitigated although he
took a lesser paying job that was not in the coal mining industry.
Next, Butcher testified that he only has a high school diploma
and has only worked in the construction and coal mining industries.
However, Butcher also testified that he is highly skilled within
the coal mining industry, is a black hat,1 and thus qualifies for
numerous jobs within that industry.
The qualifications and skills
that Butcher acquired would likely not translate to other areas of
1
A “black hat” is an experienced miner who has worked in the
mines for at least one year, has passed certain certification
exams, and may perform more advanced jobs than inexperienced miners
referred to as “red hats.”
No Red Hats Allowed: Dangers of
Underground
Mining,
The
Pump
Handle,
Aug.
19,
2007,
https://thepumphandle.wordpress.com/2007/08/19/no-red-hats-allowe
d-dangers-of-underground-mining/.
19
industry except, as Butcher testified, to the areas of heavy
machinery and construction.
This element also weighs in Butcher’s favor. Although skilled
in certain industries, Butcher was still limited by his education
in what higher-paying jobs he qualified for within his area. Thus,
this
factor
would
weigh
in
favor
of
the
jobs
that
Butcher
ultimately took which appear to be in the construction or heavy
equipment industries.
The jobs that Butcher ultimately accepted
are not totally removed from Butcher’s various skills and also are
reasonable given that Butcher only has a high school diploma.
See
Lundy, 856 F.2d at 629 (considering the displaced employees’ skill
sets as mainly laborers and lack of formal education in finding
that the acceptance of lower paying employment was reasonable).
Thus, this factor weighs in favor of Butcher.
Thirdly, although a close call, this Court finds that the
compensation, job responsibilities, and employment conditions of
Butcher’s position at Robinson Run Mine and the position he
acquired
with
the
temporary
personnel
services
and
Ryan
Environmental qualify as reasonable mitigation. Again, Butcher may
obtain
employment
in
another
field,
even
in
a
lower
position, as long as his action was in good faith.
paying
CTI Global
Solutions, Inc., 815 F. Supp. 2d at 912.
Here, Butcher took a position with the temporary personnel
services at a rate of $12.00/hour and is now at a position with
20
Ryan Environmental at a rate of $16.50/hour. EEOC has acknowledged
that this is approximately a sixty percent lower pay rate than
Butcher was making at Robinson Run Mine.
The defendants also
presented evidence that there were jobs available at Federal No. 2
in May/June of 2013.
However, the evidence provided does not give
a clear picture as to whether the rate of pay would have been
comparable to the rate of pay Butcher received at Robinson Run
Mine. The evidence provided seems to suggest that the pay rate may
have been comparable but also suggests that the pay rate could have
varied by at least fifty percent (downward). Moreover, Butcher had
already secured steady employment at the time the job openings were
available at Federal No. 2.
Brady, 753 F.2d at 1273 (claimant may
stay with a lower paying job that provides regular income).
Thus,
the evidence provided regarding Federal No. 2 does not provide
enough for this Court to find that Butcher did not reasonably
mitigate.
Butcher, however, also testified that his search did not
encompass certain mining jobs because he did not want to lose his
pension benefits.
Butcher explained his position, however, and
stated that he would have accepted a mining job if the pay and
benefits provided the same security he had with the pension
benefits.
Further, Butcher’s search did not completely forego a
search of coal mining jobs.
and applied to Leer Mining.
Rather, Butcher attended a job fair
Butcher also attended other job fairs
21
and put in applications in areas that he was familiar with such as
heavy machinery and construction.
Thus, although Butcher accepted
a lower paying job, in a different field, this Court cannot find
that he did not reasonably mitigate by taking that job given this
Court’s discretion to weigh Butcher’s testimony favorably.
Other
courts
circumstances.
have
held
the
same
in
cases
with
similar
For example, where a former employee had made
weekly visits to an unemployment office and then obtained his
realtor’s license even though he had previously been in the
trucking industry, the court found that he reasonably mitigated.
Cline v. Roadway Exp., Inc., 689 F.2d 481, 489-90 (4th Cir. 1982).
In this case, Butcher was even more proactive and went out to
physically apply to different companies, attended job fairs, and
scanned local businesses and newspapers for job announcements.
In another case, the court found that a former employee
reasonably mitigated who had posted resumes online, applied to
numerous positions, and attended job fairs but ultimately accepted
a
part-time
job
in
order
to
support
Solutions, Inc., 815 F. Supp. 2d at 912.
her
family.
CTI
Global
This is similar to the
scenario presented in this action wherein Butcher searched for jobs
that he believed he was qualified for, even within the coal mining
industry, but ultimately had to accept what he was offered given
his familial obligations.
As such, this factor also weighs in
favor of Butcher receiving a full damages award.
22
Finally, Butcher’s progressing age is a factor that weighs in
favor of finding that Butcher reasonably mitigated.
Butcher was
nearing retirement age and had only worked in construction or in
the mining industry (with heavy machinery experience as well).
Thus,
Butcher
was
limited
educational background.
Butcher’s
favor.
based
on
his
age
and
his
limited
Accordingly, this element also weighs in
Consequently,
this
Court
finds
that
the
defendants have not met their burden of proving that Butcher did
not reasonably mitigate and this Court will not make any deductions
from Butcher’s damages award for either back pay or front pay.
c.
Front Pay: Reinstatement
This Court also finds, within its discretion, that Butcher was
not required to seek reinstatement.
At the evidentiary hearing,
during cross-examination, Butcher testified that he would have
considered reinstatement at Robinson Run Mine if that had been an
option.
It
was
then
inferred
that
EEOC
was
aware
that
reinstatement was an option but had not informed Butcher of this
option, and instead, chose to seek front pay damages.
A claimant does not need to seek reinstatement if he does not
reasonably believe that the employer would rehire him.
Equal
Employment Opportunity Commission v. Lutheran Family Services in
the Carolinas, 884 F. Supp. 1033, 1041 (E.D.N.C. 1994).
Further,
the reasonableness of a claimant’s decision is based on the
23
knowledge and diligence of the claimant rather than of EEOC.
Massey Yardley Chrysler Plymouth, 117 F.3d at 1252.
In this case, the only evidence adduced related to this matter
was testimony from Butcher during the evidentiary hearing. Butcher
testified that he would have returned to Robinson Run Mine if he
knew that was an option.
However, Butcher’s testimony throughout
this action indicates that he was unaware of and did not believe
that reinstatement was an option.
This belief, this Court finds,
was reasonable given the underlying circumstances of this case. As
the jury found, Butcher was constructively discharged and forced
into retirement due to the failure of the defendants to accommodate
his religious objection to the biometric hand scanner. It would be
reasonable for Butcher to believe, given the jury’s finding, that
he did not have the option of reinstatement unless he was willing
to use the scanner.
This finding is further made in consideration of the fact that
EEOC’s knowledge is not imputed to Butcher.
Thus, although it was
implied at the evidentiary hearing that reinstatement was an option
that EEOC knew about, although it is still unclear from the
testimony that this was in fact an option, this Court does not need
to base its finding on the reasonableness of EEOC’s decision.
Rather, this Court must consider what Butcher knew and whether his
decision
was
reinstatement,
reasonable.
given
the
Further,
underlying
24
this
Court
circumstances,
finds
is
a
that
less
reasonable alternative to damages.
Accordingly, this Court finds
that front pay damages should be awarded given this finding and the
immediately preceding finding regarding mitigation.
B.
Plaintiff’s Motion for Permanent Injunction
1.
Arguments of the Parties
In its motion for permanent injunction, EEOC requests that the
Court issue a company-wide permanent injunction that will dissolve
after a period of three years, which includes the following: (1)
any requirement or rule for the use of a biometric hand scanner
will be in conformity with Title VII as long absent undue hardship
on the defendants, (2) provide complete exemption as an alternative
for
persons
who
need
such
an
exemption
as
a
reasonable
accommodation; and (3) provide training to all management personnel
regarding
Title
VII’s
requirements
and
the
duties
under
the
injunction within 60 days of the issuance of the injunction.
EEOC argues that such an injunction should be entered because
once a plaintiff has prevailed in a Title VII case, injunctions are
presumptively appropriate.
Additionally, EEOC asserts that there
is no requirement that the proven discrimination be ongoing,
especially in a case such as this where there is a risk of future
violations by the defendants as shown by the trial evidence: (1) a
blanket policy for hand scanning with no policy for how to deal
with
religious
attempting
to
objectors,
implement
a
(2)
no
policy
25
evidence
for
of
dealing
the
defendants
with
religious
accommodations, and (3) all of the discriminating employees are
still employed by the defendants.
Finally, EEOC argues that the
injunction is narrowly tailored as it deals specifically with the
biometric hand scanner and sets forth requirements of training
specific to religious accommodation.
The defendants contend that an injunction is not necessary as
the conduct is not ongoing and there is no blanket policy in place.
The defendants again argue that key entry would have been offered
to Butcher as the next step if Butcher had not made it apparent
that he would not use the scanner at all.
Additionally, the
defendants contend that Butcher was not given an ultimatum and
still had the option of filing a grievance under the collective
bargaining agreement.
agreement
rights,
it
Under these same collective bargaining
would
be
unlikely
for
such
religious
violations to reoccur.
Further, the defendants contend that Consol Energy should not
be subjected to the injunction as (1) the jury only made a finding
that it was the employer of Butcher but did not make any finding
regarding its operation of other subsidiaries, (2) the matter
involving Butcher was unique as no other religious objection has
been received in any of the subsidiaries, and (3) there is nothing
that
suggests
that
Consol
Energy
makes
or
employment decisions at other subsidiaries.
has
made
similar
As to CCC, the
defendants argue that such an injunction should not be entered as
26
CCC is no longer associated with Consol Energy or the Harrison
County Mine (Robinson Run Mine) because it is now owned by Murray
Energy
Corporation
(“Murray”)
and
implemented their own policies.
its
subsidiary
who
have
Additionally, the defendants
assert that an injunction is not necessary against CCC as it is
under new management, policies, and procedures.
Further, Chris
Fazio (“Fazio”) and Tom Hudson (“Hudson”) are now employed by
Murray
Energy
Corporation
and
affiliation with Consol Energy.
its
subsidiary
and
have
no
However, Sam Johnson (“Johnson”)
and Mike Smith (“Smith”) are still employed by Consol Energy but
Johnson is no longer in a human resources position and Smith is the
superintendent of a mine owned by a subsidiary of Consol Energy
which was not a party to this action.
As to the specificity of the injunction, the defendants argue
that the injunction does not provide enough guidance as to what
specifically must be done when there is a religious objection to
the hand scanner.
injunction
should
Further, the defendants contend that the
take
into
account
collective
agreements and their impact on any such claims.
bargaining
Finally, the
defendants assert that they do not contest the third prong of the
injunction except as to the sixty day requirement which will likely
not be enough time given the likelihood of the defendants filing
appellate motions.
27
In reply, EEOC asserts that the defendants may not relitigate
their collective bargaining agreement or blanket policy arguments
at this stage in the proceedings as that has already been decided
by this Court and the jury.
Alternatively, EEOC argues that the
collective bargaining argument fails as the defendants are simply
contending that an adversarial arbitration process should be used
instead of the defendants implementing a policy to avoid violations
of Title VII. Additionally, EEOC contends that such a policy would
not
necessarily
protect
individual
rights
as
the
union,
the
gatekeeper, is interested in the rights of the group as a whole.
As to the four employees involved in the underlying action,
EEOC first argues that the defendants have not shown that Johnson
does not have authority over religious accommodation requests of
his subordinates even though he is no longer in the human resources
department. Further, EEOC contends that because Smith, Hudson, and
Fazio remain in positions as supervisors or in human resources, the
injunction is necessary. As to Hudson and Fazio, EEOC asserts that
the defendants have not provided any indication as to what Murray’s
current policies are or if such policies will reduce the likelihood
of future violations as the managers who committed the violation
are still employed there. Additionally, EEOC asserts that the fact
that
no
other
requests
have
been
made
is
immaterial
as
an
injunction is a prophylactic measure necessary for future requests.
28
EEOC asserts that Consol Energy is covered by the injunction
as its managers were involved in the decision making that resulted
in a violation. Thus, EEOC argues that any further decision making
by Consol Energy, even if it affects another subsidiary, should be
covered.
Finally, EEOC contends that the injunction is narrowly
tailored and that it cannot provide specific guidance that would
amount to legal advice. Thus, EEOC argues that the injunction must
be tailored so that it may be applied in a case-by-case basis.
2.
Applicable Law
Where a plaintiff has prevailed on a Title VII claim, there is
no discretion for this court to deny injunctive relief completely.
United States v. Gregory, et al., 871 F.2d 1239, 1246 (4th Cir.
1989).
The burden to show that injunctive relief should be
curtailed is thus on the employer once a plaintiff has prevailed.
Equal Employment Opportunity Commission v. Service Temps, Inc., 679
F.3d 323, 338 (5th Cir. 2012).
An employer must show more than
curative actions after the underlying litigation was filed “to
provide sufficient assurance that it will not repeat the violation
to
justify
denying
an
injunction.”
Employment
Opportunity
Commission v. Goodyear Aerospace Corp., 813 F.2d 1539, 1544 (9th
Cir. 1987) (citation omitted).
Therefore, an employer must show
that the wrongful conduct was an isolated incident rather than
systematic company-wide discrimination.
Co., 894 F.2d 651, 660 (4th Cir. 1990).
29
Spencer v. General Elec.
The burden on the employer
is a heavy one and an injunction may still be appropriate even if
the employer has shown that the discriminatory conduct has ceased
and no other discrimination had occurred in the past.
United
States v. WT Grant Co., 345 U.S. 629 (1953).
Further, the EEOC is able to seek relief beyond that needed to
make the claimant whole as the EEOC has the right to advocate both
for the employee’s personal interest and for the broader public
interest.
Massey Yardley Chrysler, 117 F.3d at 1253; Goodyear
Aerospace Corp., 813 F.2d at 1542 (citing General Tel. Co. v. Equal
Employment Opportunity Commission, 446 U.S. 318, 326 (1980)).
Accordingly, the existence of an arbitration agreement between the
employer and the employee does not materially change the EEOC’s
statutory
function
or
available
remedies.
Equal
Employment
Opportunity Commission v. Waffle House, Inc., 534 U.S. 279, 280,
syl. pt. (a) (2002).
Title
VII
relief
by
Moreover, an employee does not forfeit any
invoking
the
grievance
and
arbitration
procedures under a collective bargaining agreement and thus such
procedures are considered separate and apart from a Title VII
claim.
Gen. Tel. Co., 446 U.S. at 332 (citation omitted).
As
such, this Court must determine the following: (1) is the violation
unlikely to recur and (2) is injunctive relief needed to eliminate
the
discriminatory
discrimination.
Id.
effects
of
the
past
and
bar
future
Thus, “Title VII remedies have not been
30
limited
to
correcting
only
ongoing
discriminatory
policies.”
Gregory, 871 F.2d at 1246.
However, the injunction must not be unreasonably difficult to
comply with or to enforce and “should be no broader than necessary
to achieve its desired goals.”
Lowery, et al. v. Circuit City
Stores, et al., 158 F.3d 742, 766 (4th Cir. 1998) (citation
omitted); Service Temps, Inc., 679 F.3d at 338-39. The relief must
be based on the constitutional violation, must be remedial, and
must be granted with consideration of its effect on the employer.
Milliken v. Bradley, 433 U.S. 267 (1977).
This does not, however,
foreclose the possibility that the injunction will seek to enforce
conduct that is already enforced by Title VII.
Goodyear Aerospace
Corp., 813 F.2d at 1544.
Consequently,
an
injunction
may
be
tailored
to
do
the
following: (1) instruct the employer on federal law; (2) subject
the employer to the contempt power of the federal courts for future
violations of Title VII; (3) require the employer to establish a
scheme for employees who feel they have been discriminated against
to complain without backlash; (4) require the employer to take
steps to establish a system where claims of discrimination are
investigated and corrected; (5) require the employer to initiate a
procedure for prompt hearings, adjudications, and remedying of
complaints; (6) require the employer to inform any employee denied
relief of his right to file a civil action; and (7) establish a
31
procedure for dealing with claims that will reduce the chilling
effect that may occur because of employees’ fear of retaliation.
Id.; Bundy v. Jackson, 641 F.2d 934, 947-48 (D.C. Cir. 1981).
An
injunction should not, however, be put in place any longer than is
necessary to ensure that a probable risk of discrimination still
exists.
Railway Labor Executives Ass’n v. Wheeling & Lake Erie
Railroad Co., 756 F. Supp. 249, 255 (E.D. Va. 1991).
3.
Background
A jury found that the defendants discriminated against Butcher
in violation of Title VII. At the evidentiary hearing, defendants’
witness, Fazio, testified that he does not work for Consol Energy
nor for any company that is a subsidiary of Consol Energy.
Fazio
testified that Robinson Run Mine has been bought by another company
and is now called the Harrison County Mine.
Fazio averred that
except for Butcher, no other religious accommodation issues have
arisen, the mine continues to operate under Title VII policies, and
the mine provides training on Title VII.
Further, Fazio indicated
that the mine allows anonymous reporting for persons who have an
accommodation issue.
Lee MeCaro (“MeCaro”), the corporate representative for Consol
Energy, also testified.
MeCaro testified that hourly employees
must complete a new-hire orientation, an online training module,
and
are
provided
the
company’s
equal
employment
statement (“EEO statement”) and harassment policy.
32
opportunity
MeCaro stated
that the EEO statement was revised in 2013 and is posted on a
centrally located bulletin board in each mine and on the employee
intranet.
MeCaro also indicated that the online program must be
completed annually by supervisory employees and that it covers
religious objections, accommodation, and discrimination. Further,
MeCaro stated that the company has an anonymous hotline that
employees may call to report discrimination.
Finally, MeCaro
testified that after Butcher’s objection, no other religious-based
objections have been received.
4.
Application
This Court finds that a permanent injunction is required in
this action and that the defendants have not met their heavy burden
of proving that future discrimination will not occur.
First, this
Court notes that it has previously found that the grievance and
arbitration procedures are not to be considered as those procedures
are not considered in determining the validity of a Title VII
claim.
See also Gen. Tel. Co., 446 U.S. at 332.
defendants’
assertion
that
this
Court
should
Thus, the
consider
those
procedures as a buffer for discrimination claims is unfounded.
Further, this Court finds that although the defendants have
attempted to take curative actions after the underlying incident
and the defendants report that no other incidents of discrimination
have occurred, it is still a concern that all four of the employees
involved are still employed by the defendants or Murray and at
33
least
one
is
still
employed
supervisory position (Smith).
by
Consol
Energy
in
a
direct
Additionally, the defendants assert
that because other subsidiaries were not involved, the permanent
injunction is not needed as CCC has been sold to Murray.
However,
that argument is unsupported by the actual facts of this case
wherein Smith is now a superintendent at another mine-subsidiary,
a scenario that needs to be covered by a prophylactic measure such
as an injunction.
Moreover, this Court notes that although CCC has been sold to
Murray,
Murray
acquisition.
has
taken
on
CCC’s
liabilities
through
the
See Dan Zajdel, Tyler Lewis, & Lynn Seay, Consol
Energy Takes Transformative Step to Advance E&P Growth Strategy,
Consol
Energy,
Oct.
28,
2013,
http://
www.consolenergy.com/media/22238/consol_pressrelease_102813.pdf.
Thus, although Hudson and Fazio are no longer employees of Consol
Energy, it appears that Murray has taken on liabilities such as
those indicated in this action. Although this is not a dispositive
factor, it is another indication that a permanent injunction should
be applied.
Finally, this Court finds that the scope of the injunction
requested by EEOC is not overly broad but does find that the final
prong should be tailored to allow EEOC more time to comply with the
order.
The
injunction
specifically
targets
religious
discrimination based on precedential case law and the biometric
34
hand scanning device.
Further, the injunction is limited to a
three year span which should allow the defendants to put in place
policies and procedures, beyond what they have done now, that will
ensure that all employees are reasonably accommodated for sincerely
held religious beliefs.
The measures prescribed later in this
opinion and requested by EEOC, require the defendants to instruct
its employees on federal law and also provides instructions based
on federal precedent, requires the employer to establish a scheme
for employees to report so that there is not a chilling effect, and
requires the employer to establish procedures for prompt remedying
of complaints and possible discriminatory acts in the future.
Thus, all of the measures ordered in the injunction are measures
that have been applied and upheld by other courts.
E.g. Goodyear
Aerospace Corp., 813 F.2d at 1544; Bundy, 641 F.2d at 947-48.
However, this Court will allow 180 days instead of 60 days for
compliance with the third prong of the injunction.
agrees
with
the
defendants
that
more
time
is
This Court
necessary
in
consideration of the size of Consol Energy and its workforce and
the preparation that will need to be undertaken to fulfill the
requirements of that prong.
C.
Damages Awarded
EEOC
has
calculated
damages
up
to
the
June
18,
2015
evidentiary hearing and no party has filed another calculation
based on another date.
The damages calculations provided by the
35
defendants differ based on the arguments this Court has considered
earlier in this order.
Because this Court has found in favor of
EEOC on those issues, it will make its findings regarding the
damages award based on EEOC’s calculations.
EEOC offers the following regarding back pay and front pay:
(1) Butcher would have made $99,703.36 in 2012 at the Robinson Run
Mine; (2) Butcher worked for $12.00/hour from October 22, 2012
to
September 22, 2013; and (3) thereafter, he has been employed
full-time at a rate starting at $13.00/hour when he started and now
at $16.50/hour.
deposition
that
Emerson Work, a UMWA representative, testified in
Butcher
would
have
received
an
additional
$347.50/month in pension benefits had he retired in July or August
2017 rather than August 2012.
Tun found that Butcher was entitled to $212,395.56 for back
pay from August 10, 2012 to June 18, 2015.
As to front pay, Tun
found that Butcher’s front pay from June 19, 2015 to August 1, 2017
is $149,149.01. Further, Tun provided front pay for Butcher’s lost
pension,
based
on
Butcher’s
life
expectancy,
of
$60,113.48.
Finally, Tun provided a calculation for lost supplemental pension
benefits at a total of $15,202.69; $8,321.60 for back pay and
$6,881.09 for front pay.
The total amount of damages is thus
$436,860.74.2
2
This Court notes that the final total is different than that
testified to by Tun at the evidentiary hearing. This Court has
totaled the numbers provided by Tun at that hearing and has found
36
This Court finds that these damages should be awarded based on
the findings made in this opinion.
V.
Conclusion
Based on the analysis above, this Court finds that the
defendants’ motion in limine to exclude evidence of lost pension
benefits of Beverly Butcher is DENIED.
The plaintiff’s motion for
permanent injunction is GRANTED.
The defendants are thus ORDERED to pay back and front pay
damages, which includes pension and supplemental pension benefits,
in the amount of $436,860.74, with interest to be applied from the
date of this order, based on the findings made in this order and
based on testimony taken at the evidentiary hearing.
Further, the
defendants are ORDERED to pay compensatory damages in the amount of
$150,000.00, as awarded by the jury on January 15, 2015 with
interest to be applied from January 15, 2015.
Accordingly, the
total amount of monetary damages, before interest, is 586,860.74.
Further, the defendants are ORDERED to do the following, all
of which will dissolve after a period of three years:
1.
must use
In relation to any requirement or rule that employees
a biometric scanner device, the defendants shall not
engage in any future violations of the provisions of Title VII of
the Civil Rights Act of 1964, as amended, that require reasonable
that the total is as provided in this opinion rather than the total
figure testified to by Tun, $437,460.74.
37
accommodation
of
religion
(as
defined
therein)
absent
undue
hardship on the conduct of the defendants’ business;
2.
policy,
The
defendants
protocol,
or
shall
not
practice
maintain
related
to
or
implement
employee
any
biometric
scanning that in-effect excludes or categorically bars giving
complete scanning exemption to employees who require such complete
exemption as a reasonable accommodation for a sincere religious
belief, observance, or practice that conflicts with a mandatory
scanning requirement or rule; and
3.
Not later than 120 days after this order is entered, the
defendants are required to provide training to all management
personnel responsible for decision-making concerning religious
accommodation requests that will focus on:
a.
the meaning of “religion” as defined by Title
VII of the Civil Rights Act of 1964, as amended;
b.
an
accommodation
employer’s
c.
employer
duty
to
provide
reasonable
under Title VII;
the process of bilateral cooperation between
and
employee
when
handling
reasonable
accommodation requests under Title VII;
d.
best
practices
for
identifying
reasonable
accommodations for religion and responding to employee
requests for religious accommodation; and
38
e.
the defendants’ duties under the injunction
issued in this action.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein. Pursuant to Federal
Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment
on this matter based upon the verdict returned by the jury on
January 15, 2015, and the findings by this Court made in this
memorandum opinion and order.
DATED:
August 21, 2015
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
39
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