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JEFFERSON v. MILVETS SYS. TECH.

November 24, 1997

LEROY R. JEFFERSON, Plaintiff,
v.
MILVETS SYSTEM TECHNOLOGY, INC., Defendant.



The opinion of the court was delivered by: SPORKIN

 I. Introduction

 On April 22, 1997, a jury rendered its verdict for the plaintiff on his claim for retaliation under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-3(a), awarding him $ 50,000 in compensatory damages and $ 150,000 in punitive damages against the defendant, Milvets System Technology, Inc. ("Milvets"). The Clerk entered judgment on the verdict, but, on April 29, 1997, the Court stayed execution on the judgment until it had resolved all post-judgment issues, including the plaintiff's entitlement to equitable relief and attorney's fees and whether and to what extent the damages award must be reduced pursuant to 42 U.S.C. § 1981a(b)(3), which limits a Title VII damages award based on the number of employees a defendant has.

 On June 12, 1997, the Court heard oral argument on these post-trial issues and on several other outstanding issues. Via an oral ruling, the Court denied the plaintiff's motion for Rule 11 sanctions; denied the plaintiff's request for injunctive relief; denied the plaintiff's motion to tax costs, without prejudice to his right to seek costs pursuant to Rule 214(c) of the Local Rules; denied the defendant's motion for judgment as a matter of law; and denied the defendant's motion for a new trial. Additionally, the Court secured the parties' consent to the appointment of a Special Master whose task would be to determine the number of employees Milvets had in 1994 and 1995, whereupon the Court would decide by how much, if any, to reduce the jury's damages award in accordance with § 1981a(b)(3). The Court took all remaining issues under advisement.

 For the reasons discussed below, the Court shall now deny the plaintiff's motion to amend his complaint, without prejudice to his right to re-file his defamation claim in the Superior Court for the District of Columbia; dismiss the defendant's counterclaims against the plaintiff, without prejudice to its right to re-file these claims in the Superior Court; grant in part the plaintiff's motion for back pay; deny the plaintiff's motion for front pay; grant in part the plaintiff's motion for attorney's fees; adopt the Special Master's report which concludes that Milvets had less than 101 employees in both 1994 and 1995; and reduce the jury's damages award by $ 150,000 to comport with § 1981a(b)(3). The plaintiff also shall be awarded pre-judgment interest on the back pay and post-judgment interest on his damages, his attorney's fees, and on the combined sum of his back pay and the pre-judgment interest on the back pay.

 II. Discussion

 A. The Plaintiff's Motion to Amend the Complaint Shall Be Denied, and the Defendant's Counterclaims Shall Be Dismissed.

 The defendant has alleged four counterclaims against the plaintiff for "breach of employment," fraud, "breach of agency," and "conspiracy." The defendant claims that, while the plaintiff was employed at Milvets, he prepared fraudulent time-sheets, lost or stole computer equipment (or conspired to do the same), pursued his own business opportunities on company time, and failed to use his best efforts as a Milvets employee.

 In March, the plaintiff moved to amend his complaint, claiming that his former supervisor and the president of Milvets had defamed him by telling other employees that he had conspired with another employee to steal computer equipment. The plaintiff's motion to amend also sought to pierce the corporate veil to impose individual liability on Bob Daniels as sole shareholder of Milvets, which, according to the plaintiff, does not observe any of the corporate formalities.

 The Court deferred ruling on the plaintiff's motion until after trial. The Court also decided not to present the defendant's counterclaims to the jury, without formally dismissing these claims.

 At oral argument on June 12, the plaintiff informed the Court that he did not object to pursuing his defamation claim in the Superior Court. Further, the Court finds that adjudication of the parties' five common law claims would substantially predominate over the plaintiff's single Federal claim under Title VII. See 28 U.S.C. § 1367(c)(2). Accordingly, the Court shall deny the plaintiff's motion to amend and dismiss the defendant's four counterclaims, without prejudice to the defendant's right to re-file these claims in the Superior Court.

 B. The Plaintiff's Motion for Back Pay Shall Be Granted In Part, But His Motion for Front Pay Shall Be Denied.

 The plaintiff has moved for an award of $ 30,790 in back pay, $ 72,800 in front pay, and prejudgment and post-judgment interest on the back pay and front pay. The plaintiff earned $ 14.25 per hour at Milvets, where he worked 40 hours a week for a period of two months, from July 24, 1995 to September 26, 1995. The plaintiff did not begin working again until April 1, 1996, when he started working part-time for Technology Service Solutions ("TSS"). The plaintiff earns $ 14.50 per hour at TSS. There is no dispute that the plaintiff's job at TSS is comparable to his job at Milvets in terms of job requirements and is superior in terms of pay. The plaintiff, however, works only 20 hours per week, purportedly because of the continued emotional pain stemming from his termination from Milvets. The plaintiff further alleges that he will not be able to work full-time for another 5 years into the future.

 The Court finds the plaintiff's claim for more than a year-and-a-half of back pay and five years of front pay to be utterly speculative. While there was sufficient evidence for a reasonable jury to find that the plaintiff had suffered some compensable, emotional distress at the hands of the defendant, *fn1" the plaintiff has pointed to no probative evidence (such as expert testimony from a psychologist or a physician) that this emotional distress has precluded him from working full-time and will continue to do so for another five years. Indeed, the plaintiff's trial testimony that he began therapy well over a year after his discharge and then for the purpose of supporting his claim for compensatory damages severely undermines any such contention.

 The plaintiff had and continues to have a statutory duty to minimize damages by using "reasonable diligence in finding other suitable employment." Ford Motor Co. v. EEOC, 458 U.S. 219, 231, 73 L. Ed. 2d 721, 102 S. Ct. 3057 (1982); see also 42 U.S.C. § 2000e-5(g)(1) ("Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable."). This duty to mitigate also applies to "underemployed" Title VII claimants like the plaintiff, who works only part-time. Ford Motor Co., 458 U.S. at 231. Here, the evidence before the Court shows that the plaintiff has been underemployed voluntarily. Without more, the plaintiff's mere assertion that he has not felt and does not feel he can work at his current job on a full-time basis is far too speculative to justify an award of back pay and front pay for so many years. Thus, the plaintiff has failed to mitigate his economic damages at least since the time he accepted his job with TSS in April of 1996.

 The plaintiff counters that, after November 30, all Milvets employees at the Library of Congress location started immediately to work for United Communication Systems, and that these Milvets employees had received favorable recommendations from Milvets. But for the retaliation against him, the plaintiff argues, the plaintiff also would have been re-employed by United Communication Systems.

 The Court agrees that if the evidence suggested that the plaintiff would have been re-employed by United Communications, his entitlement to back pay would not necessarily cease on November 30. The plaintiff, however, has not pointed the Court to any supporting evidence, only the unsworn assertions of counsel. The Court has no way of knowing if United Communications hired former Milvets employees, let alone those with the plaintiff's background and experience. Moreover, the plaintiff has provided the Court with no basis to estimate how long he likely would have been employed by United Communications. Thus, the Court shall accept the defendant's back pay calculation. See Waters v. Wisconsin Steel Works of Int'l Harvester Co., 502 F.2d 1309, 1321-22 (7th Cir. 1974) (claim for wages from ...


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