director of materials management had been open in the Washington, D.C., area since 1992, including at Greater Southeast Hospital, D.C. General Hospital and Suburban Hospital.
Based upon the plaintiff's experience and education, Nussdorf testified that Barbour should have been able to obtain employment within six to twelve months of departing CHW at a salary ranging between $ 52,000 and $ 68,000. Nussdorf concluded that Barbour's efforts were inadequate, citing the plaintiff's failure to dedicate sufficient time and effort to his job search and his failure to follow-up on his applications. Nussdorf also testified that Barbour undermined his employability by leaving CHW before he had lined up prospects for new employment.
Both parties offered testimony by expert witnesses on damages, relevant aspects of which the Court has addressed in Part IV, infra, in awarding damages.
III. Conclusions of Law
The Court has broad discretion in fashioning an equitable remedy in discrimination cases. Front pay is one of the tools available to the Court in awarding equitable relief, and it may be used, where warranted, to compensate a victim of discrimination for the continuing future effects of discrimination until the victim is made whole. See Weaver v. Casa Gallardo, Inc., 922 F.2d 1515, 1529 (11th Cir. 1991); Shore v. Federal Express Corp., 777 F.2d 1155, 1159 (6th Cir. 1985); Thompson v. Sawyer, 219 U.S. App. D.C. 393, 678 F.2d 257, 293 (D.C. Cir. 1982). Front pay is intended to serve as restitution for the victim, not to punish an employer. It is certainly not "intended to insure a plaintiff's future financial success." McKnight v. General Motors Corp., 973 F.2d 1366, 1371 (7th Cir. 1992).
Determining the amount and duration of front pay requires some speculation because assumptions about the future are necessary. Reneau v. Wayne Griffin & Sons, Inc., 945 F.2d 869, 870 (6th Cir. 1991); Green v. USX Corp., 843 F.2d 1511, 1531 (3rd Cir. 1988). The greater the period for which front pay is sought, the more speculative the award becomes. See Hybert v. Hearst Corp., 900 F.2d 1050, 1056 (7th Cir. 1990); see also McKnight, 973 F.2d at 1372. Nevertheless, front pay generally ends when a victim has had a reasonable amount of time to secure comparable employment. See Goss v. Exxon Office Sys. Co., 747 F.2d 885, 889 (3rd Cir. 1984) (awarding four months front pay). If awarded, it should be reduced by the amount that the victim actually earned or could reasonably have earned during the front pay period. See Ford Motor Co. v. E.E.O.C., 458 U.S. 219, 231, 73 L. Ed. 2d 721, 102 S. Ct. 3057 (1982); Rasimas v. Michigan Dep't of Mental Health, 714 F.2d 614, 623 (6th Cir. 1983); Clark v. Marsh, 214 U.S. App. D.C. 350, 665 F.2d 1168, 1172 (D.C. Cir. 1981); Hartman v. Wick, 678 F. Supp. 312 (D.D.C. 1988).
In this case, the Court of Appeals has identified factors that this Court is to consider when determining the mount and duration of a front pay award. Each of those factors is discussed below. As threshold matters, however, the Court will address the plaintiff's attempt to relitigate the base salary amount as well as the defendants' arguments that Barbour should receive no front pay after October 27, 1992, because he unreasonably left CHW and because he thereafter failed to mitigate his damages by reasonably pursuing employment that was substantially equivalent.
1. The defendants' affirmative defense of failure to mitigate
The defendants argue that Barbour should be denied front pay as of the date when he voluntarily left CHW without alternative employment and because, they claim, Barbour failed to exert reasonable efforts to seek employment thereafter. Barbour argues that he was not obligated to remain in a position that was not comparable to the one at Medlantic and that, in any event, he reasonably sought employment during the interim period.
Discrimination plaintiffs who fail to mitigate their damages may forfeit their entire entitlement to an award of front pay. A plaintiff must make a reasonable effort to find new employment that is substantially equivalent to the position of which he was deprived. NLRB v. Madison Courier, Inc., 153 U.S. App. D.C. 232, 472 F.2d 1307, 1318 (D.C. Cir. 1972). The defendants bear the burden to establish a failure to mitigate as well as interim earnings. Anastasio v. Schering Corp., 838 F.2d 701, 707 (3rd Cir. 1988); Rasimas, 714 F.2d at 624. To satisfy this burden, they must demonstrate that substantially equivalent positions were available and that the plaintiff failed to use reasonable diligence to obtain such positions. Rasimas, 714 F.2d at 624. The defendants are not required to show that the victim would have obtained suitable employment, but only that the victim failed to act reasonably in pursuing such employment. NLRB v. Madison Courier, Inc., 472 F.2d at 1319. Mitigation requires an honest, good-faith effort in pursuing employment. Id. at 1318. It also requires the exercise of reasonable diligence to "maintain a suitable job once it is located." E.E.O.C. v. Delight Wholesale Co., 973 F.2d 664, 670 (8th Cir. 1992); see also Jurgens v. E.E.O.C., 903 F.2d 386, 389 (5th Cir. 1990); Brady v. Thurston, 753 F.2d 1269, 1277-78 (4th Cir. 1985). To deny an award due to a plaintiff's failure to mitigate, the defendant must prove that the plaintiff's search was "so deficient as to constitute an unreasonable failure to seek employment." E.E.O.C. v. Kallir, Philips, Ross, Inc., 420 F. Supp. 919, 925 (S.D.N.Y. 1976).
Here, the defendants have demonstrated that substantially equivalent positions were available, but they have not shown that Barbour's weak search efforts were "so deficient as to constitute an unreasonable failure to seek employment." Kallir, Philips, Ross, Inc., 420 F. Supp. at 925. The defendants focus on Barbour's failure to spend more than a few hours a week engaged in his job search effort, his failure to send more than a few resumes per month and his failure to follow-up those resumes with phone calls. See McIntosh v. Irving Trust Co., 873 F. Supp. 872, 879 (S.D.N.Y. 1995). While they have persuasively established that his efforts were certainly less than aggressive, Barbour did apply for eighty positions since October of 1992. Compare Anastasio, 838 F.2d at 708 (60 job applications demonstrates reasonable diligence); Sprogis v. United Air Lines, Inc., 517 F.2d 387, 392 (7th Cir. 1975) (one application and two-month temporary job in two-year time period deemed reasonable). He has obtained several job interviews. Barbour has not removed himself from the job market, as did the plaintiff in Sellers v. Delgado, 902 F.2d 1189, 1196 (5th Cir. 1990). While his lack of success may be directly attributed to his low key approach and his decision to place greater priority on matters other than seeking employment,
his search efforts were not so unreasonable as to bar front pay entirely.
In contrast to his minimally acceptable job search efforts is his unreasonable decision to leave CHW without having another position lined up (or even having interviews scheduled). By voluntarily quitting suitable employment for personal reasons, he has failed to exercise reasonable diligence. See Delight Wholesale, 973 F.2d at 670; United States v. City of Chicago, 853 F.2d 572, 579 (7th Cir. 1988); Brady, 753 F.2d at 1277; Oil, Chem. & Atomic Workers Int'l Union v. NLRB, 178 U.S. App. D.C. 301, 547 F.2d 598, 602-03 (D.C. Cir. 1976); Sennello v. Reserve Life Ins. Co., 667 F. Supp. 1498, 1513 (S.D. Fla. 1987), aff'd, 872 F.2d 393 (11th Cir. 1989). Through his voluntary resignation, Barbour freely chose to incur a loss in his earnings. Brady, 753 F.2d at 1278. It would be unfair to saddle the defendants with the costs associated with Barbour's unreasonable decision. Accordingly, his front pay award will be decreased by the actual earnings that he received from CHW between June and October of 1992 as well as by the earnings that he would have received had he remained at CHW. See, e.g., Cassino v. Reichhold, Inc., 817 F.2d 1338, 1347 (9th Cir. 1987); Clark, 665 F.2d at 1172; Hartman, 678 F. Supp. at 337; Sennello, 667 F. Supp. at 1513.
2. The base salary
Barbour has requested that the Court include fringe benefits in his front pay award, including pension benefits, health and life insurance benefits and a tax component boost to account for the tax liability that he contends he would incur for a lump sum award. He also asks for FICA, social security and Medicare tax adjustments. The defendants object.
In determining Barbour's back pay award, this Court previously established Barbour's base salary at $ 70,000. The Court rejected Barbour's claim that he was entitled to the same salary that Terry Rich received, $ 85,000, and rejected his requests for a $ 200 per month car allowance and a signing bonus, which Rich allegedly received. Barbour appealed this Court's decisions, but the Court of Appeals affirmed: "Although back pay should generally include the value of lost fringe benefits, the plaintiff bears the initial burden of establishing the value of the lost salary and benefits. The district court reasonably concluded that Barbour did not meet this burden . . . ." 48 F.3d at 1278.
The Court of Appeals' mandate on remand was not ambiguous: "The court had already weighed the evidence to establish a salary base when it calculated the back pay award. All that remained was for it to determine the appropriate duration of a front pay award, to incorporate any proper salary increases, and then to determine the award's present value, using an appropriate discount rate." Id. at 1280.
Barbour's base salary, upon consideration of the fringe benefits he requested and the evidence he presented, was established by this Court after the jury verdict. Barbour appealed that decision and lost. The base salary will not be reopened now, because doing so would be contrary to the law of the case, United States v. Singleton, 245 U.S. App. D.C. 156, 759 F.2d 176, 177-78 (D.C. Cir. 1985); Shakespeare Co. v. Silstar Corp., 906 F. Supp. 997, 1001 (D.S.C. 1995), and because it exceeds the scope of the remand. See, e.g., Shore v. Federal Express Corp., 42 F.3d 373, 377 (6th Cir. 1994) (plaintiff barred from seeking to include pension benefits in front pay award for the first time on remand); Alberta Pork Producers' Mktg. Bd. v. United States, 12 C.I.T. 262, 683 F. Supp. 1398, 1403 (C.I.T. 1988) (arguments that could have been raised earlier cannot be asserted on remand as beyond scope of remand).
The request for a $ 700,000 tax boost will be rejected for additional reasons. First, an income tax adjustment due to a lump sum payment is warranted only where the Court has sufficient evidence to calculate an appropriate adjustment. See Hukkanen v. International Union of Oper. Eng'rs, 3 F.3d 281, 287 (8th Cir. 1993). Such an adjustment is to be measured as the increased, or differential, tax burden caused by the lump sum payment in a single tax year. Gelof v. Papineau, 829 F.2d 452, 455 (3rd Cir. 1987). This is because a lump sum payment would place the plaintiff in a higher tax bracket. Here, the plaintiff's expert offered testimony only as to the plaintiff's total tax liability arising from a lump sum award. Having failed to offer any evidence as to the differential between this tax burden and what the plaintiff would bear if he were paid the front pay over time (i.e., as salary), or any evidence as how to calculate the same, the request will be rejected. The fact of a discrimination verdict does not allow the plaintiff to shift his entire tax burden to the employer. Such a result would be punitive.
His request for FICA and Medicare adjustments is also rejected. His request here is curious, because there is absolutely no basis for an award to him. Medlantic, had it hired him, would have remitted these amounts to the federal government. See Rupp v. Purolator Courier Corp., 45 F.3d 440 (Table), unpublished opinion reprinted at 1994 U.S. App. LEXIS 36233, 1994 WL 730892 *2 (10th Cir. Dec. 20, 1994). While Barbour may have derived some benefit from such payments had he been hired, he is not entitled to receive these amounts directly. Paying Barbour these amounts would provide him a windfall. Id.
3. The duration of the front pay award
In general, front pay ends when the sting of discrimination has passed and the victim has had a reasonable amount of time to secure comparable employment. Here, the plaintiff requests front pay through the year 2005, contending that he would have remained at Medlantic until his retirement at age 65. The defendants argue that any front pay should terminate on October 27, 1992, when Barbour left CHW voluntarily for reasons unrelated to work.
Upon applying the factors identified by the Court of Appeals to the evidence on record in this case, it is clear that an award of front pay for thirteen years until the year 2005 would be inappropriate, unduly speculative, and punitive in effect. Barbour was 52 years of age when the jury returned its verdict. While marketability may wane as a person gets older, the plaintiff was not, and is not, so old that it can be reasonably expected that he will never again work. Nor is it logical to believe that, with reasonable efforts, he will not be hired for a position substantially equivalent to the one he initially sought at Medlantic. The evidence at trial established that with reasonable efforts he could expect to have been hired at a comparable position within a year of departing CHW. At age 56, Barbour clearly remains competitive in the materials management job market, having been interviewed for such a position at Greater Southeast Hospital just prior to the evidentiary hearing. See Dominic v. Consolidated Edison, 652 F. Supp. 815, 820 (S.D.N.Y. 1986) (front pay until age 70 highly speculative where well-educated 52-year-old (at time of verdict) plaintiff had good prospects to obtain a more lucrative position), aff'd, 822 F.2d 1249 (2d Cir. 1987). Since the plaintiff had, and still has, reasonable prospects for obtaining comparable employment within a reasonable timeframe (should he exert reasonable efforts), it would be punitive and unduly speculative to award him front pay until his intended retirement date in 2005.
See, e.g., United Paperworkers v. Champion Int'l, 81 F.3d 798, 805 (8th Cir. 1996) (lifetime award of front pay inappropriate where plaintiff's relatively young age allowed future opportunity to mitigate damages); Hybert v. Hearst Corp., 900 F.2d 1050, 1056 (9th Cir. 1990) (five-year award to 67 year-old plaintiff is too speculative); Dominic v. Consolidated Edison, 822 F.2d 1249, 1258 (2d Cir. 1987) (upholding trial judge's decision awarding two years of front pay and rejecting plaintiff's claim for front pay until retirement age).
The evidence at the hearing indicated that Rich's predecessor as Medlantic's Director of Corporate Materials Management held that position for approximately three years.
Rich had held that position for three years until Medlantic eliminated it. No evidence was offered to indicate that it was typical for Medlantic directors to hold this position for more than three to five years. Although little persuasive evidence was offered at the hearing regarding the time period that other multi-hospital materials managers held their positions,
the Court notes that Barbour held his position as a materials manager at CHW for approximately five years and Barbour's predecessor had held the position for about six years.
An important factor considered by the Court is Barbour's qualifications. Barbour has an advanced degree (i.e., Masters of Business Administration) and considerable practical experience in the area of medical materials management. He also has considerable experience in other management areas. He enjoyed a successful military career, rising to the rank of Lieutenant Colonel. He is clearly a talented individual. These qualifications and practical experience should give him leverage in a job market that, with reasonable job search efforts, he could turn to his advantage.
The defendants established at the hearing that substantially equivalent positions were available in this job market and that, with reasonable efforts, the plaintiff should have been able to obtain alternative employment within six to twelve months of departing CHW.
While the Court has not found that the defendants have met their burden to demonstrate that Barbour's efforts to seek employment were so deficient as to bar front pay entirely, neither can it be said that his job search efforts, as outlined above, were aggressive. Based on the evidence at trial, Barbour's job search efforts for substantially equivalent employment gradually declined and were reduced substantially in 1995 and 1996. Although the Court is not persuaded that Barbour has effectively removed himself from the job market, it is obvious that reemployment is not his major priority. As an equitable matter, such tepid job search efforts are a factor that the Court takes into consideration in determining a fair front pay period.
While Barbour's stated intention to remain at Medlantic until 2005 has been characterized as "entirely reasonable," such long term employment is not consistent with his work record in the private sector as developed at the evidentiary hearing. He held the materials management position at CHW for five years before he left voluntarily. Barbour himself testified during his deposition that, from his very arrival at CHW, he was looking to leave: "I had continuously from -- since I arrived at the Columbia Hospital I was continuously looking for other employment." Deposition Transcript at 103 (May 24, 1996). The Court cannot find by a preponderance of the evidence that Barbour would have felt, or acted, any differently were he to have been hired by Medlantic in 1989--only two years after he had commenced his employment with CHW.
It is also significant (although not dispositive) that the position for which Barbour competed at Medlantic was eliminated in 1992. See Bartek v. Urban Redev. Auth., 882 F.2d 739 (3rd Cir. 1989) (front pay denied where position eliminated). But, in this case, complete denial of front pay strikes the Court as too draconian a result when the position, while technically eliminated, was actually converted. Barbour contends that he, like Rich, would have been transferred to this new position which entailed greater responsibility (albeit in a single hospital system). However, the job has changed significantly since 1992 and it bears little resemblance to the position Barbour originally sought. Considering his private sector work record, and in spite of his stated intentions, the Court cannot find by a preponderance of the evidence that Barbour would have remained with Medlantic long enough to have been part of the 1992 restructuring, let alone been offered the promotion that went along with it. See, e.g., Tennes v. Com. Of Mass., Dep't of Revenue, 944 F.2d 372, 381 (7th Cir. 1991) (denial of front pay appropriate based upon plaintiff's employment record).
Determining the appropriate relief is, as the Court of Appeals has recognized, difficult because it is, in many respects, speculative. It is an inexact science, if it can be considered a science at all. The Court has considered a broad range of largely indeterminate factors without a clear formula as to how each factor relates to the others in order to establish a bottom line that makes the plaintiff whole, but which stops short of punishing the defendants. Nevertheless, based upon an amalgam of the factors cited by the Court of Appeals, the Court finds that four years is a reasonable time period within which Barbour should have been able to find comparable employment and after which the sting of any discrimination should have passed. See, e.g., Dominic, 652 F. Supp. at 820 (highly educated 52-year-old (at the time of jury verdict) plaintiff should be able to find comparable employment within five years of termination). Since the Court has awarded Barbour three years of back pay, the plaintiff will be made whole with one additional year of front pay (until June 18, 1993). The award will be offset by Barbour's actual interim earnings at CHW and what his earnings would have been had he not unreasonably left CHW on October 27, 1992.
IV. The Award
The front pay award will be computed based upon a base salary of $ 70,000, commencing June 1, 1989,
with a salary increases of 5.3 percent annually effective on January 1st of each year.
This amount shall be offset by Barbour's actual interim earnings at CHW and what he would have earned at CHW had he remained there through June 18, 1993 (also computed with a salary increase of 5.3 percent annually).
The front pay award will be computed as follows:
Date Salary Earnings Offset Award
6/1/89 $ 70,000 -Back pay previously awarded
1990 $ 73,710 -Back pay previously awarded
1991 $ 77,617 -Back pay previously awarded
1992 n18 $ 81,730 n19 $ 43,888 n20 $ 24,337 n21 $ 19,551
1993 $ 86,062 n22 $ 39,849 n23 $ 22,097 n24 $ 17,752
Subtotal $ 37,303.00
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