U.S. Equal Employment Opportunity Commission v. Consol Energy, Inc. et al
Filing
189
MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW, DENYING DEFENDANTS 178 MOTION FOR A NEW TRIAL AND DENYING DEFENDANTS MOTION TO AMEND THIS COURTS FINDINGS AND CONCLUSIONS. Court notes that it previously entered judgment in this civil action under Rule 58 on August 25, 2015. See ECF No. 164 . Signed by Senior Judge Frederick P. Stamp, Jr on 2/9/2016. (Copy counsel of record)(jmm) Modified on 2/9/2016 linked DE 164 to text (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,
Defendants.
MEMORANDUM OPINION AND ORDER
DENYING DEFENDANTS’ RENEWED MOTION
FOR JUDGMENT AS A MATTER OF LAW,
DENYING DEFENDANTS’ MOTION
FOR A NEW TRIAL AND
DENYING DEFENDANTS’ MOTION TO AMEND
THIS COURT’S FINDINGS AND CONCLUSIONS
This is a Title VII religious discrimination case.
plaintiff,
the
United
States
Equal
Employment
The
Opportunity
Commission (“the EEOC”), brought this civil action on behalf of
Beverly R. Butcher, Jr. (“Butcher”), alleging that the defendants,
CONSOL Energy, Inc. (“CONSOL”) and Consolidation Coal Company
(“Consolidation”), denied Butcher a religious accommodation to
their policy requiring employees to clock-in and clock-out with a
biometric hand scanner. After a trial, the jury returned a verdict
in favor of the EEOC and awarded $150,000 in compensatory damages
to Butcher. This Court then, after an evidentiary hearing, awarded
back pay and front pay damages in the amount of $436,860.74 and
issued a permanent injunction requiring the defendants to provide
religious accommodations to their hand scanner policy and to
provide Title VII training to employees. The defendants then filed
a renewed motion for judgment as a matter of law under Rule 50(b),
a motion for a new trial under Rule 59, and a motion to amend this
Court’s findings and conclusions under Rule 59.
For the following
reasons, the defendants’ motions are denied.
I.
Background
Butcher worked at the Robinson Run coal mine for 35 years.
ECF No. 141 at 41.
In 2012, the defendants announced a new policy
requiring all employees to clock-in and clock-out by using a
biometric hand scanner.
Butcher objected to the hand scanner
policy, stating that he believed it was part of an identification
system and collection of personal information that would be used by
the Christian Antichrist, as described in the New Testament Book of
Revelation, to identify his followers with the “mark of the beast.”
Butcher requested a religious exemption from the hand scanner
policy, stating that he feared damnation from its use.
Although
the defendants had developed a method of bypassing the hand scanner
for miners who were physically incapable of scanning their hands,
the defendants refused to grant Butcher an exception from scanning
his hand, and provided him with a copy of their progressive
disciplinary policy that included possible discharge after four
missed hand scans.
After being told that the defendants would
2
enforce the disciplinary policy against him if he refused to scan
his hand, Butcher retired.
The EEOC filed this civil action on Butcher’s behalf, claiming
that the defendants’ failure to provide a religious accommodation
to Butcher amounted to religious discrimination under Title VII.
This Court bifurcated the trial and determination of liability and
compensatory damages from a determination of back pay and front pay
damages, which must be decided by this Court in equity.
returned a verdict in favor of the EEOC.
The jury
Specifically, the jury
found: (1) that CONSOL was Butcher’s employer; (2) that Butcher had
a “sincere religious belief that conflicted with an employment
requirement”; (3) that Butcher “informed his employer of this
belief”; (4) that Butcher “was subjected to an adverse employment
action . . . by being . . . constructively discharged by his
employer for his refusal to comply with the conflicting employment
requirement”; (5) that the defendants did not provide Butcher a
reasonable accommodation; and (6) that the accommodations proposed
by the EEOC at trial would not have “resulted in more than a de
minimis cost” to the defendants.
ECF No. 125.
The jury awarded
$150,000 in compensatory damages.
This Court then held an evidentiary hearing to determine back
pay and front pay damages.
The parties presented testimony from
experts and other witnesses and legal argument.
This Court
concluded that the pension benefits Butcher had received since
3
retiring were a collateral source and should not be used to offset
damages.
Based on that conclusion, this Court awarded $436,860.74
in back pay and front pay damages, including lost pension benefits.
The defendants then filed a renewed motion for judgment as a matter
of law under Rule 50(b), a motion for a new trial under Rule 59,
and a motion to amend this Court’s findings and conclusions under
Rule 59.
II.
A.
Discussion
Renewed Motion for Judgment as a Matter of Law
Federal Rule of Civil Procedure 50 permits a court to enter
judgment as a matter of law where “a party has been fully heard on
an issue during a jury trial and the court finds that a reasonable
jury would not have a legally sufficient evidentiary basis to find
for the party on that issue.”
Fed. R. Civ. P. 50(a)(1).
“Judgment
as a matter of law is properly granted if the nonmoving party
failed to make a showing on an essential element of his case with
respect to which he had the burden of proof.”
Collection
Servs.,
Inc.,
763
F.3d
385,
(internal quotation marks omitted).
Russell v. Absolute
391
(4th
Cir.
2014)
On a renewed motion for
judgment as a matter of law, the court considers whether the jury’s
findings are supported by substantial evidence.
Konkel v. Bob
Evans Farms, Inc., 165 F.3d 275, 279 (4th Cir. 1999). In reviewing
the
evidence,
the
court
may
not
weigh
the
evidence
or
make
credibility determinations, but must view the evidence in the light
4
most favorable to the nonmoving party.
Reeves v. Sanderson
Plumbing Prod. Inc., 530 U.S. 133, 150 (2000); Fontenot v. Taser
Int’l, Inc., 736 F.3d 318, 332 (4th Cir. 2013).
The defendants cites two grounds for why they are entitled to
judgment as a matter of law: (1) that the EEOC failed to present
sufficient evidence to state a prima facie case of religious
discrimination; and (2) that there was insufficient evidence to
support the jury’s finding that CONSOL was Butcher’s employer.
1.
The EEOC’s Prima Facie Case
Title
VII
obligates
employers
“to
make
reasonable
accommodation for the religious observances of its employees, short
of incurring an undue hardship.”
EEOC v. Firestone Fibers &
Textiles Co., 515 F.3d 307, 312 (4th Cir. 2008) (internal quotation
marks
omitted).
For
a
prima
facie
case
of
religious
discrimination, a plaintiff must prove that: (1) “he or she has a
bona fide religious belief that conflicts with an employment
requirement; (2) he or she informed the employer of this belief;
[and] (3) he or she was disciplined for failure to comply with the
conflicting employment requirement.” Id. (alteration in original).
“If the employee establishes a prima facie case, the burden
then shifts to the employer to show that it could not [reasonably]
accommodate
hardship.”
the
plaintiff’s
religious
needs
without
Id. (internal quotation marks omitted).
undue
“To satisfy
its burden, the employer must demonstrate either (1) that it
5
provided the plaintiff with a reasonable accommodation for his or
her religious observances or (2) that such accommodation was not
provided because it would have caused an undue hardship – that is,
it would have result[ed] in more than a de minimis cost to the
employer.”
Id. (emphasis and alterations in original) (internal
quotation marks omitted).
The defendants argue that the EEOC failed to prove two
elements of its prima facie case of discrimination.
First, the
defendants argue that there is insufficient evidence to support the
jury’s
finding
that
the
hand
scanner
Butcher’s sincere religious belief.
policy
conflicted
with
They argue that Butcher’s
“religious concern dealt with the unknown future of technology,”
and that the hand scanner policy did not presently conflict with
Butcher’s religious belief.
ECF No. 179 at 4.
However, there was
sufficient evidence to support a finding that Butcher believed the
hand
scanner
policy
was
immoral
because
it
was
part
of
an
identification system and collection of personal information that
would be used by the Christian Antichrist, and that participation
in this system of identification was a showing of allegiance to the
Antichrist.
James).
ECF No. 141 at 52-54, 56-7; Revelation 13:16-17 (King
Further, Butcher testified that he believed he was not
permitted to participate in the hand scanner policy because he
believed
doing
so
would
be
a
6
pledge
of
allegiance
to
the
Antichrist.
ECF No. 141 at 57-58.
This is more than substantial
evidence to support the jury’s findings on this issue.
Second, the defendants argue that there was insufficient
evidence
to
support
the
jury’s
constructively discharged.
finding
that
Butcher
was
The defendants argue that the hand
scanner policy had not been implemented before Butcher retired and
that Butcher could have filed a grievance with his union, the
United Mine Workers of America (“UMWA”), under its collective
bargaining agreement with CONSOL to challenge, through arbitration,
any attempt to discharge Butcher.
“[A]n employee is constructively discharged if an employer
deliberately
makes
the
working
conditions
of
the
intolerable in an effort to induce the employee to quit.”
employee
Whitten
v. Fred’s, Inc., 601 F.3d 231, 248 (4th Cir. 2010) (internal
quotation
marks
omitted).
The
plaintiff
must
show:
“(1)
deliberateness of the employer’s actions[;] and (2) intolerability
of
the
working
conditions.”
Id.
“[A]
complete
failure
to
accommodate, in the face of repeated requests, might suffice as
evidence to show the deliberateness necessary for constructive
discharge.” Johnson v. Shalala, 991 F.2d 126, 132 (4th Cir. 1993);
see also Crabill v. Charlotte Mecklenburg Bd. of Educ., 423 F.
App’x 314, 324 (4th Cir. 2011).
Similarly, deliberateness may be
shown by evidence that the employer was aware of reasonable
7
accommodations but did not offer them to the plaintiff.
See
Crabill, 423 F. App’x at 319-20, 324.
As discussed in more detail below, evidence of the collective
bargaining agreement’s grievance procedure was irrelevant to a
determination of whether Butcher was constructively discharged.
The evidence showed that Butcher requested an accommodation to the
hand scanner policy, that the defendants had developed a way to
bypass the hand scanner for miners that were physically incapable
of scanning their hands, and that the defendants did not offer that
bypass method as an accommodation for Butcher.
Further, Butcher
met with CONSOL human resources personnel several times regarding
his request for an accommodation, but was repeatedly denied an
exception to the hand scanner policy.
Thus, there was sufficient
evidence for the jury to find that the defendants were aware of a
reasonable accommodation (the bypass method) but did not offer it
to Butcher after several requests for an accommodation.
2.
Substantial Evidence that CONSOL was Butcher’s Employer
CONSOL argues that the EEOC failed to prove that it was
Butcher’s employer because the EEOC failed to show that as a parent
company, CONSOL exercised excessive control over the employees of
Consolidation.
“A parent company is the employer of a subsidiary’s personnel
only if it controls the subsidiary’s employment decisions or so
completely dominates the subsidiary that the two corporations are
8
the same entity.”
Johnson v. Flowers Indus., Inc., 814 F.2d 978,
980 (4th Cir. 1987).
Thus, “[i]f the parent company hired and
fired the subsidiary employees, routinely shifted them between the
two companies, and supervised their daily operations, it would be
hard to find that the parent was not their employer.”
Id. at 981.
There was ample evidence in the record to support the jury’s
finding that CONSOL was Butcher’s employer.
The hand scanner
policy, including its progressive discipline procedure, was created
by CONSOL and given to its subsidiaries for implementation.
No.
153
at
18-19,
30-36,
69-70.
Butcher’s
request
for
ECF
an
accommodation was considered and denied by CONSOL’s human resources
personnel, Christopher Fazio (“Fazio”) and Tom Hudson (“Hudson”).
Fazio was the Human Resources Supervisor (“HR”) at the Robinson Run
Mine.
ECF No. 141 at 166.
His immediate HR supervisor was Tom
Hudson, an HR manager at CONSOL.
ECF No. 141 at 167-68.
CONSOL’s
HR director, Samuel Johnson, approved Fazio and Hudson’s decision
to offer Butcher the option to scan his left hand palm up.
ECF No.
142 at 31-32. Further, Butcher’s retirement and benefits documents
were issued by CONSOL’s HR employees, ECF No. 141 at 169-72, and
his employment records were maintained by CONSOL.
ECF No. 141 at
172-73. Thus, there is substantial evidence that CONSOL was making
employment decisions regarding Butcher, and the jury’s finding that
CONSOL was Butcher’s employer is supported by substantial evidence.
9
The defendants’ renewed motion for judgment as a matter of law is
denied.
B.
Motion for a New Trial
Rule 59 provides courts with discretion to grant a new trial
on all or some of the issues “for any reason for which a new trial
has heretofore been granted in an action at law in federal court.”
Fed. R. Civ. P. 59(a)(1).
A court may grant a new trial only if
the verdict: (1) is against the clear weight of the evidence; (2)
is based upon false evidence; or (3) “will result in a miscarriage
of justice, even though there may be substantial evidence which
would prevent the direction of a verdict.”
Atlas Food Sys. &
Servs., Inc. v. Crane Nat’l Vendors, Inc., 99 F.3d 587, 594 (4th
Cir. 1996).
The first two grounds for a new trial require the
court to make factual determinations, while the third ground
requires a policy analysis under which the “judge’s unique vantage
point and day-to-day experience with such matters lend expertise.”
Id.
The defendants argue that this Court made various legal errors
at trial. This Court presumes that the defendants are arguing that
those errors produced a judgment that “will result in a miscarriage
of justice, even though there may be substantial evidence which
would prevent the direction of a verdict.”
Id.
The defendants
also argue that the jury’s damage award was excessive so as to make
the judgment a miscarriage of justice.
10
1.
Exclusion of Evidence Regarding the Collective Bargaining
Agreement’s Grievance and Arbitration Procedures
Before trial, the EEOC filed a motion in limine to exclude all
evidence regarding the grievance process contained in the United
Mine Workers of America’s (“UMWA”) collective bargaining agreement
with CONSOL, which allowed Butcher to file a grievance with the
union and seek arbitration before he could be discharged.
This
Court deferred deciding the motion until trial.
Each party’s
opening statements discussed the grievance process.
Butcher then
testified in part about the grievance process, and the defendants
cross-examined him about it.
This Court then granted the EEOC’s
motion, denied the defendants’ motion for a mistrial, and gave a
detailed cautionary instruction to the jury to disregard all
mention of the grievance process because it was irrelevant.
defendants then moved for a mistrial.
motion,
concluding
adequately
prevent
defendants
argue
that
the
unfair
that
the
The
This Court denied that
curative
jury
instruction
would
the
defendants.
The
prejudice
to
evidence
was
relevant
for
several
reasons, and that its exclusion prejudiced them because the jury
was misled into believing that Butcher had no option but to retire.
First, the defendants argue that the EEOC had to show that
Butcher had no option but to comply with the hand scanner policy or
retire.
However,
constructively
the
discharged
EEOC
showed
Butcher,
11
not
that
that
the
he
defendants
was
actually
discharged because of his religious objection to the hand scanner
policy.
As
discussed
above,
an
employee
is
“constructively
discharged if an employer deliberately makes the working conditions
of the employee intolerable in an effort to induce the employee to
quit.”
Whitten,
omitted).
601
F.3d
at
248
(internal
quotation
marks
This may be shown by evidence that the employer was
aware of reasonable accommodations but did not offer them to the
plaintiff.
See Crabill, 423 F. App’x at 319-20, 324.
Whether the
defendants’ enforcement of their progressive discipline policy
would have resulted in Butcher’s eventual discharge, even after
arbitration through the grievance process, has no bearing on
whether the defendants deliberately denied Butcher a religious
accommodation.
Thus, the grievance process is irrelevant to
whether Butcher was constructively discharged.
Second, the defendants argue that the evidence was relevant to
whether they provided a reasonable accommodation.
The defendants
argue that the grievance process showed the parties expected that
the grievance process would be the means by which a reasonable
accommodation would be created.
However,
the
evidence
shows
that
Butcher’s
constructive
discharge was complete before the grievance process would have
applied to an attempt to discharge Butcher. The defendants refused
to grant Butcher an accommodation before he could be discharged.
Thus,
the
grievance
process
could
12
not
serve
as
part
of
the
defendants’
Butcher.
attempt
to
provide
a
reasonable
accommodation
to
To prove constructive discharge, a claimant is not
required to endure an intolerable work environment until their
employer attempts to discharge them. Whitten, 601 F.3d at 248. If
the claimant requested a religious accommodation, and the employer
was aware of available accommodations, but refuses to grant an
accommodation to the claimant, the claimant has been constructively
discharged.
See Crabill, 423 F. App’x at 319-20, 324.
The
claimant need not wait to be discharged for noncompliance with an
employment requirement that conflicts with his religious beliefs.
Even
if
Butcher
waited
until
the
defendants
sought
to
discharge him, filed a grievance, and the arbitrator ordered the
defendants to provide Butcher with a particular accommodation,
Title
VII
requires
an
employer
to
provide
a
reasonable
accommodation when requested by the employee, not to provide a
reasonable accommodation when ordered to do so by an arbitrator or
some other tribunal.
Thus, Butcher’s ability to file a grievance
if the defendants attempted to discharge him for failure to comply
with the hand scanner policy is completely irrelevant to the issue
of whether the defendants constructively discharged Butcher by
refusing to grant him a reasonable accommodation.
Third,
the
defendants
argue
that
Butcher’s
right
to
arbitration under the collective bargaining agreement was relevant
because Title VII claims may be arbitrated.
13
While arbitration
provisions covering Title VII claims in collective bargaining
agreements are enforceable, see Austin v. Owens-Brockway Glass
Container, 78 F.3d 875 (4th Cir. 1996), such agreements must
clearly and unmistakably state that those particular statutory
rights are subject to mandatory arbitration. Carson v. Giant Food,
Inc., 175 F.3d 325, 331 (4th Cir. 1999).
The
agreement
defendants
did
not
concede
require
that
the
arbitration
collective
of
Title
bargaining
VII
claims.
Further, the UMWA filed a grievance on Butcher’s behalf after he
retired, but withdrew the grievance because it concluded that the
collective
bargaining
discrimination claims.
agreement
did
not
cover
religious
ECF No. 68-1 at 127, 130, 134; ECF No.
68-15; ECF No. 68-10 at 104-28; ECF No. 68-16 at ¶¶ 4-5.
Thus, the
grievance process could not have resulted in Butcher getting an
accommodation.
Even
if
Butcher’s
religious
discrimination
claim
was
arbitrable under the collective bargaining agreement, his claim
would be ripe only after the defendants failed to provide a
reasonable accommodation.
So arbitrating a claim for failure to
accommodate could never serve as an accommodation. The arbitration
could serve only as a different forum for Butcher to bring his
already ripe religious discrimination claim against the defendants.
Fourth,
the
defendants
argue
that
the
grievance
process
evidence was admissible to impeach Butcher’s testimony that he had
14
no option but to comply or retire. This argument fails because the
grievance process did not contradict Butcher’s statement.
Butcher
stated that he believed his only options were to comply with the
hand scanner policy, fail to comply and face discharge, or retire.
ECF No. 141 at 88.
The fact that he could have filed a grievance
before being threatened with discharge does not affect whether he
felt the need to retire in the face of the defendants denying him
a reasonable accommodation to the hand scanner policy.
Fifth, the defendants argues that the EEOC failed to object to
the admission of the grievance process evidence by commenting to
the jury on the grievance process in opening statements, by
questioning Butcher about it, by failing to object to defense
counsel’s reference to it during opening statements, and by failing
to object to its use in the defendants’ cross-examination of
Butcher.
However, the EEOC was not required to object to any portion of
Butcher’s testimony regarding the grievance process because it had
already filed a motion in limine to exclude that evidence.
This
Court held that motion under consideration until ruling on it after
Butcher completed his testimony.
The EEOC did not waive its
objection to the admissibility of evidence about the grievance
process by complying with this Court’s directions.
Finally, any probative value of the grievance process evidence
was substantially outweighed by the risk of confusing the issues
15
and misleading jury.
See Fed. R. Evid. 403.
Such evidence likely
would have misled the jury regarding an employer’s obligations
under Title VII, and likely would have confused the issues by
injecting a factual question and speculation as to the potential
outcome of any arbitration of Butcher’s claim.
Thus, this Court
properly excluded the grievance process evidence.
2.
Denial of Motion for Mistrial
The defendants moved for a mistrial after this Court granted
the
EEOC’s
evidence.
motion
in
limine
regarding
the
grievance
process
This Court denied that motion, concluding that a
curative jury instruction would adequately prevent unfair prejudice
to the defendants. This Court instructed the jury to disregard all
mention of the grievance process because it was irrelevant.
The
defendants argue that the exclusion of the grievance process
evidence and the jury instruction to disregard that evidence
prejudiced the defendants by “directly advising the Jury that
defendants’
position
in
opening
statement[s]
and
in
cross
examination of the claimant were not relevant or supported by law.”
ECF No. 179 at 16.
The
mistrial.
exclusion
of
evidence
alone
is
not
a
ground
for
a
The jury is presumed to have followed this Court’s
curative instruction.
Nichols v. Ashland Hosp. Corp., 251 F.3d
496, 501 (4th Cir. 2001).
This Court’s curative instruction was
neutral and appropriate, and the defendants fail to demonstrate
16
that they were unfairly prejudiced by this Court’s exclusion of the
irrelevant grievance process evidence.
3.
Jury Instructions
The defendants argue that this Court erred in denying some of
its proposed jury instructions.
The defendants argue that this
Court should have given these instructions because the defendants
offered evidence from which the jury could draw a reasonable
inference
as
instruction.
to
their
theory
of
the
case
regarding
each
However, each of this Court’s instructions were
legally correct and substantially covered the defendants’ proposed
instructions.
Courts have “considerable discretion in choosing the specific
wording of [jury] instructions.”
Figg v. Schroeder, 312 F.3d 625,
640 (4th Cir. 2002) (internal quotation marks omitted). A judgment
may be reversed for failure to “give an instruction proposed by a
party only when the requested instruction (1) was correct; (2) was
not substantially covered by the court’s charge to the jury; and
(3) dealt with some point in the trial so important, that failure
to give the requested instruction seriously impaired that party’s
ability to make its case.”
Noel v. Artson, 641 F.3d 580, 576-87
(4th Cir. 2011) (internal quotation marks omitted).
Further a
determination of whether an instruction, or failure to instruct,
was prejudicial is “based on a review of the record as a whole.”
Id. (internal quotation marks omitted).
17
“The test of adequacy of
instructions . . . is not one of technical accuracy in every
detail.”
Spell v. McDaniel, 824 F.2d 1380, 1395 (4th Cir. 1987).
Rather, it is a practical examination of “whether the instructions
construed as a whole, and in light of the whole record, adequately
informed the jury of the controlling legal principles without
misleading or confusing the jury to the prejudice of the objecting
party.”
Id.
a.
Proposed Instruction No. 2
The defendants argue that this Court denied the following part
of their proposed Instruction No. 2:
An employer need not provide an employee with his
preferred accommodation, and there is no legal
requirement that an employer choose any particular
reasonable accommodation. So long as the employer has
offered a reasonable accommodation, it has satisfied its
duty under Title VII.
ECF No. 179 at 20-21.
The defendants argue that this instruction
should have been given because the defendants’ defense theory was
that they offered a reasonable accommodation in the form of
allowing Butcher to scan his left hand palm up.
However, this Court’s instruction included the defendants’
proposed language:
If you find by a preponderance of the evidence that
the employer provided a reasonable accommodation to Mr.
Butcher, your verdict shall be for the defendant
employer. An employer need not provide an employee with
his preferred accommodation, and there is no legal
requirement that an employer choose any particular
reasonable accommodation. So long as the employer has
offered a reasonable accommodation, it has satisfied its
duty under Title VII.
18
ECF No. 143 at 82 (emphasis added).
This instruction was legally
correct and did not unfairly prejudice the defendants in any way.
b.
Proposed Instruction No. 5
This Court denied the defendants’ proposed Instruction No. 5,
which provided:
In reaching your verdict on the EEOC’s religious
discrimination claim, you should keep in mind that the
law requires only that an employer not discriminate
against an employee based on his religion. The law does
not require an employer to use good judgment, to make
correct decisions, or even to treat its employees fairly.
Title VII is not violated by the exercise of erroneous or
even illogical business judgment. Therefore, in deciding
the Plaintiff’s discrimination claim, it is not your
function to second-guess the employer’s business
decisions or act as a personnel manager, unless you find
that the decisions were motivated, in whole or in part,
by illegal religious discrimination.
ECF No. 179 at 21.
The defendants argue that the evidence showed
that they exercised their business judgment in implementing the
hand scanner policy, and that their proposed instruction would have
allowed
the
jury
to
determine
that
the
defendants
had
no
discriminatory intent in implementing the policy, but did so to
increase safety and save on payroll.
This Court gave the following instruction:
In reaching your verdict on the EEOC’s religious
discrimination claim, you should keep in mind that the
law requires only that an employer not discriminate
against an employee based on his religion. The law does
not require an employer to make correct or fair
decisions.
Therefore, in deciding the plaintiff’s
discrimination claim, it is not your function to
substitute your judgment for that of the employer.
19
ECF No. 143 at 83.
the
standard
by
This instruction clearly and correctly stated
which
employment decisions.
293,
298-99
(4th
a
jury
should
evaluate
an
employer’s
See DeJarnette v. Corning, Inc., 133 F.3d
Cir.
1998)
(noting
that
“when
an
employer
articulates a reason for discharging the plaintiff not forbidden by
law, it is not our province to decide whether the reason was wise,
fair, or even correct”); Jiminez v. Mary Washington Coll., 57 F.3d
369, 376 (4th Cir. 1995) (noting that a court does not “sit as a
‘super personnel council’ to review” employment decisions (internal
quotation marks omitted)).
Further, it substantially covered the
substance of the defendants’ proposed instruction.
Thus, the
defendants were not unfairly prejudiced.
c.
Proposed Instruction No. 8
The defendants argue that this Court erred in denying their
proposed
Instruction
provided:
No.
8
regarding
nominal
damages,
which
“If you return a verdict for the plaintiff, but find
that the Plaintiff has failed to prove that Mr. Butcher suffered
any damages, then you must award the plaintiff the nominal amount
of $1.00.”
ECF No. 179 at 22.
This Court provided two sets of instructions to the jury on
compensatory damages.
Initially, this Court instructed the jury
that:
Compensatory damages are distinct from the amount of
wages that Mr. Butcher would have earned, either in the
past or the future, if he had continued in employment
with defendants.
Under the applicable law, the
20
determination of lost wages is for this Court to
determine at a later time and, therefore you will not be
asked to decide lost wages. You should not consider the
issue of lost wages in your deliberations.
. . .
The mere fact that I have given you instructions on
the law of the recovery of damages does not imply or
suggest that the Court believes that any damages are due.
Whether or not damages are due is for you to decide.
Instructions as to the measure of damages are only given
for your guidance in the event that you should find in
favor of the plaintiff from a preponderance of the
evidence in the case.
ECF No. 143 at 91.
This Court also instructed the jury that: “If
you reach a certain point in the verdict, there is a line for you
to state, if applicable, the amount of compensatory damages that
you have found.”
ECF No. 143 at 98.
After the jury returned the
verdict form stating compensatory damages as “salary plus bonus &
pension, court cost,” ECF No. 125-2, the EEOC requested that this
Court reinstruct the jury concerning compensatory damages and
direct the jurors to continue deliberations. The defendants argued
that this Court should accept the verdict as an award of no
compensatory damages, or to instruct the jury on nominal damages.
This Court then reminded the jury that lost wages and similar
equitable damages were to be determined by the Court not the jury,
and asked the jury to “return to the jury room and considering the
instructions which you have and considering all the instructions,
determine whether or not you would award compensatory damages, if
any.”
ECF No. 143 at 112-14 (emphasis added).
21
This Court also
noted
that
the
direction
to
continue
deliberations
did
“not
indicate [the Court’s] feelings as to the amount of damages or
whether . . . compensatory damages should be awarded.” Id. at 11314.
After further deliberation, the jury returned a verdict for
$150,000 in compensatory damages.
As requested by the defendants,
this Court then asked the jury if its award “include[d] any amount
for salary, bonus, pension, or court costs,” and the jury stated
that it did not include such damages.
Id. at 118.
The defendants argue that the jury’s first verdict indicates
that it found no actual damages.
Because this Court refused to
give a nominal damages instruction, the defendants argue, the
jury’s initial award indicated that it found no compensatory
damages.
However,
this
Court’s
initial
instruction
to
the
jury
correctly stated the law on determining compensatory damages, and
correctly instructed the jury that it was not to consider lost
wages.
The instructions adequately informed the jury that it
should not award damages if it did not find a basis for damages.
Further, this Court’s supplemental instructions in reinstructing
the jury accurately reminded the jury that it should not award
compensatory damages if it did not find a basis for them, and the
jury specifically stated that its second award did not “include any
amount for salary, bonus, pension, or court costs.” ECF No. 143 at
118.
Thus, in light of the entire record, any inaccuracy in this
22
Court’s
damages
instructions
did
not
unfairly
prejudice
the
defendants because the jury understood that it would not award
compensatory damages if it did not find a basis for them.
d.
Proposed Supplemental Instruction No. 4
The defendants argue that this Court erred in denying the
defendants’
proposed
Supplemental
Instruction
No.
4,
which
provided:
An employee may not be unreasonably sensitive to his
working environment.
Every job has its frustrations,
challenges and disappointments; these are inherent in the
nature of work.
An employee is protected from a
calculated effort to pressure him into resignation
through the imposition of unreasonably harsh conditions,
in excess of those faced by his coworkers . . . . A
reasonable employee should pursue all internal grievance
procedures before making the decision to resign.
Constructive discharge is difficult to show if the
alleged intolerable conditions lasted only for a short
time. An employee is expected to remain employed while
seeking redress of a grievance.
ECF No. 179 at 23.
The defendants argue that the EEOC failed to
prove constructive discharge because Butcher abruptly retired after
turning down an accommodation, without pursuing other options
available to him, and that the evidence tended to show that Butcher
was unreasonably sensitive to his working environment.
This
Court
gave
the
following
instruction
regarding
intolerability of working conditions:
Intolerability of the working conditions is assessed
by the objective standard of whether a reasonable person
in the employee’s position would have felt compelled to
resign.
An employee is not guaranteed a working
environment free from stress. It is the obligation of an
employee not to assume the worst and not to jump to
23
conclusions too quickly. An employee who quits without
giving his employer a reasonable chance to work out a
problem has not been constructively discharged.
ECF No. 143 at 86.
standard
for
This Court’s instruction correctly stated the
determining
whether
working
conditions
were
intolerable. See Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255
(4th Cir. 1985) (concluding that an employee cannot be unreasonably
sensitive
to
his
work
environment).
The
substance
of
the
defendants’ proposed instruction that is supported by case law was
covered by this Court’s proper instruction, and the defendants were
not unfairly prejudiced.
4.
Refusal to Accept the Initial Jury Verdict
The jury form instructed the jury to “[s]tate the amount of
compensatory damages you award,” and the jury returned a verdict
stating “salary plus bonus & pension, court cost.”
ECF No. 125-2.
The EEOC requested that this Court reinstruct the jury concerning
compensatory
damages
and
direct
the
jurors
to
continue
deliberations. The defendants argued that this Court should accept
the verdict as is, and that the jury had awarded no compensatory
damages.
This Court noted that its initial instructions to the
jury stated that compensatory damages were “distinct from the
amount of wages that [] Butcher would have earned . . . if he had
continued in employment with [the] defendants,” and that the jury
“should not consider the issue of lost wages.”
ECF No. 143 at 91.
This Court reminded the jury that lost wages and similar damages
24
were to be determined by the Court not the jury, and asked the jury
to “return to the jury room and considering the instructions which
you have and considering all the instructions, determine whether or
not you would award compensatory damages, if any.”
112-14.
ECF No. 143 at
This Court also noted that the direction to continue
deliberations did “not indicate [the Court’s] feelings as to the
amount of damages or whether . . . compensatory damages should be
awarded.”
ECF No. 143 at 113-14.
After further deliberation, the
jury returned a verdict for $150,000 in compensatory damages.
As
requested by the defendants, this Court then asked the jury if its
award “include[d] any amount for salary, bonus, pension, or court
costs,” and the jury stated that it did not award such damages.
ECF No. 143 at 118.
The defendants argue that this Court erred under Rule 49(b) in
directing
the
jury
to
continue
deliberations
damages after returning the first verdict form.
on
compensatory
They argue that
the first verdict form indicated that the jury intended to award no
compensatory damages, that such a finding was not inconsistent with
a finding of liability, and that this Court could not direct
further deliberations without calling for an inconsistent verdict.
Under Federal Rule of Civil Procedure 49(b)(3), if the jury’s
answers to special interrogatories are consistent with each other
but inconsistent with the general verdict, the court may: (a) enter
the judgment in accordance with the answers; (b) direct the jury to
25
further consider its answers and verdict; or (c) order a new trial.
Fed. R. Civ. P. 49(b)(3).
Similarly, if the jury’s answers are
inconsistent with each other and the general verdict, the court may
direct the jury to continue deliberations, or order a new trial.
Fed. R. Civ. P. 49(b)(4).
But, the court also has discretion to
determine whether a “verdict reflects jury confusion or uncertainty
[and] . . . has a duty to clarify the law governing the case and
resubmit the verdict for a jury decision.”
Jones v. Southpeak
Interactive Corp. of Del., 777 F.3d 658, 673-74 (4th Cir. 2015)
(internal quotation marks omitted).
Further, a jury’s failure to
fully complete a verdict form according to the court’s instructions
may not result in acceptance of the verdict, but should be dealt
with in the court’s discretion.
Lacurci v. Lummus Co., 387 U.S.
86, 87-88 (1967).
Based on this Court’s instructions to the jury and its initial
damages award, this Court determined that the jury was confused
regarding this Court’s instructions on damages and that the initial
award did not complete the verdict form as to the question of what,
if any, damages should be awarded.
Because of this confusion and
failure to complete the verdict form, this Court had a “duty to
clarify the law governing [damages] . . . and resubmit the verdict
for
a
jury
decision.”
quotation marks omitted).
Jones,
777
F.3d
at
673-74
(internal
Further, after the jury returned from
further deliberations and awarded $150,000 in damages, the jury
26
expressly stated that these damages did not include lost wages or
similar damages.
Thus, the record as a whole indicates that the
jury initially did not understand the instructions on damages, was
reinstructed,
deliberated
accordance with the law.
further,
and
returned
a
verdict
in
This Court did not err in reinstructing
the jury and directing further deliberations.
5.
Exclusion of Evidence Relating to Butcher’s Search for
Employment
At trial, Butcher testified about the economic strain his
early retirement caused.
He also testified about how being a coal
miner was important to him financially and spiritually, as he felt
that he was a sort of pastor to the miners at the Robinson Run
mine.
ECF No. 181 at 104-05.
During their cross-examination of
Butcher, the defendants sought to ask the following: “Now, the one
thing we know is since you are receiving your pension, if you went
back and worked in the coal industry, your pension would be
suspended until you stopped doing that and then you would receive
pension again, right?”
ECF No. 141 at 131.
This Court excluded
that evidence as irrelevant, concluding that Butcher was not
required to seek employment in the coal mining industry to mitigate
his
early
testimony
retirement
was
and
irrelevant
that
as
any
financial
reserved
determination of back pay damages.
for
aspect
this
of
Court’s
ECF No. 141 at 132-33.
such
later
The
defendants now argue that their question was relevant to impeach
27
Butcher’s testimony about the importance to him of being a coal
miner.
Whether Butcher would have to forego his pension benefits if
he took another coal mining job was not relevant to impeach his
testimony about the financial and emotional strain that early
retirement put on him.
searched
for
Nor was it relevant to impeach whether he
employment
after
his
retirement.
Further,
the
question would not impeach Butcher’s testimony that being a coal
miner was spiritually important to him because he felt that he was
a kind of pastor to the miners at the Robinson Run mine.
The
question sought to elicit only testimony about Butcher’s financial
incentives for seeking or not seeking employment in a coal mine.
The issue of financial mitigation was reserved for this Court’s
determination of back pay damages.
Thus, the testimony was
irrelevant to whether Butcher satisfied his duty to mitigate, did
not impeach his testimony regarding emotional harm caused by the
financial strain and spiritual loss of his job, and the risk of
confusing the jury about financial specifics regarding mitigation
substantially outweighed any probative value of the testimony.
Even if the testimony was relevant, the defendants failed to
demonstrate that it was of such importance that its exclusion
resulted in a manifestly unjust verdict.
Viewing the record as a
whole, the jury was not substantially swayed to enter a verdict for
the plaintiff because it did not hear Butcher’s excluded testimony.
28
See Taylor v. Va. Union Univ., 193 F.3d 219, 235 (4th Cir. 1999)
(concluding that evidentiary errors affect a party’s substantial
rights if the judgment was “substantially swayed by the error[s]”
(alteration in original) (internal quotation marks omitted)).
6.
Excessive Verdict
The defendants ask this Court to order a new trial nisi
remittitur, arguing that the award of $150,000 in compensatory
damages was unsupported by the evidence.
“Under Rule 59(a) of the
Federal Rules of Civil Procedure, a court may order a new trial
nisi remittitur if it concludes that a jury award of compensatory
damages is excessive.”
marks omitted).
Jones, 777 F.3d at 672 (internal quotation
A court should order a new trial nisi remittitur
if “the jury’s verdict is against the weight of the evidence or
based on evidence which is false.” Sloane v. Equifax Info. Servs.,
LLC, 510 F.3d 495, 502 (4th Cir. 2007) (internal quotation marks
omitted).
Whether to grant such a new trial is “entrusted to the
sound discretion of the district court.”
Id. (internal quotation
marks omitted).
Here, the jury’s award was supported by Butcher’s testimony
and his wife’s testimony about the effect of his retirement on him
and upon their household.
Mrs. Butcher testified about how the
family’s relationship was detrimentally affected by the financial
and emotional strain of Butcher’s early retirement. ECF No. 142 at
22-24.
She also testified that her husband became depressed and
29
lost thirty to thirty-five pounds.
ECF No. 142 at 23.
Butcher
testified about being angry and about his desperation to find
another job to support his family.
ECF No. 141 at 103-06.
He also
testified about the importance of his relationships with the miners
at the Robinson Run mine, stating how he believed he was a sort of
pastor to the miners there and that he had lost the relationships
he developed during his thirty-five year tenure there. ECF No. 141
at 103-06.
Because the award was supported by the evidence, it is
not excessive.
The defendants further argue that under Jones v. SouthPeak
Interactive Corp., 777 F.3d 658, 672-73 (4th Cir. 2015), this Court
should have compared the damages award to awards in similar cases
in determining if a remittitur is warranted.
The defendants argue
that the verdict should be remitted to no more than $20,000.
However, Jones simply approved the use of the comparative
approach in determining whether a damage award was excessive, but
did not require such analysis.
See Jones, 777 F.3d at 673 (noting
that “[a]fter concluding that the evidence supported an award for
emotional
distress,
the
court
compared
the
jury’s
damages
assessment to awards in comparable cases,” and that this “was a
sound approach”).
Further, the defendants simply assert that this
Court should apply the comparative approach, but do not provide
this Court with any comparable cases or authority to determine
whether the damages award here is excessive.
30
Because the evidence
supports the jury’s damage award, this Court refuses to order a new
trial nisi remittitur.
C. Motion to Amend Findings and Conclusions Regarding Back Pay and
Front Pay Damages
1.
Mitigation Findings and Conclusions
The defendants argue that this Court’s findings regarding
Butcher’s efforts to mitigate damages are not supported by the
evidence.
Specifically, the defendants argue that this Court did
not give enough weight to evidence that coal mining jobs were
available to Butcher and that he took a job in a different industry
to avoid losing his pension benefits.
For the following reasons,
this Court’s findings are supported by substantial evidence.
A Title VII claimant is presumptively entitled to back pay
unless
the
defendant
shows
that
the
claimant
did
not
exert
reasonable efforts to mitigate his damages. Albemarle Paper Co. v.
Moody, 422 U.S. 405, 421 (1975).
The defendant has the burden of
showing that the claimant was not “reasonably diligent in seeking
and accepting new employment substantially equivalent to that from
which he was discharged.”
Brady v. Thurstone Motor Lines, Inc.,
753 F.2d 1269, 1273 (4th Cir. 1985).
To fulfill his duty to
mitigate damages, a claimant “need not go into another line of
work, accept a demotion, or take a demeaning position.”
Id. at
1274 (internal quotation marks omitted) (quoting Ford Motor Co. v.
EEOC, 458 U.S. 219, 231 (1982)).
31
However, “after an extended
period of time searching for work without success, a claimant must
consider accepting suitable lower paying employment in order to
satisfy the duty to mitigate damages.”
Id. at 1275.
Whether a
claimant was reasonably diligent depends upon: (1) the economic
climate; (2) the claimant’s skills and qualifications; (3) whether
the claimant received a substantially equivalent job offer; and (4)
the claimant’s age and personal limitations.
Lundy Packing Co. v.
Nat’l Labor Relations Bd., 856 F.2d 627, 629 (4th Cir. 1988); EEOC
v. CTI Global Solutions, Inc. 815 F. Supp. 2d 897, 914-15 (D. Md.
2011).
A claimant may, in good faith, accept a lower paying job or
a job in another field if his search for similar employment proves
futile.
Brady, 753 F.2d at 1275.
This Court found that Butcher reasonably mitigated his damages
by accepting a lower-paying position in the construction or heavy
equipment industries.
This Court found that the rural economic
climate in which Butcher sought employment likely did not offer
many high-paying employment opportunities, and that Butcher needed
to support his wife and two grandchildren when he was not yet
receiving payments from his retirement benefits. While Butcher has
only a high school education, he was highly skilled in the coal
mining industry, qualifying him for high-paying positions in that
industry.
However, this Court also found that Butcher’s coal
mining skills did not transfer directly to high-paying employment
in other industries, thus, limiting his options for substantially
32
similar employment.
Although Butcher took a position outside of
the mining industry with about a sixty percent income decrease,
Butcher searched for mining jobs at UMWA mines, attended job fairs
in the mining industry and other industries, and applied for a
mining job.
After those attempts failed, Butcher reasonably took
a position in the construction or heavy machinery industry with
lower pay to obtain income at a time when he had none.
The defendants argue that this Court did not give enough
weight to evidence that there were job openings at the CONSOL
Federal No. 2 mine.
However, these openings were available after
Butcher obtained steady employment.
A claimant who “exercised
reasonable diligence to find similar employment, [was] . . . unable
to do so, and then accepts a lower paying job” is not required to
“continue to search for higher paid employment.”
at 1274.
Brady, 753 F.2d
Moreover, the defendants failed to show that Butcher
would have received substantially similar pay at the Federal No. 2
mine, as the evidence indicated that the pay rate could have varied
downward by at least fifty percent. Thus, the defendants failed to
carry their burden to show that Butcher failed to mitigate his
damages.
2.
Lost Pension Benefits
This Court awarded Butcher back pay and front pay damages,
including lost pension benefits.
This Court did not offset these
damages with the pension benefits Butcher had received since his
33
retirement in 2012.
The defendants argue that this Court’s
inclusion of lost pension benefits in front pay damages was
erroneous for two reasons.
First, the defendants argue that this
Court erred in finding that the pension benefits that Butcher has
already received since his retirement were from a collateral source
and should not offset damages.
Second, the defendants ask this
Court to reconsider its calculation of front pay damages, arguing
that the Court’s front pay damages award results in a windfall for
Butcher.
a.
The Collateral Source Rule
A defendant may offset damages with compensation received by
the plaintiff for their injury, but the defendant bears the burden
of showing that it is entitled to an offset to damages.
Sloas v.
CSX Transp., Inc., 616 F.3d 380, 389 (4th Cir. 2010).
However,
compensation a plaintiff receives from a collateral source may not
offset damages.
Id.
“That a benefit comes from the defendant
. . . does not itself preclude the possibility that it is from a
collateral
source.”
Id.
(internal
quotation
marks
omitted).
“[W]hether a given benefit is derived from a collateral source
‘depend[s]
.
.
.
upon
the
exact
nature
of
the
compensation
received.’
If the [defendant] provides a benefit to the plaintiff
‘specifically to compensate him for his injury,’ the benefit does
not constitute a collateral source,” and may be used to offset
damages.
Id. at 390 (second alteration in original) (citation
34
omitted).
“But if the [defendant] does not provide the benefit to
the plaintiff as compensation for his or her injury, the benefit is
from a collateral source and ‘should not be offset against the sum
awarded . . . nor considered in determining that award.’”
Id.
Thus, a benefit is “from a collateral source unless it results from
payments made by the employer in order to indemnify itself against
liability.”
Id. (internal quotation marks omitted).
Moreover,
pension benefits are generally considered to be a collateral source
even if the employer contributed to the fund, because pensions are
“a term of employment rather than an attempt by the employer to
indemnify itself against liability.”
Russo v. Matson Navigation
Co., 486 F.2d 1018, 1020 (9th Cir. 1973); see also U.S. Can Co. v.
Nat’l Labor Relations Bd., 254 F.3d 626, 634 (7th Cir. 2001)
(noting that an “employer would indeed gain from its wrong – and
the employee would lose out – if the employer were allowed to
subtract,
from
the
back-pay
obligation,
pension
and
welfare
benefits that serve as deferred compensation for work performed”);
EEOC v. O’Grady, 857 F.2d 383, 391 (7th Cir. 1988) (noting that
pension benefits are a collateral source because they “may be
viewed as earned by the claimants”); McDowell v. Avtex Fibers, 740
F.2d 214, 217 (3d Cir. 1984) (concluding that pension payments were
a collateral source because they “are designed to serve social
policies independent of those served by back pay awards”), vacated
and remanded on other grounds, 469 U.S. 1202 (1985); Haughton v.
35
Blackships, Inc., 462 F.2d 788, 790 (5th Cir. 1972) (concluding
that a seaman’s pension was a collateral source and should not be
used to offset damages owed by the employer for personal injury).
Under the standard set out in Sloas v. CSX Transportation,
Inc., 616 F.3d 380, 389 (4th Cir. 2010), this Court determined that
the pension benefits Butcher received after retiring were from a
collateral source.
This is because the pension was a term of
Butcher’s employment with the defendants as governed by the UMWA’s
collective bargaining agreement with CONSOL.
Although CONSOL
contributed funds to the pension, it was “a term of [Butcher’s]
employment rather than an attempt by [CONSOL] to indemnify itself
against liability.” Russo, 486 F.2d at 1020. The defendants argue
that this case is factually distinguishable from Sloas, but this is
beside the point.
Applying the standard pronounced in Sloas,
Butcher’s pension is a collateral source.
Sloas does not require
that all collateral sources be factually analogous to the benefits
that court examined; it requires that the benefit not be designed
to indemnify the defendant against the type of liability at issue.
Sloas, 616 F.3d at 390.
Butcher’s pension was designed to provide
for his retirement, not to indemnify the defendants against Title
VII claims.
Nevertheless, the defendants argue that this Court erred in
applying
Sloas
because
an
earlier
case,
Fariss
v.
Lynchburg
Foundry, 769 F.2d 958 (4th Cir. 1985), states that pension benefits
36
already received must offset damages.
However, there is no
question in the Fourth Circuit that Sloas provides the standard for
determining whether a benefit is a collateral source.
v.
Xerox
Corp.,
481
F.
App’x
819,
824-25
(4th
See Hylind
Cir.
2012)
(reaffirming and applying Sloas). Fariss does not purport to apply
the collateral source rule.
In fact, the only mention of the rule
is in a footnote, wherein the court states that “[c]ollateral
benefits are those received from a source distinct from the
employer; they are not offset because they do not discharge an
obligation
of
the
employer,
but
serve
an
independent
social
policy,” Fariss, 769 F.2d at 966 n.10, a statement of the rule that
was rejected by the court in Sloas.
See 616 F.3d at 389 (“That a
benefit comes from the defendant . . . does not itself preclude the
possibility that it is from a collateral source.” ).
Under Sloas a pension is better understood to be from a
collateral source in a Title VII case because the employer “does
not provide the benefit to the plaintiff as compensation for his or
her injury,” id., but is providing a contractual retirement benefit
that the employee was entitled to regardless of the Title VII
violation.
This is in accord with other jurisdictions that have
determined that pensions are from a collateral source.
See U.S.
Can Co., 254 F.3d at 634 (noting that an “employer would indeed
gain from its wrong – and the employee would lose out – if the
employer were allowed to subtract, from the back-pay obligation,
37
pension and welfare benefits that serve as deferred compensation
for work performed”); O’Grady, 857 F.2d at 391 (noting that pension
benefits are a collateral source because they “may be viewed as
earned by the claimants”); McDowell, 740 F.2d at 217 (concluding
that pension payments were a collateral source because they “are
designed to serve social policies independent of those served by
back pay awards”), vacated and remanded on other grounds, 469 U.S.
1202 (1985); Russo, 486 F.2d at 1020 (concluding that a pension was
a collateral source because it was “a term of employment rather
than an attempt by the employer to indemnify itself against
liability”); Haughton, 462 F.2d at 790 (concluding that a seaman’s
pension was a collateral source and should not be used to offset
damages owed by the employer for personal injury).
b.
Whether the Front Pay Damages Award Constitutes a
Windfall for Butcher
With the above understanding of the collateral source rule,
Fariss is actually about preventing a plaintiff from receiving a
windfall.
“The purpose of the collateral source rule is not to
prevent the plaintiff from being overcompensated but rather to
prevent the [defendant] from paying twice.”
389 (internal quotation marks omitted).
O’Grady, 857 F.2d at
“Indeed, its most obvious
effect is that, in the interest of other social policies, it allows
plaintiffs to be made more than whole for wrongs committed against
them.”
Id. at 390.
But, it is within a court’s discretion to
38
determine whether to deduct a collateral source from a back pay
award to prevent a windfall for the plaintiff.
See id. (noting
that “it is clear that a district court has discretion to deduct or
not deduct [pension benefits] from an ADEA back pay award”). Thus,
the question becomes: How does Fariss inform a district court in
determining whether it should deduct pension benefits from a back
pay award?
In Fariss, the district court offset the plaintiff’s back pay
damages with the lump-sum pension payment he received after early
retirement because that pension was greater than any damages the
plaintiff would have received.
Fariss, 769 F.2d at 963-64.
Had
the plaintiff not been forced into retirement, he would not have
received his pension at all because he had declined a survivorship
option for his pension benefits.
Id. at 963.
Thus, a failure to
offset the plaintiff’s damages with his pension benefits would have
resulted in a windfall for him, as he received his pension only
because of his early retirement and his pension was far greater
than his back pay damages.
Id. at 966.
Here, Butcher was entitled
to his pension benefits regardless of whether he retired early.
The amount of benefits he has received since his early retirement
in 2012 do not come close to being greater than Butcher’s back pay
and front pay damages excluding lost pension benefits, which total
$361,544.57.
Including Butcher’s lost pension in his front pay
damages without offsetting for the pension benefits he has already
39
received results in $60,113.48 in additional front pay damages,
hardly a windfall.
Thus, this Court finds that not offsetting
Butcher’s damages with the pension benefits he has already received
will not result in a windfall under Fariss.
The defendants also ask this Court to reconsider its back pay
and front pay damages calculation, arguing that this Court did not
give enough weight to their expert witness Dr. Homayoun Hajiran,
Ph.D., M.B.A. However, Dr. Hajiran’s calculation of Butcher’s back
pay and front pay damages was based on an offset of the amount of
pension benefits Butcher has received since retiring. Because this
Court finds that those benefits are from a collateral source, it
finds that Dr. Hajiran’s calculations are less appropriate than the
EEOC’s expert witness’s calculations.
The defendants’ motion for
reconsideration is denied.
III.
Conclusion
For the foregoing reasons, the defendants’ renewed motion for
judgment as a matter of law, motion for a new trial, and motion to
amend this Court’s findings and conclusions (ECF No. 178) are
DENIED.
Further, this Court notes that it previously entered
judgment in this civil action under Rule 58 on August 25, 2015.
See ECF No. 164.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
40
DATED:
February 9, 2016
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
41
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