Free Motion for Miscellaneous Relief - District Court of Colorado - Colorado

Case 1:01-cv-02199-MSK-MEH

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Filed 05/11/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 01-cv-02199-MSK-MEH MICHAEL E. CLAWSON and JARED L. DILLON, Plaintiffs, v. MOUNTAIN COAL COMPANY, L.L.C., ARCH WESTERN RESOURCES, L.L.C., and ARCH COAL, INC., Defendants.

PLAINTIFF DILLON'S MOTION FOR FRONT PAY AND INTEREST

The plaintiffs, Michael E. Clawson and Jared L. Dillon, through their undersigned counsel, Killian, Guthro & Jensen, P.C., hereby submit their Motion for Front Pay and Interest, and in support thereof, state as follows: I. FRONT PAY FOR JARED DILLON Dillon, even if he had not been terminated from Oxbow, would have continued to suffer economic loss for a period of time after trial and judgment. Dillon should receive an award of front pay for his continued losses.1 Front pay damages are authorized by 42 USC § 2000e5(g)(1). Pollard v. E.I. DuPont de Nemours Co., 532 U.S. 843, 853-54 (2001). "[F]ront pay is simply money awarded for lost compensation during the period between judgment and

Clawson is not seeking an award of front pay because he is not seeking economic damages for any period after he turned down the offer of reemployment with Mountain Coal.

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reinstatement or in lieu of reinstatement." Id. at 846. Front pay is an issue to be determined by the Court. McCue v. Kansas Dept. of Human Resources, 165 F.3d 784, 791-92 (10th Cir. 1999). A. Front Pay is Appropriate in Lieu of Reinstatement

In this case, Dillon should be awarded front pay in lieu of reinstatement.2 The Court has already noted the contentiousness of the litigation, and such contentiousness is likely to prevent any functional working relationship in the future. Further, the facts of this case are analogous to those in which the Eighth Circuit affirmed an award of front pay over reinstatement. Mathieu v. Gopher News Co., 273 F.3d 769, 778 (8th Cir. 2001). In Mathieu the jury found that either the plaintiff was actually disabled, or was regarded as such by the defendant. Id. The plaintiff was terminated and was not offered accommodation at the time of his termination. Id. The court found that if reinstatement were ordered, there would be inevitable conflicts regarding accommodation and the plaintiff's ongoing limitations. Id. Perhaps most importantly, the person responsible for the discriminatory decisions would be the person ultimately responsible for overseeing reinstatement. Id. This case is similar to the Mathieu case. The jury found that Mountain Coal regarded Dillon as disabled. Dillon was fired, and was not offered an accommodation at the time of termination. Dillon continues to have restrictions. Based on the evidence presented, and defendants' denial of an ability to accommodate Dillon, there would be future conflicts over accommodation. Langrand was the person in charge of implementing the ADA and was an important individual in the decision to terminate Dillon. Langrand remains with the company

If defendants argue that reinstatement would be appropriate, but is prohibited due to Dillon's failure to mitigate, the court should be aware that the Tenth Circuit has held that a failure to mitigate damages has no bearing on reinstatement. Dilley v. Supervalu, Inc., 296 F.3d 958, 967-68 (10th Cir. 2002).

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and remains the head of the human resources department. It is likely that Langrand would be heavily involved in the reinstatement of Dillon, as well as being involved in any accommodation issues. All of these factors, in addition to the contentiousness of the case, make front pay appropriate in lieu of reinstatement. B. Dillon's Front pay Damages Should be Reduced, but not Eliminated, due to his Failure to Mitigate

Dillon was terminated from Oxbow mine for cause, and for this reason his front pay damages should be reduced. However, the failure to mitigate should not cut off his front pay damages entirely, but should only serve to reduce them. Title VII and the ADA damage provisions are modeled on those contained in the NLRA. Albemarle Paper Co. v. Moody, 422 U.S. 405, 419 (1975); Bleek v. Supervalu, Inc., 95 F.Supp. 2d 1118, 1122 (D. Mont. 2000). Even the case principally relied on by defendants in their mitigation arguments looked to the NLRA for guidance. Brady v. Thurston Motor Lines, Inc., 753 F.2d 1269, 1277-1280 (4th Cir. 1985) (citing in particular the Knickerbocker Plastics decision). However, Brady inexplicable deviates from the NLRA rule, including Knickerbocker Plastics. Under the NLRA, a "for cause" termination from subsequent employment only reduces damages it does not eliminate them. NLRB v. Hopcroft Art & Stained Glass Works, Inc., 692 F2d 63, 65 (8th Cir. 1982); Knickerbocker Plastic Co., Inc., 132 NLRB 1209, 1215 (August 25, 1961). This understanding of mitigation should be used under the ADA, because the ADA damage provisions are modeled on the NLRA. Further, the Tenth Circuit has rejected a large portion of the logic underlying the Fourth Circuit's decision in Brady. The Fourth Circuit analogized getting fired to voluntarily quitting, and stated that both are a voluntary removal from the work force which should cut off damages.

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Brady, 753 F.2d at 1278-1280. However, the Tenth Circuit has held that, depending on circumstances, back pay can be awarded at the discretion of the Court for a period of time after a plaintiff voluntarily quits subsequent employment. Whatley, 707 F.2d at 1137-38. There is no reason to think a different rule would apply to front pay. If voluntarily quitting a job, but continuing to look for employment does not cut off back pay, getting fired but continuing to look for employment should not cut off front pay. This court should follow the example set in Baker v. John Morrell & Co., 263 F.Supp. 2d 1161 (N.D. Iowa 2003). In Baker, the plaintiff who was discriminated against and constructively discharged obtained subsequent employment. Id. at 1175. She left her subsequent employment without first finding alternate comparable employment, resulting in a period of unemployment. Id. The Court stated "A failure to mitigate does not completely foreclose a front pay award . . . It does, however, affect the amount the plaintiff can recover." Id. at 1181-82. The Court therefore considered what she could have made had she not quit, through her period of unemployment, and deducted that amount from the plaintiff's damages. Id. at 1182. The case was later affirmed. Baker v. John Morrell & Co., 382 F.3d 816 (8th Cir. 2004). Dillon acknowledges his failure to mitigate. In fact, Brennan's calculations go further than the Baker court and bases the front pay calculation on Dillon remaining employed at Oxbow, even after he obtained employment elsewhere. Finally, there is the plain language of the statute itself. 42 USC § 2000e-5(g)(1) provides that: "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 statute has been interpreted to provide for front pay as well, so this mitigation provision would also apply to

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front pay. The provision specifically provides for a reduction in damages when a plaintiff fails to use reasonable diligence in obtaining earnings, it does not provide for cutting off damages. It can be reasonably assumed that Congress knew the difference between reducing and eliminating damages, and meant "reduce" when it used that word. C. Calculation of Dillon's Front Pay Damages

Jared Dillon is requesting $58,039 in front pay damages. This request is documented in Ron Brennan's report on front pay. (Attachment 1, Economic Report of Ron Brennan, Including Front Pay). Mr. Brennan takes account of Dillon's failure to mitigate by assuming that Dillon would have continued to work at Oxbow even after his first termination. Even if Dillon would have continued at Oxbow, it would have taken him until 2012 to completely catch up to what he would have been earning at Mountain Coal. Page two of the report shows that the difference in the value of pay and fringe benefits over that time equals $64,110. The present value of this amount is calculated at $58,039. This amount is reasonable, and is the amount requested by Dillon in front pay damages. To the extent a hearing is necessary to resolve issues of fact in awarding front pay, Dillon requests such a hearing before the entry of the final judgment. II. INTEREST "Interest shall be allowed on any money judgment in a civil case recovered in a district court." 28 USC § 1961(a). Dillon is therefore entitled to post-judgment interest on all of his damages, including front pay. Dillon requests interest at the statutory rate, as provided in 28 USC § 1961, on his judgment. Based upon the Federal Reserve website, if judgment had been entered on April 21, 2006, the interest rate would be 4.91%. However, back pay and front pay have yet to be determined, and a judgment must be set forth on a separate document. Fed. R.

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Civ. P. 58. Therefore, Dillon requests the appropriate rate be determined based on the actual date of the entry of judgment, pursuant to 28 USC § 1961(b). Front pay damages, by their nature, only occur in the future. Thus, Dillon is not requesting any pre-judgment interest on his front pay damages. CONFERRAL Plaintiffs' counsel has conferred with defense counsel concerning this motion. Defendants object to this motion. CONCLUSION An award of front pay, with post-judgment interest, is appropriate for Dillon in this case. Dillon requests an award of front pay in the amount of $58,039. If a hearing is necessary to resolve any factual disputes regarding front pay, Dillon requests such a hearing before the entry of a final judgment. RESPECTFULLY SUBMITTED this 11th day of May, 2006.

s/ J. Keith Killian J. Keith Killian Damon Davis Killian, Guthro & Jensen, P.C. 225 N. 5th Street Grand Junction, CO 81501 Telephone: (970) 241-0707 FAX: (970) 242-8375 E-mail: [email protected] Attorney for Plaintiffs Michael E. Clawson and Jared L. Dillon

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UNITED STATES DISTRICT COURT FOR THE DISTRIT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on May 11, 2006, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following e-mail addresses: [email protected] [email protected] and, I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand-delivery, etc.) indicated by the non-participant's name: Mr. Michael Clawson 38506 Back River Road Paonia, CO 81428 Mr. Jared Dillon 35404 Back River Road Hotchkiss, CO 81419 Mail

Mail

s. J. Keith Killian J. Keith Killian Attorney for Plaintiffs Killian, Guthro & Jensen, P.C. 225 N. 5th Street Grand Junction, CO 81501 Telephone: (970) 241-0707 Fax: (970) 242-8375 [email protected]

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