Mlsna, Mark v. Union Pacific Railroad

Filing 309

ORDER denying 283 Motion for Judgment as to Plaintiff's Disparate Impact Claim; granting 289 Motion to Conform Jury Award of Compensatory and Punitive Damages to the Statutory Cap; granting in part and denying in part 293 Motion for Aw ard of Damages. Plaintiff's compensatory damage award is REDUCED to $300,000 and his punitive damage award is VACATED. Plaintiff is awarded $752,281.08 in back pay, $222,960.32 in prejudgment interest, and $391,228.62 in front pay, for a total of $1,366,470.02. Signed by District Judge William M. Conley on 8/3/2021. (arw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
MARK MLSNA,
Plaintiff,

OPINION AND ORDER

v.
18-cv-37-wmc
UNION PACIFIC RAILROAD COMPANY,
Defendant.
On July 1, 2021, a jury found in favor of plaintiff Mark Mlsna as to his disparate
treatment and failure to accommodate claims under the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 1210, et seq. Still pending before the court is plaintiff’s Rule 52 as
to his disparate impact claim, which was not presented to the jury, and two remaining
issues with respect to the damages award. The first concerns defendant’s motion to reduce
the jury’s award of almost $4 million in compensatory damages and over $40 million in
punitive damages to the statutory total cap award of $300,000 mandated by 42 U.S.C. §
1981(a)(b)(3)(D); the second is plaintiff’s request for an award of both back pay and front
pay. This opinion will resolve all of these matters, bringing the case to a close.

FINDINGS OF FACT
A. Background, Trial, and Jury Verdict
Having made its way to the Seventh Circuit and back already, this case has a long
history. Briefly, plaintiff Mark Mlsna has a hearing impairment and has worn hearing aids
for over twenty years. Despite this disability, Mlsna was able to work as a thru-freight
train conductor for Union Pacific for nearly a decade. After implementing a new hearing

acuity and conservation policy, however, Union Pacific declined to recertify Mlsna as a
train conductor and held him out of service on January 8, 2015. This court originally
granted summary judgment in defendant’s favor, but after remand and a three-day trial, a
jury found on July 1, 2021, that Union Pacific discriminated against Mlsna because of his
disability and failed to reasonably accommodate his disability, both in violation of his
rights under the ADA. The jury further found that: (1) allowing Mlsna to continue
working would not have posed a direct threat to himself or others in the workplace; and
(2) accommodating Mlsna’s disability would not have imposed an undue hardship on
Union Pacific. Finally, the jury awarded Mlsna $3,670,000 in compensatory damages and
$40,300,000 in punitive damages.

B. FRA Regulations
In 2006, the Federal Railroad Administration (“FRA”) promulgated certain new
regulations requiring railroads to protect the hearing of vulnerable employees by
establishing hearing conservation policies. Among other things, this regulation requires
railroad employees who are exposed to sound levels equivalent to an eight-hour, timeweighted average (“TWA”) of 90 decibels or greater to wear hearing protection. 49 C.F.R.
§ 227.115(c). To measure these decibel levels, railroads are required to conduct dosimetry
testing. 49 C.F.R. § 227.103.
If an employee is required to wear hearing protection, then an employer must offer
employees “a variety of suitable hearing protectors,” including a selection of devices with
a range of attenuation levels. 49 C.F.R. § 227.115(a). Moreover, the railroad must
evaluate the effectiveness of these devices using one of three methods to ensure that they

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attenuate employee noise exposure to an eight-hour TWA of 90 decibels or lower. 49
C.F.R. § § 227.117(a), (b); App. B to Part 277. The first method for estimating the
adequacy of hearing protector attenuation is to derate attenuation using the devices
published Noise Reduction Rating (“NRR”). 49 C.F.R. Pt. 227 App. B. The second
method is to use specific laboratory-based procedures for measuring, analyzing, and
reporting the noise-reducing capabilities of hearing protection devices set forth by the
American National Standards Institute.

Id.

The third method is to use actual

measurements of the level of noise exposure inside the hearing protector when employees
wear the hearing protector in their actual work environment. Id.
The FRA promulgated additional regulations in 2012 requiring railroads to ensure
that individuals met certain minimum hearing acuity benchmarks before certifying them
as train conductors. Specifically, to be certified as a train conductor, an individual must
“have a hearing test or audiogram that shows . . . [t]he person does not have an average
hearing loss in the better ear greater than 40 decibels with or without use of a hearing aid,
at 500 Hz, 1,000 Hz, and 2,000 Hz.” 49 C.F.R. § 242.117(i)(3)(i). A person who fails
this hearing test may still be certified as a conductor, however, with or without “special
restrictions,” “[i]f, after consultation with a railroad officer, the medical examiner
concludes that . . . the person has the ability to safely perform as a conductor.” 49 C.F.R.
§§ 242.117(j); 242.117(c)(2). Although the railroad is initially responsible for certifying
train conductors, an individual may appeal a certification denial to the FRA Operating
Crew Review Board. 49 C.F.R. § 242.501.

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Importantly, both the FRA hearing conservation regulation and the conductor
certification regulation set only “minimum” standards, and railroads are not prohibited
from adopting more stringent requirements. See 49 C.F.R. § 227.1 (“This part prescribes
minimum Federal health and safety noise standards . . . . This part does not restrict a
railroad . . . from adopting and enforcing additional or more stringent requirements.”); §
242.1(b) (“This part prescribes minimum Federal safety standards for the eligibility,
training, testing, certification and monitoring of all conductors to whom it applies. This
part does not restrict a railroad from adopting and enforcing additional or more stringent
requirements consistent with this part.”).

C. Union Pacific’s Policies
In 2013, Union Pacific did just that by creating and implementing an employee
hearing conversation policy with more stringent requirements than those set forth in the
FRA regulations. Under its policy, all employees, including conductors, are required to
wear approved hearing protection in identified areas demarcated by signs and whenever
they are within 150 feet of a locomotive, unless they are inside the locomotive’s cab with
the doors and windows closed.
Union Pacific also provides all employees working in these areas with hearing
protection, including conductors. Consistent with FRA regulations, employees are offered
a variety of approved devices to choose from, although Union Pacific approved only one
Amplified Hearing Protection Device (“AHPD”) -- the “Pro Ears - Gold.” An AHPD is an
electronic, ear-muff-style hearing protector designed to both amplify ambient sound and
block harmful noise. Employees are not permitted to wear hearing aids under hearing

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protection, nor are other hearing aids permitted in areas where hearing protection is
required.
In addition, Union Pacific prohibits the use of -- and will not approve -- any hearing
protection device that does not include an NRR from the manufacturer. Union Pacific
also prohibits custom earplugs as hearing protection.

As for the hearing acuity

requirements, Union Pacific requires all conductors to have a minimum hearing threshold
in the better ear of 40 decibels or less (at 500, 1000, and 2000 hertz), either with unaided
hearing or when using a Union Pacific-approved AHPD.

D. Union Pacific Declines to Recertify Mlsna as a Train Conductor
On December 18, 2014, Mlsna sat for his first, required hearing exam.1 Mlsna’s
hearing was tested under four conditions: (1) without hearing aids and without hearing
protection; (2) with hearing aids and without hearing protection; (3) without hearing aids
but wearing an AHPD with the volume turned off; (4) without hearing aids but wearing
an AHPD with the volume turned all the way up. Because Mlsna only met the 40 decibel
hearing acuity threshold under the second scenario, Union Pacific then initiated a fitnessfor-duty determination. At Union Pacific’s direction, Mlsna visited an audiologist on
January 8, 2015, who tested Mlsna under the same four conditions as before. Again, Mlsna
only met the hearing acuity threshold with his hearing aids and without hearing protection.

The FRA hearing acuity regulations “grandfathered in” current conductors for 36 months; thus,
Mlsna had to complete his hearing certification test by February 2015.
1

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The audiologist additionally tested Mlsna while he was wearing both the Pro Ears-Gold
and his hearing aids; Mlsna also met the acuity threshold using this configuration.
Based on these test results, Union Pacific concluded that Mlsna could not be
certified as a conductor and could not continue working for Union Pacific in that capacity.
After he was removed from service on January 8, 2015, Mlsna contacted Union Pacific’s
director of disability management to explore possible accommodations for his disability.
In

particular,

Mlsna asked whether

a

custom-made,

hearing-protection

device

manufactured by EAR Primo would work. Union Pacific rejected the EAR Primo because
it lacked an NRR from the manufacturer. Ultimately, no accommodation acceptable to
Union Pacific was identified.
Mlsna later appealed Union Pacific’s decertification decision to the FRA Operating
Crew Review Board, which decided on June 4, 2019, that Union Pacific’s denial was
improper, explaining that the FRA hearing acuity standards may be met with use of a
hearing aid. After this decision, Mlsna and Union Pacific entered into a confidential
settlement agreement.

Ultimately, Union Pacific reinstated Mlsna’s conductor

certification under the FRA standards, but still refused to return him to his previous job
on the grounds that Mlsna did not meet Union Pacific’s more stringent hearing acuity and
hearing conservation policies.
To support his disparate impact claim, plaintiff produced a spreadsheet from 2010
showing the audiology data of Union Pacific’s employees. Although the spreadsheet was
discussed at the final hearing with respect to plaintiff’s disparate impact claim and
damages, and the proper foundation appears to have been laid for its admission (Trial Tr.

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June 29, 2021, afternoon session (dkt. #301) 110-16), it was never formally admitted at
trial. (Trial Tr. July 1, 2021 (dkt. #303) 3.) Nevertheless, while appearing to have limited
relevance to plaintiff’s disparate impact claim, the court will reopen the factual record to
admit this spreadsheet formally into evidence.

OPINION
I. Disparate Impact Claim
Although plaintiff’s disparate treatment and failure to accommodate claims have
already been presented to and resolved by a jury, his disparate impact claim was reserved
for decision by the court.2 (Dkts. #218, 271.)

Here, to the extent that the claims

presented to the jury involved common factual issues to the disparate impact claim
presented to the court, the court must respect both the facts explicitly found by the jury,
as well as “findings implied by the jury's verdict.” Pals v. Schepel Buick & GMC Truck, Inc.,
220 F.3d 495, 501 (7th Cir. 2000). For those issues not determined by the jury, however,
it is the court’s obligation as trier of fact to weigh the evidence presented and set forth its
factual findings and conclusions of law. Fed. R. Civ. P. 52(a)(1); Khan v. Fatima, 680 F.3d
781, 785 (7th Cir. 2012).

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As the court had previously explained, jury trials do not appear to be available for ADA disparate
impact claims. 7th Cir. Civ. Jury Instructions § 3.08 (2017) (“The Committee did not include a
disparate impact instruction because there are no jury trials under Title VII for disparate impact,
42 U.S.C. § 1981a(a)(1) & (c).”); Gaffney v. Riverboat Servs. of Indiana, Inc., 451 F.3d 424, 460 n.35
(7th Cir. 2006) (explaining that the remedies for violations of Title VII and the ADA are both
found in the 1964 Civil Rights Act, 42 U.S.C. § 1981a(a)(1) & (c)); 3d Cir. Civ. Jury Instructions
§ 9.1.6 (2018) (“Disparate impact claims are cognizable under the ADA. . . . No instruction is
provided on disparate impact claims, however, because a right to jury trial is not provided under
the ADA for such claims.”).

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Under the ADA, it is unlawful for an employer to use “qualification standards,
employment tests or other selection criteria that screen out or tend to screen out an
individual with a disability or a class of individuals with disabilities unless the standard,
test or other selection criteria, as used by the covered entity, is shown to be job-related for
the position in question and is consistent with business necessity.”

42 U.S.C. §

12112(b)(6). Such a claim is referred to as a “disparate impact” discrimination claim.
Raytheon Co. v. Hernandez, 540 U.S. 44, 52 (2003). Under a disparate impact theory of
liability, an employment practice may be deemed unlawful “without evidence of the
employer’s subjective intent to discriminate.” Id. at 52-53.
In Roberts v. City of Chicago, 817 F.3d 561 (7th Cir. 2016), one of the few Seventh
Circuit cases addressing a disparate impact claim brought under the ADA, the court
indicated that a plaintiff must show that the challenged standard “‘caused a relevant and
statistically significant disparity between’ disabled and non-disabled applicants.” Id. at
566 (quoting Adams v. City of Indianapolis, 742 F.3d 720, 733 (7th Cir. 2014)). Here,
plaintiff has failed to produce any evidence of an adverse action against any employee other
than himself. In particular, plaintiff’s spreadsheet from 2010 is of little help, since all it
purports to show is the audiology test results of Union Pacific’s employees without
connecting these scores to any adverse action against hearing impaired employees.
Moreover, that data pre-dates Union Pacific’s 2013 hearing conversation policy that
impacted Mlsna, and so, it provides no information as to any disparate impact that policy
may have on other individuals with a hearing disability.

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Plaintiff argues in part that he need not produce statistical proof of a disparate
impact if the discrimination is “evident from the face of Union Pacific’s policies.” (Pl.’s
Br. (dkt. #284) 29.) However, to the extent that this may be true, a facially discriminatory
claim would appear more properly framed as a matter of disparate treatment, rather than
disparate impact. See Valencia v. City of Springfield, Illinois, 883 F.3d 959, 965 (7th Cir.
2018) (“[C]ases involving facially discriminatory statutes present cases of disparate
treatment, not disparate impact.”) (citing Larkin v. Mich. Dep't of Soc. Servs., 89 F.3d 285,
290 (6th Cir. 1996)). Since plaintiff has already prevailed on his disparate treatment
claim, the court obviously need not relitigate it here, and absent actual evidence that Union
Pacific’s policy affected any individual with disabilities other than Mlsna, will deny his
disparate impact claim.

II. Damages
A. Compensatory and Punitive Damage Award
The ADA imposes a cap on compensatory and punitive damages depending upon
the number of employees the defendant employs. 42 U.S.C. § 1981a(b)(3). Here, because
Union Pacific has more than 500 employees, the parties agree that the applicable cap is
$300,000 despite the jury’s award of almost fifteen times that amount. However, the ADA
“contains no command as to how a district court is to conform a jury award to the statutory
cap,” Jonasson v. Lutheran Child & Fam. Servs., 115 F.3d 436, 441 (7th Cir. 1997), and the
Seventh Circuit has previously “upheld a decision that took the entire cut out of the award
of punitive damages and another that took the entire cut out of the award of compensatory

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damages.” Lust v. Sealy, Inc., 383 F.3d 580, 589 (7th Cir. 2004) (citing Gile v. United
Airlines, Inc., 213 F.3d 365, 371, 376 (7th Cir. 2000) and Jonasson, 115 F.3d at 441). Still,
in Lust, the Seventh Circuit has suggested helpfully that “probably the sensible thing for a
judge to do is . . . determine the maximum reasonable award of compensatory damages,
subtract that from [the statutory cap], and denote the difference [as] punitive damages.”
Id. See also Arroyo v. Volvo Grp. N. Am., LLC, No. 12-CV-6859, 2017 WL 2985649, at *4
(N.D. Ill. July 13, 2017) (in ADA case, reducing $2.6 million compensatory damage award
to $300,000 and vacating $5.2 million punitive damage award); Alford v. Aaron's Rents, Inc.,
No. 08-CV-0683-MJR, 2011 WL 2669626, at *2 (S.D. Ill. July 7, 2011) (reducing $4
million compensatory damage award to $300,000 and vacating $50 million punitive
damage award).
Following this guidance, the “sensible thing” in this case is unquestionably to apply
the jury's compensatory award toward the entire statutory cap. Indeed, a compensatory
damage award at the $300,000 cap does not even cover a tenth of the jury’s award of
$3,670,000 in compensatory damages. Because that award exhausts the entire $300,000
limit, the court must vacate the jury’s punitive damage award.

B. Back pay and Front pay
The court next turns to the issue of back pay and front pay.3

Plaintiff seeks

$582,940.74 for the six-and-a-half years past wage loss between the time Mlsna was

Because back pay and front pay under the ADA are equitable remedies to be decided by the court,
they were neither by considered nor submitted to the jury. See Pattern Civil Jury Instr. 7th Cir. §
3.10.
3

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removed from service and the jury returned its verdict, as well as $493,257.55 for future
wage loss assuming he were to work to his stated goal of 74 years old. Plaintiff also seeks
$319,715.37 for the value of past benefits lost and $270,528.39 for the value of future
benefits. Finally, he seeks $246,446.45 in prejudgment interest.
1. Back Pay
As the Seventh Circuit has explained, “[c]omplete relief for a victim of
discrimination generally will include an award of back pay; indeed, such an award is
presumptively proper once a violation has been shown.” EEOC v. Ilona of Hungary, Inc.,
108 F.3d 1569, 1580 (7th Cir. 1997). Still, “the plaintiff has the burden of proving the
damages caused her.” Horn v. Duke Homes, Div. of Windsor Mobile Homes, Inc., 755 F.2d
599, 606 (7th Cir. 1985).4 Back pay does not have to be calculated with unrealistic
exactitude, and uncertainties in the calculations may be resolved against the discriminating
employer. Stewart v. General Motors Corp., 542 F.2d 445, 452 (7th Cir. 1976); Ortega v.
Chicago Bd. of Educ., 280 F. Supp. 3d 1072, 1092-93 (N.D. Ill. 2017). For the reasons
discussed below, the court concludes that Mlsna is owed 6.48 years of back pay at a wage
rate of $89,683.19 per year and a benefit rate of $26,409.57 per year, totaling an award
of $752,281.08 in back pay. Except for the wage rate, defendant disputes some aspect of
almost every component of plaintiff’s claim; these issues are addressed separately below.

Although the general burden is on the plaintiff to prove damages, it is the defendant’s burden to
prove that the plaintiff failed to mitigate damages. Ilona of Hungary, Inc., 108 F.3d at 1581. Here,
defendant has not argued that Mlsna’s award should be reduced because of a failure to mitigate,
and so the court need not address that question.
4

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a. Wage Rate
As a preliminary matter, plaintiff has produced evidence showing that Mlsna earned
$82,210.51 in the twenty-two, bi-monthly pay periods immediately before Union Pacific
removed him from service. Thus, his average pay per period was $3,736.84 and his average
yearly wage at the time of his termination was $89,683.19, which plaintiff uses to calculate
Mlsna’s lost wages.
b. Benefit Rate
Because benefits “are an integral part of an employee's compensation package,” the
value of those benefits may also be recoverable as a part of a backpay award. Graefenhain
v. Pabst Brewing Co., 870 F.2d 1198, 1212 (7th Cir. 1989); see also EEOC v. Accurate Mech.
Contractors, Inc., 863 F. Supp. 828, 837 (E.D. Wis. 1994) (“Backpay awards . . . should
include fringe benefits that the claimant would have received absent the employer’s
discrimination.”). This court has held that the proper measure of lost benefits is not based
on the amount that would have been paid by the employer. Barnes v. Dep't of Corr., No.
18-CV-105-JDP, 2020 WL 94799, at *3 (W.D. Wis. Jan. 8, 2020) (citing Gunter v. Bemis
Co., Inc., 906 F.3d 484, 493 (6th Cir. 2018); Lubke v. City of Arlington, 455 F.3d 489, 499
(5th Cir. 2006); EEOC v. Farmer Bros. Co., 31 F.3d 891, 902 (9th Cir. 1994)). Rather, to
obtain an award for lost benefits, a plaintiff must adduce evidence of actual replacement
costs or expenses that would have been covered under the benefits policy. Id.
To support his claim for benefits, plaintiff has produced a document which
enumerates various categories of benefits and shows that the fringe benefits “paid by the
carrier” amounted to $49,186.98 per year. Defendant contests Mlsna’s claim to some of

12

the categories of benefits included in this figure -- namely, unemployment and health,
dental, and vision coverage -- on the grounds that plaintiff has failed to offer evidence of
the amount of actual costs, if any, he incurred that might otherwise have been covered
under Union Pacific’s benefit plan. In fact, Mlsna was only in the process of switching
from his wife’s health care plan to Union Pacific’s plan at the time he was held from service.
Thus, defendant’s requested reduction is appropriate.

Since plaintiff has only

demonstrated the amount that would have been paid by Union Pacific for his
unemployment and health, dental, and vision coverage, rather than any unnecessary costs
he incurred by not being able to switch coverage (or savings he might have enjoyed), he
has produced no evidence supporting an award for this coverage.
Presumably because the remaining claimed benefits would have been directly
received by an employee, defendant does not challenge Mlsna’s receipt of lost railroad
retirement benefits, vacations, holidays, and “other” benefits. Given defendant’s lack of
objection, the court agrees that the value of these benefits -- amounting to $26,409.57 per
year -- are owed to Mlsna.
c. Duration
Union Pacific removed Mlsna from his position on January 8, 2015, and the jury
returned its verdict on July 1, 2021. According to Mlsna, this means that he is owed nearly
six-and-a-half years of past wage and benefit loss. Defendant, however, argues that Mlsna’s
claim must be cut off much earlier because of: (i) Mlsna’s railroad disability benefits
application and (ii) two unexplained episodes in which Mlsna has since lost consciousness.
As discussed below, defendant’s arguments are not persuasive, and so the court concludes

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that the proper backpay period is the 6.48 years between January 8, 2015, and July 1,
2021.
i.

Railroad disability benefits application

After Mlsna was held out of service by Union Pacific, he filed an application for
railroad disability benefits (“RDB”). The application form asked if Mlsna’s conditions
“prevent [him] from working now,” to which Mlsna responded, “Yes.” (Def.’s Trial Ex.
507 at 10.) In the form, Mlsna stated that a number of conditions caused him to file the
application in addition to the hearing problems in both ears that was the unchallenged
cause of his termination -- specifically, the loss of his right leg,5 high blood pressure,
diabetes, an enlarged prostate, and high cholesterol. (Id.) When asked how his conditions
prevented him from work, Mlsna wrote: “Has problems hearing, unable to jump from train
to train because of the loss of right leg, difficult bending-needs support, difficult to walk
on tracks especially uneven tracks, has to make sure he takes pills to keep the diabetes
under control.” (Id.) He also represented on the form that he could no longer work as of
the date of his termination by the defendant, January 8, 2015. (Id.) Mlsna signed this
application form on November 23, 2015, affirming that the information provided
“represents the complete truth” to the best of his knowledge under penalty of civil and
criminal penalties. (Id. at 31.) Ultimately, although Mlsna withdrew his application before
receiving any disability benefits, defendant now contends that Mlsna’s sworn statement
that he could not work because of various medical conditions precludes any award of back

Well before beginning his employment at Union Pacific, Mlsna lost his leg in a train accident
while employed by the Canadian Pacific Railroad.
5

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or front pay after November 23, 2015.
In Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999), the U.S.
Supreme Court held that the “pursuit, and receipt, of [Social Security Disability Insurance
(“SSDI”)] benefits does not automatically estop the recipient from pursuing an ADA
claim.” Id. at 797. However, the Court cautioned that “an ADA plaintiff cannot simply
ignore her SSDI contention that she was too disabled to work”; rather, “she must explain
why that SSDI contention is consistent with her ADA claim that she could ‘perform the
essential functions’ of her previous job, at least with ‘reasonable accommodation.’” Id. at
798.
In this case, the court finds Mlsna’s statements in his RDB application were
consistent with his claim that he was and remains qualified to perform the essential
functions of his train conductor job.

First, the court observed in Cleveland that a

“representation of total disability” in an SSDI application “differs from a purely factual
statement in that it often implies a context-related legal conclusion, namely, ‘I am disabled
for purposes of the Social Security Act.’” Id. at 802. Thus, Mlsna’s representation that
his medical conditions prevented him from working must be read in the context of his
claim for RDB under the Railroad Retirement Act (“RRA”), 45 U.S.C. § 231 et seq. (the
relevant statute governing Mlsna’s application for disability benefits). The RRA provides
that individuals who have: a current connection with the railroad industry, completed ten
years of service, attained the age of sixty, and a permanent physical or mental condition
that is “disabling for work” in the individual’s regular occupation are entitled to railroad
disability benefits.

45 U.S.C. § 231a(a)(1)(iv).

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The Act further states that “[a]n

individual’s condition shall be deemed to be disabling for work in his regular occupation if
he will have been disqualified by his employer for service in his regular occupation.” 45
U.S.C. § 231a(a)(2).
Read in this context, Mlsna’s representations that he was too disabled to work for
the purposes of the RDB application could have been intended to mean nothing more than
that he was deemed disqualified by Union Pacific from performing his job and otherwise
met the RRA eligibility requirements.

Not only is this wholly consistent with the

precipitating event -- his termination by Union Pacific -- but Mlsna appears to otherwise
be eligible for disability benefits, having had a current connection to the railroad industry
at the time of his application, achieved ten years of service (nine-and-a-half years at Union
Pacific, plus nearly one year at Canadian Pacific), and reached sixty years of age or more
at the time of his application. Moreover, to the extent Mlsna may have thought he needed
to “gild the lily” by listing other disability conditions, all of those conditions were
preexisting, and none had precluded his working as a railroad conductor until his
termination.

In addition, Mlsna’s withdrawing the application before ever receiving

benefits suggests a change of heart. Finally, as discussed more fully below, Mlsna’s farm
work and testimony at trial left the jury obviously convinced that he would have continued
working as a conductor but for Union Pacific’s violations of the ADA. Therefore, the court
not only accepts, as did the jury, that the representation in the RDB applications was not
inconsistent with his contention that he remained qualified to perform the essential
functions of his job, but that he would have continued working as a conductor at least
through the date of trial.

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ii.

Episodes of lost consciousness

Defendant additionally contends that Mlsna’s backpay period should be cut short
because of two instances in which Mlsna suddenly lost consciousness, referred to as
“syncopal episodes.” Specifically, Mlsna’s medical record shows that on June 27, 2018,
Mlsna presented to Gundersen Lutheran Medical Center after such an episode. (Def.’s
Trial Ex. 554 at 512.) About two years later, on July 23, 2020, Mlsna again reported to
the Gundersen Medical Center after he briefly passed out. (Id. at 873.) Union Pacific’s
former Chief Medical Officer, John Holland, testified that a syncopal event would trigger
a fitness for duty evaluation of that employee and could result in work restrictions. At the
same time, however, Dr. Holland acknowledged that he would have had to perform an
individualized analysis of any employee before prohibiting him from working, and further
that he had not conducted such an assessment of Mlsna or reviewed Mlsna’s other medical
records.

Accordingly, Dr. Holland’s testimony does not establish that Mlsna’s two,

seemingly isolated syncopal episodes would have resulted in work restrictions. Moreover,
there is no evidence that these syncopal episodes, even with work restrictions, would
preclude Mlsna from continuing to work with accommodation, something the jury also
implicitly found as well. Regardless, Dr. Holland’s speculative testimony is simply not
enough to support shortening Mlsna’s back-pay window.

C. Prejudgment Interest
Prejudgment interest is routinely granted in ADA cases. E.g., Baier v. Rohr-Mont
Motors, Inc., 175 F. Supp. 3d 1000, 1011 (N.D. Ill. 2016); Ortega, 280 F. Supp. 3d at 1095;
Best v. Shell Oil Co., 4 F. Supp. 2d 770, 773 (N.D. Ill. 1998). “Courts award prejudgment

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interest because ‘compensation deferred is compensation reduced by the time value of
money,’ and only prejudgment interest can make the plaintiff whole.” Frey v. Coleman, 903
F.3d 671, 682 (7th Cir. 2018) (quoting In re Milwaukee Cheese Wisconsin, Inc., 112 F.3d
845, 849 (7th Cir. 1997)). To calculate prejudgment interest, the Seventh Circuit has
advised district courts to use the average of the prime rate for the years in question. Id.;
Cement Div., Nat'l Gypsum Co. v. City of Milwaukee, 144 F.3d 1111, 1114 (7th Cir. 1998).
Moreover, compound interest, as opposed to simple interest, is generally recognized as the
norm in federal matters. Am. Nat. Fire Ins. Co. ex rel. Tabacalera Contreras Cigar Co. v. Yellow
Freight Sys., Inc., 325 F.3d 924, 938 (7th Cir. 2003). Finally, prejudgment interest is
typically calculated from the date of the violation and ends when damages have been
ascertained in a meaningful way, which is usually when judgment is entered. Kaiser
Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 836 (1990); Baier v. Rohr-Mont Motors,
Inc., 175 F. Supp. 3d 1000, 1011 (N.D. Ill. 2016).
Here, plaintiff contends that the average prime rate during the relevant period is
4.03%, and that interest should be compounded annually on his award of back pay for the
time between his effective termination in January of 2015 until the entry of judgment.
Although challenging the underlying base pay award requesting by plaintiff, defendant does
not otherwise challenge plaintiff’s method for calculating prejudgment interest on that
award. Applying plaintiff’s method to the adjusted back pay award discussed above, the

18

court concludes that Mlsna is entitled to a total of $222,960.32 in prejudgment interest.6

D. Front Pay
Finally, the court turns to plaintiff’s request for front pay.7 But for his termination,
Mlsna testified credibly that he had planned to work until 2026 -- at which point he would
be seventy-four years old -- and so requests an award of five-and-a-half years of front pay
as well, discounted by the current prime rate. Defendant contends that no front pay award
is appropriate because he could not reasonably continue working in light of his current age
and disabilities.
The goal of front pay is to make the victim whole, putting him in the same financial
position he would have enjoyed had his rights not been violated. Biondo v. City of Chicago,
Ill, 382 F.3d 680, 691 (7th Cir. 2004). An award of front pay may be based on a number
of factors, including “whether the plaintiff has a reasonable prospect of obtaining
comparable employment, whether the time period for the award is relatively short, whether
the plaintiff intended to work or was physically capable of working and whether liquidated

The court applied the following formula -- ((P(1 + r)t) - P) -- where P is the principal (the court’s
award of $752,281.08 in back pay), r is the interest rate compounded annually (4.03%), and t is
time in years (6.57 years, running from January 8, 2015, through the date of judgment, August 3,
2021).
6

7

Generally, reinstatement is the preferred remedy for victims of discrimination. Bruso v. United
Airlines, Inc., 239 F.3d 848, 861 (7th Cir. 2001). Although plaintiff represented during the damages
trial to the court that Mlsna is seeking reinstatement (Trial Tr. July 1, 2021 (dkt. #303) 35-36),
Regardless, he does not appear to be pursuing reinstatement in his briefing, perhaps because Union
Pacific has indicated it would oppose that remedy. Given the parties’ positions, reinstatement
would not appear to be in the cards. See McNeil v. Econ. Lab'y, Inc., 800 F.2d 111, 118 (7th Cir.
1986) (“[A] plaintiff need not request reinstatement as a prerequisite to recovering front pay when
reinstatement would be inappropriate.”).

19

damages have been awarded.” Downes v. Volkswagen of Am., Inc., 41 F.3d 1132, 1141 (7th
Cir. 1994).
Here, the first three factors generally cut in favor of plaintiff’s requested award.
First, Mlsna has no reasonable prospect of obtaining comparable employment. He is sixtynine years old, with only a high school education and a professional background primarily
in farming and as a train conductor. Moreover, the number of jobs available to him would
likely be limited given his prosthetic leg and hearing loss. Second, the time period for the
award -- five-and-a-half years -- is of middling length. See Padilla v. Metro-N. Commuter R.R.,
92 F.3d 117, 126 (2d Cir. 1996) (affirming award of front pay for a period “well over 20
years” for a railroad employee who was unlawfully discharged); Feldman v. Philadelphia
Housing Auth., 43 F.3d 823, 832-33, 841 (3d Cir.1995) (upholding 38 year-old's front pay
award to retirement age of 65); Whittlesey v. Union Carbide Corp., 742 F.2d 724, 729 (2d
Cir. 1984) (stating that a front pay period of four years was “relatively short”); Buckley v.
Reynolds Metals Co., 690 F. Supp. 211, 217 (S.D.N.Y. 1988) (awarding front pay for a
period covering nine years). Third, no liquidated damages have been awarded.
As the parties’ sparring reflects, the closer question is whether Mlsna actually
intends to work or would be physically capable of working for the next five-and-a-half years.
Mlsna testified that he planned on working “as long as [he] could,” and more specifically
that his “goal was to try to [finish] 20 years [of service with Union Pacific]. I knew I
couldn’t make more than that because of my age. I knew if I made 20, I’d have been

20

perfectly happy with making that.” (Trial Tr. July 1, 2021 (dkt. #303) 17.)8 On the one
hand, the court recognizes that Mlsna suffers from various physical impairments and also
that he appears to have already passed the age in which he would to be eligible for full
retirement benefits.

See U.S. Railroad Retirement Board, Full Retirement Age (last

accessed July 28, 2021), https://rrb.gov/Benefits/G-177/FRA (full retirement age for
railroad workers with less than 30 years of service born in 1954 is age 66); Social Security
Administration,

An

Overview

of

the

Railroad

Retirement

Program

(2008),

https://www.ssa.gov/policy/docs/ssb/v68n2/v68n2p41.html (“To be eligible for aged
retirement benefits through RRB, a worker must have worked at least 10 years in covered
service for the railroad industry, or at least 5 years after 1995.”).
Still, working into one’s seventies is not unheard of -- according to census data, in
2018 approximately 23.8% of men between the age of seventy and seventy-four were still
in the workforce.9 And the court has substantial reason to believe that Mlsna in particular
would have, and could have, worked as a train conductor until he was seventy-four but for
his wrongful termination. For example, despite his impairments, Mlsna has demonstrated
remarkable capacity to work labor-intensive jobs on his farm and at Union Pacific well into
his sixties.

Moreover, there is no persuasive evidence that his physical capacity is

According to plaintiff’s counsel, Mlsna meant twenty-years of railroad service, which would be
through 2026. Plaintiff’s counsel represents that “[t]wenty years of service is the minimum number
necessary for railroad employees to qualify for certain benefits.” (Pl.’s Br. (dkt. #293) 6.) However,
plaintiff includes no citation to support this, and from what the court can tell, Mlsna would have
been eligible for full retirement benefits by age sixty-six as noted in the text below.
8

Society of Actuaries, A Review of Demography of Retirement in the United States (Jan. 2020),
https://www.soa.org/globalassets/assets/files/resources/essays-monographs/2020-living-to100/complete-paper-2b-siegel.pdf.
9

21

diminishing beyond the normal toll taken by aging.10

Additionally, at trial, Mlsna

described his seemingly sincere passion for his work as a conductor, real pride in his work,
and a deep desire to continue that work. The jury’s significant compensatory damage
award in part supports these findings, as it implies that they found Mlsna to have suffered
a great deal of emotional distress after having been abruptly withheld from service and
being denied the ongoing opportunity to continue to work at Union Pacific.
Still, the Seventh Circuit has recognized the speculative nature of someone working
past the average retirement age. In particular, the Seventh Circuit vacated a district court’s
front pay award in Hybert v. Hearst Corp., 900 F.2d 1050 (7th Cir. 1990), noting
the highly speculative nature of the front pay requested by and
awarded to Hybert. In language keenly applicable to this case,
we stated in Graefenhain [v. Pabst Brewing Co., 870 F.2d 1198
(7th Cir. 1989)] that the combination of front pay with
liquidated damages is less appropriate when the former is
“highly speculative due to the lengthy period for which
damages are sought and the lack of certainty that plaintiff
would have remained employed during such a lengthy
period.” 870 F.2d at 1205.
Id. at 1056. In Hybert, the court further explained that:
Judge Parsons calculated Hybert's front pay under the
following assumptions: that Hybert would have continued to
work at his present level of activity until age 72 (Hybert was
67 years old when the trial ended, so the court's five-year front
pay award would carry him to age 72); that Hearst would have
continued to employ Hybert in his last-held position for five
more years until he retired at age 72; and that Hearst would
have continued to employ Hybert at his last-held salary level
for five more years until he retired at age 72. The record
provides an inadequate predicate for these assumptions. No
For the reasons discussed above, there is insufficient evidence for the court to conclude that
Mlsna’s more recent episodes of syncope would limit his ability to work, and he has successfully
worked as a conductor for years with his other physical limitations.
10

22

record evidence speaks to whether advertising space salesman
for magazines like Good Housekeeping generally work to age 72,
nor whether Hybert in particular could or would have done so
(other than Hybert's “apparent good health” and his “professed
willingness”). Further, although there was sufficient evidence
to support the jury's conclusion that Hybert's discharge was
age-based, the evidence regarding complaints from advertisers,
tension with management, and other performance-related
problems should not be ignored in making the front pay
determination. . . . Thus, given the evidence currently in the
record, it was impermissibly speculative to award Hybert front
pay in such a large amount and covering such an extended
length of time.
Id. at 1056-57.
Of course, age seventy is not the same on average in 2021 as it was even in 1990
when Hybert was decided.11 Plus, Mlsna is not average by any means, having demonstrated
remarkable ability to push through adversity and obstacles that would have stopped most
men from pursuing another railroad conductor job, much less continue into his mid-sixties
with no appearance of slowing down, as a parade of his fellow conductors and train
engineers who worked with him took the time to testify before the jury. Indeed, not only
did Mlsna’s fellow workers attest to his continued ability to do the job of conductor well,
even exceptionally well, until his unlawful termination, but unlike in Hybert and some of
the other cited cases above, Union Pacific offered no evidence of Mlsna ever falling short
of expectations on the job.

Thus, while the court finds seventy-four might be a bit

Ignoring the past years under COVID-19, the average life expectancy of males at age sixty-five
increased from 15.1 years (i.e., an overall life expectancy of 80.1 years) in 1990 to 18.1 in 2018
(an overall life expectancy of 83.1 years). Life expectancy at birth, at age 65, and at age 75, by sex,
race, and Hispanic origin: United States, selected years 1900–2016, CDC (2017),
https://www.cdc.gov/nchs/data/hus/2017/015.pdf; National Vital Statistics Reports, CDC (Nov. 17,
2020), https://www.cdc.gov/nchs/data/nvsr/nvsr69/nvsr69-12-508.pdf.
11

23

ambitious, seventy-two seems reasonable and far from speculative. The court will award
three-and-a-half years of front pay to plaintiff’s award.
As for the wage rate, courts begin with the plaintiff’s wage rate at the time of
termination, account for raises, then discount the award to account for the interest it will
earn. Arroyo, 2017 WL 2985649, at *14. Generally, the discount rate is the Federal
Reserve prime interest rate at the time of judgment.

Allman v. Smith, No.

112CV00568TWPDML, 2017 WL 6527342, at *2 (S.D. Ind. Mar. 31, 2017). Here,
plaintiff’s wage rate at the time of his unlawful termination was $89,683.19, and the
union’s average negotiated raise increase between 2015 and 2019 was 2.9%, which the
court finds to be an appropriate estimated annual raise. SMART TD members ratify
National

Rail

Agreement,

SMART

(Dec.

1,

2017),

https://smart-

union.org/news/tag/collective-bargaining-agreement/. With a current prime rate of 3.25%,
U.S.

Federal

Reserve,

Selected

Interest

Rates

(Daily),

https://www.federalreserve.gov/releases/h15/, this results in an award of $309,743.54 for
front wages.12
As for benefits, plaintiff does not present any evidence that those would increase
over time, so the court will simply begin with the benefit rate at the time of his termination

The court added $33,031.68 to account for raises, calculated again using the (P(1 + r)t - P)
formula, where P is the principal ($313,891.17, which is Mlsna’s wage rate of $89,683.19 times
the 3.5 year front pay period), r is the rase rate compounded annually (2.9%), and t is the time in
years (3.5 years). The court then subtracted $37,179.31 using the same formula, except replacing
the raise rate with the prime interest rate of 3.25%.
12

24

and apply the 3.25% discount rate, which results in an award of $81,485.08 in front
benefits.13 Added together, plaintiff is granted a front pay award of $391,228.62.

ORDER
IT IS ORDERED that:
1) Plaintiff’s Rule 52 motion for judgment as to his disparate impact claim (dkt.
#283) is DENIED.
2) Defendant’s motion to conform the jury’s award of compensatory and punitive
damages to the statutory cap (dkt. #289) is GRANTED. Plaintiff’s
compensatory damage award is REDUCED to $300,000, and his punitive
damage award is VACATED.
3) Plaintiff’s request for back pay and front pay (dkt. #293) is GRANTED IN
PART and DENIED IN PART. Plaintiff is awarded $752,281.08 in back pay,
$222,960.32 in prejudgment interest, and $391,228.62 in front pay, for a
total of $1,366,470.02
Entered this 3rd day of August, 2021.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

The same formula discussed in the preceding footnote was applied, with a principal of $92,433.50
(the annual benefit rate of $26,409.57 time 3.5 years) and rate of 3.25%.
13

25