For
the Northern District of Illinois
Don
A. Jackson,
Plaintiff,
vs.
Lake
County,
an
Illinois municipal corporation,
Defendant.
No.
01 C 6528
2004
U.S. Dist. Lexis 12725
July
9, 2004, Decided
Decision
on Equitable Relief
Joan Humphrey Lefkow
United States District Judge.
This
disability discrimination case was tried and submitted to a jury during
November, 2003, and resulted in an award to the plaintiff, Don A. Jackson, of
damages for emotional distress in the amount of $325,000. In addition to the award of damages, as the
prevailing party, plaintiff is entitled to be made whole for that which he lost
as a result of the discrimination found. See 42 U.S.C. 12117
(Americans with Disabilities Act, 42 U.S.C. 12101 et seq., incorporates
remedies provided by the 1964 Civil Rights Act, 42 U.S.C. 2000e-1 et. seq.,
including 2000e-5(g)(1), which provides that a court may order appropriate
equitable relief including, but not limited to, back pay.) Plaintiff has
submitted a Summary of Damages in which he calculates that he is entitled to
$50,079, representing lost wages, overtime pay and benefits for the period
April 1, 2001 (the day following his discharge) to the date of the verdict,
November 7, 2003 (the back pay period). Defendant, Lake County, Illinois
(County) calculates that plaintiffs entitlement pursuant to the finding of
liability is approximately one half that amount, $23,247 (to the nearest
dollar). The court addresses the issues
raised under the method provided by Rule 56, Fed. R. Civ. P. On claims
entailing no genuine issues of material fact, the claim is ruled upon herein.
Where an issue of material fact exists, the matter will be set for trial.
Lost wages. The parties
submissions demonstrate that there is no substantial dispute as to the amount
plaintiff actually earned: plaintiff says, $86,221 + $8,190 unemployment
compensation benefits, a total of $94,411. Defendant says $85,213 + $8,190 unemployment compensation, a total
of $93,403. n1 The parties dispute, however, the amount of wages plaintiff
would have earned during the back pay period had he remained employed by
County. The disputes arise from differing assumptions as to what hourly
increases in pay plaintiff would have received during the period. Plaintiff
assumes a raise of 2.5% every April 1 and of 5.75% every November 15. County
assumes increases based on a change in compensation that County made during
2001, which imposed a solely merit compensation system of one raise per year,
and calculates based on plaintiffs last performance evaluation. The parties
further dispute the proper method of calculation of overtime for the same
period. The hourly rate of pay, as well as the projected number of hours are
disputed. Plaintiff bases his estimate on the actual hours of overtime he
worked during the first three months of 2001. County bases its estimate on the
average annual number of hours plaintiff worked during the preceding two years.
Countys position is more reasonable because a 24-month period is likely to
produce a more accurate average. Because County demands trial on the issue of
the projected rate of pay, the court will set this issue for trial.
Unemployment compensation. Plaintiff
contends that the unemployment compensation should not be deducted from his
award, and County argues to the contrary. The matter is discretionary with the
trial court. See Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1428-29 (7th
Cir. 1986) (further pointing out that the majority of the other circuits,
however, hold that unemployment benefits may never be deducted from backpay,
and this circuits rule . . which allows the district judge discretion to
deduct or not deduct unemployment benefits in Title VII cases (and . . .
substantively similar section 1981 cases) may be unduly favorable to
defendants.). Alternative to deducting the benefits from the back pay
calculation, County argues that the court should follow Certified Midwest, Inc.
v. Local Union No. 738, 686 F. Supp. 189 (N.D. Ill. 1998), and require that a
check be made out to both the State of Illinois and plaintiff because the State
is entitled to recoupment under Illinois law now found at 820 ILCS 405/900.
That section provides as follows:
D. Whenever, by reason of a back pay award made by any
governmental agency or pursuant to arbitration proceedings, or by reason of a
payment of wages wrongfully withheld by an employing unit, an individual has
received wages for weeks with respect to which he has received benefits, the
amount of such benefits may be recouped or otherwise recovered as herein
provided. An employing unit making a back pay award to an individual for weeks
with respect to which the individual
has received benefits shall make the back pay award by check payable jointly to
the individual and to the Director.
Because the statute does not specifically include a back pay award
made by a court, the legislature apparently contemplated recoupment of awards
made under collective bargaining agreements and governmental labor department
procedures. The Seventh Circuit, in holding that law preempted by the National
Labor Relations Act, N.L.R.B. v. Ill. Dept. of Employment Sec., 988 F.2d 735,
741 (7th Cir. 1993), distinguished Certified Midwest but has never considered
its applicability to back pay awards in the context of federal discrimination
laws. In light of the large number of cases in which the issue might arise but
the lack of reported cases other than Certified Midwest which have applied it
to a discrimination case, this court doubts the applicability of 900D with
respect to awards under federal discrimination laws. But see Steck v. Bimba
Mfg., 1997 U.S. Dist. Lexis 17112, No. 96 C 7442, 1997 WL 685003 (N.D. Ill.
Oct. 30, 1997) (granting motion to exclude evidence of receipt of unemployment
compensation but advising that 900D would require joint payment to plaintiff
and State.). For these reasons, the court will not deduct unemployment
compensation from the award or require joint payment.
Benefits. Plaintiff claims
that he should be compensated for lost benefits, measured by the employer costs
that would have been expended for plaintiffs medical insurance premium, dental
insurance premium, workers compensation, and unemployment compensation (the two
latter referring to taxes paid by County) in the amount of $5,424.50 for the
period from the date of discharge until he became covered under his new
employers benefit plan. Defendant argues that a make-whole remedy should
include only plaintiffs out-of-pocket expenses for medical and dental care
during that period. Defendant cites Pedreyra v. Cornell Prescription
Pharmacies, Inc., 465 F.Supp. 936 (D. Co. 1979). In that case the court awarded
to plaintiff her out-of-pocket payment for substitute insurance but did not
address the issue presented here. Plaintiff has cited no authority in support
of his position. On balance, the court concludes that defendants position is
better taken. Plaintiff had no out-of-pocket loss. Even had plaintiff continued
working for County, he would not have received the value of the employer
contributions unless he obtained reimbursement for medical expenses incurred
during that period. n2 Inasmuch as plaintiff can point to no outlay for which
he needs to be made whole for loss of medical benefits, an award equivalent to
the employer contribution to premium is denied.
Front pay. Plaintiff
contends that he is also entitled to front pay for a five-year period at the
rate of the average annual differential between his new wages during 2002 and
2003 and what he would have earned with County. County contends that plaintiff
is already earning more than he would have earned at County, thus presenting an
issue of fact deriving from the question addressed above as to back pay.
Further, County argues that the question of reinstatement is for the court and
the issue presents triable disputes of fact.
Front pay is awarded where reinstatement is not a practicable
remedy. See McNeil v. Economics Lab., Inc., 800 F.2d 111 (7th Cir. 1986) (When
reinstatement is infeasible or inappropriate, front pay may be appropriate to
make the plaintiff whole.). Front pay is money awarded for lost compensation
during the period between judgment and reinstatement or in lieu of
reinstatement. Pollard v. E.I. duPont de Nemours & Co., 532 U.S. 843, 846,
150 L.Ed.2d 62, 121 S.Ct. 1946 (2001). Or as the Seventh Circuit has put it,
front pay is a lump sum . . . representing the discounted present value of the
difference between the earnings [an employee] would have received in his old
employment and the earnings he can be expected to receive in his present and
future, and by hypothesis inferior, employment. McKnight v. General Motors
Corp., 908 F.2d 104, 116 (7th Cir. 1990) (citations omitted). In deciding
whether front pay is appropriate, . . . the district court in its discretion
should consider the circumstances of each particular case, and should note such
factors as whether the plaintiff has a reasonable prospect of obtaining
comparable employment; [whether] the time period for the award of front pay is
relatively short; and whether liquidated damages have been awarded (and if so,
in what amount). Coston v. Plitt Theatres, Inc., 831 F.2d 1321, 1332 (7th Cir.
1987), citing McNeil, 800 F.2d at 118-19.
Because the parties do not agree on the facts relating to
whether reinstatement is feasible, and if not, whether plaintiffs job with
Peoples Gas is comparable, the court reserves the issue of front pay for trial.
Pension benefits. As an
element of front pay, plaintiff seeks $51,379 to compensate him for the present
value of lost pension benefits under the Illinois Municipal Retirement Fund,
which benefits would have vested on September 23, 2004 (his 8-year
anniversary). He calculates the present value based on wage assumptions
discussed above, thus an issue of fact is present. As to his entitlement,
County argues that because his pension rights were not vested and he withdrew
his contributions when he left his employment, he is not entitled to be
compensated as if his rights were vested. County also argues that the award
should be offset by the value of vested pension rights he expects to receive
from Peoples Gas. Should an award be made for lost pension benefits, the parties
should be prepared to address whether it is appropriate to offset such an award
by the value of the pension rights, if any, plaintiff has or is likely to
receive from Peoples Gas, and the projected growth on the contributions which
he liquidated upon leaving County employment.
The court will allow compounded prejudgment interest as proposed
by plaintiffs.
Order
This case will be called for a status hearing on July 15, 2004
at 9:30 a.m., to set a date for resumed trial before the bench. In the
meantime, the parties are directed to continue to attempt to resolve all
remaining issues.
July 9, 2004
Joan Humphrey Lefkow
United States District Judge
Notes:
1 The dispute appears to be regarding
the amount earned at County, which should be easily ascertainable. If the court
reads Exhibit E to Countys submission correctly, plaintiffs gross earnings in
2001 were $36,923, in which case the lost earnings would total $86,221, as
plaintiff states.
2 Although the requested amount
reflects their inclusion, the court assumes that plaintiff does not intend to
request reimbursement for the unemployment tax inasmuch as he received the
benefit of that tax. Similarly, the workers compensation tax protects against
workplace injury, and plaintiff was not working, so the court finds no basis to
include that tax.