Barnes v. Wis. Dep't of Corr., 18-cv-105-jdp

VERLA BARNES, Plaintiff, v. STATE OF WISCONSIN DEPARTMENT OF CORRECTIONS, Defendant.

18-cv-105-jdp

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

January 8, 2020

OPINION and ORDER

A jury awarded plaintiff Verla Barnes $600,000 in compensatory damages on her claims that the Wisconsin Department of Corrections failed to provide her a reasonable accommodation for a disability and then fired her when she complained, in violation of the Rehabilitation Act. The case is now before the court on Barnes's request for equitable relief, Dkt. 86, which is determined by the court rather than the jury.

For the reasons explained below, the court will award Barnes $115,220 in back pay, $81,900 in front pay, and $8,523 in prejudgment interest. The court will also direct the Department to expunge Barnes's record.

BACKGROUND

Barnes worked as a probation agent for the Department from 1998 to 2016. In 2015, she injured her foot on the job. After taking some time off, she transitioned back to work, but she says that the Department didn't give her the accommodations she needed.

In 2016, she reported that someone had stumbled into her and used a racial epithet while she was on the job at the Dane County Courthouse. After an investigation, the Department determined that Barnes had fabricated the incident. The Department then fired Barnes, relying on a policy that authorized termination for lying. Barnes denies that she lied, and she contends that the Department terminated her for complaining about disability discrimination. The jury found both that the Department failed to accommodate Barnes and that her termination was retaliation for complaining.

In 2017, after applying for 28 jobs, Barnes obtained a new position as an assistant to the housing director at Porchlight Inc., a nonprofit organization that provides services for the homeless. She remains employed at Porchlight but has continued applying for other jobs. She is 54 years old.

ANALYSIS

A. Overview of Barnes's requested relief

Barnes seeks back pay (lost wages and benefits since she was terminated) and front pay (loss of future pay and benefits in lieu of reinstatement). See Consol. Rail Corp. v. Darrone, 465 U.S. 624, 630 (1984) (court may award back pay as equitable remedy for violation of the Rehabilitation Act); Downes v. Volkswagen of Am., Inc., 41 F.3d 1132, 1141 (7th Cir. 1994) (court has discretion to award front pay as equitable relief when reinstatement is not "appropriate"). Barnes also asks for "[e]xpungement of [her] employment file at DOC of any reference to her termination and expungement of any related violation of work rules expungement of her work file." Dkt. 86, at 4. The department doesn't address the request for expungement, so the court will assume that the request is undisputed and will grant that relief.

Barnes calculated the monetary aspect of her request for equitable relief as follows:

1. Back pay for the time Barnes was unemployed after the Department terminated her (May 10, 2016, through September 9, 2017): $68,600 (70 weeks x $980 per week) Barnes says that, if she hadn't been fired, she "would have earned annually the equivalent of the average of her three highest-earning years," which she says averages out to "$980.00 per week after all deductions and contributions to benefit or pension plans." Dkt. 86-1, at 1.

2. Back pay for the difference between the amount Barnes would have made with the Department and the amount she actually made with her new employer from the day she started the new job to the day the jury rendered its verdict (September 9, 2017, to October 25, 2019): $46,200 (111 weeks x $420 per week)

Barnes says that she makes $560 per week at Porchlight, $420 less than what she calculates she would have been making at the Department ($980).

3. Lost past benefits: $82,800 or $75,198

Barnes proposes alternative calculations for her lost past benefits. First, she says that she is entitled to the full amount that the Department would have spent on her benefits from the date of her termination until October 25, 2019. She says that amounts to $82,800, or $460 per week for 180 weeks. Second, she acknowledges that she obtained health insurance from Porchlight on June 1, 2019. If the weeks after June 1 are excluded, Barnes's calculation is reduced to $73,140, or $460 per week for 159 weeks. But she says that the Department paid $98 a week for benefits other than health insurance that she doesn't receive from Porchlight. (She doesn't explain what those other benefits were.) Adding that amount results in a total of $75,198 in lost past benefits.

4. Front pay for the difference between the amount Barnes would have made with the Department and the amount she will make with Porchlight from October 26, 2019, until Barnes retires: $236,460 or $105,000

Again, Barnes proposes alternative figures for front pay. Both figures are based on an assumption that Barnes will remain with Porchlight until she retires and would have made $420 more per week with the Department. The larger figure rests on an assumption that Barneswill work until she is 65; the smaller figure rests on an assumption that Barnes will work until she is 59. Barnes's only explanation for choosing these two ages is that she "planned to work until age 59," but now "will have to work full time six years longer than [she] planned." Dkt. 90, ¶¶ 14, 17.

5. Future lost benefits until Barnes turns 65: $258,980 or $55,174

The larger figure rests on an assumption that Barnes is entitled to the full amount that the Department would have paid for her benefits (563 weeks x $460 per week). The smaller figure rests on an assumption that Barnes is entitled to only the portion of the benefits that isn't health insurance (563 weeks x $98 per week).

If all the larger amounts are accepted, Barnes's proposed total is $693,460. If the smaller amounts are accepted, the proposed total is $350,592.

The court will now turn to the Department's objections to Barnes's requests.

B. Back pay

1. Lost wages

The Department agrees that Barnes is entitled to lost wages for the entire time between her termination and the trial. It doesn't contend that Barnes failed to mitigate her damages. And the Department agrees with some of Barnes's calculations. It accepts $980 per week as an appropriate estimate of Barnes's salary with the Department, and it accepts $68,600 as the appropriate amount of back pay for the time Barnes was unemployed after the Department terminated her (May 10, 2016, through September 9, 2017). It also accepts $560 per week as an appropriate estimate of Barnes's salary at Porchlight from September 9, 2017, to December 31, 2018.

But the Department says that Barnes's Porchlight salary in 2019 was $652.40 per week, not $560 per week. So it proposes that the court award $30,240 in back pay for September 10, 2017, to December 31, 2018 (72 weeks x $420 per week) and $12,776.40 in back pay for January 1, 2019, to October 25, 2019 (39 weeks x 327.60 per week).

In her reply brief, Barnes doesn't dispute the Department's calculation of her 2019 salary with Porchlight. But she says that it is appropriate to use her 2018 salary to calculate back pay for 2019 because it is reasonable to assume that Barnes would have also received pay increases at the Department since 2016.

The court agrees that it is reasonable to assume that the Department would have given Barnes modest pay raises commensurate to the raise that Barnes received from Porchlight. That is consistent with Barnes's salary history at the Department, which shows that she received increases most years. Dkt. 90-3. So the court will award Barnes the full amount that she requests for lost wages, or $115,220.

2. Lost benefits

There is no dispute that lost benefits may be awarded as equitable relief. See E.E.O.C. 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."). The Department objects to any award of past benefits because the figure Barnes proposed is based on what the Department would have paid, not on the expenses Barnes incurred as a result of not having those benefits. Although Barnes says that she is entitled to "[d]isgorgement of the amount WDOC is saving annually by not having to provide a benefits package to Barnes," Dkt. 86, at 2, the Department says that disgorgement isn't part of back pay and isn't available against a stage agency that doesn't make a profit. Dkt. 91, at 6 (citingChauffeurs, Teamsters & Helpers, Local No. 391 v. Terry, 494 U.S. 558, 570 (1990) (rejecting argument that disgorgement is a proper measure of back pay because it is a theory of "money wrongfully withheld" and applies in "actions for disgorgement of improper profits" (internal quotations and alterations omitted)). Because Barnes has had health insurance since her termination (first through her husband and then through Porchlight) and she doesn't attempt to quantify any health benefits she lost, the Department says that court should not award damages related to lost health insurance. This problem also applies to the other benefits Barnes received from the Department. She neither identified what those benefits were nor explained what the loss of those benefits has or will cost her.

Neither party cites any authority for the proper measure of lost benefits. But several courts have held that lost benefits must be calculated based on actual replacement costs or expenses that would have been covered under the benefits policy, not based on the amount that would have been paid by the employer. See, e.g., Gunter v. Bemis Co., Inc., 906 F.3d 484, 493 (6th Cir. 2018) ("Courts and juries must calculate lost-benefits awards based on actual expenses that an employee incurs in obtaining other insurance or in receiving care that would have been covered, not based on the value of the lost benefits."). Accord Lubke v. City of...