Pickens v. Se. Pa. Transp. Auth., CIVIL ACTION No. 15-1489

Anita B. Brody, J

MEMORANDUM

In 2015, Plaintiff James Pickens, a mechanic, brought suit against his current employer, Defendant Southeastern Pennsylvania Transportation Authority ("SEPTA"). Pickens asserted two Title VII causes of action, a failure to promote claim and a retaliation claim. ECF No. 1. A five-day jury trial was held from February 27 to March 3, 2017. ECF No. 53. The jury found against Pickens' on his failure to promote claim, but found in his favor on the retaliation claim. The jury awarded Pickens nominal damages of $1.00. ECF No. 60.

Because I ruled that any economic losses would be considered post-trial, Pickens now moves for an award of lost wages, specifically for lost overtime pay, which he alleges stems from the retaliation he suffered. He also seeks back pay for the five days he was present at trial, ECF No. 59, as well as attorney's fees and costs. For the reasons set forth below, Pickens' motion for lost wages is denied, and his motion for attorney's fees and costs is granted in part and denied in part.

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I. BACKGROUND

Plaintiff James Pickens, an African American, is a second-class mechanic currently employed by Defendant SEPTA at the Berridge Shop. In 2012, Pickens sought a promotion to first-class mechanic. In August of that year, he was denied the promotion and he asserted that the promotion protocol, which included a series of on-the-job trainings and a performance exam, was infected by racial discrimination. He also asserted that after he complained to management about his promotion denial and filed a complaint with the Equal Opportunity Employment Commission ("EEOC"), SEPTA retaliated against him. He claimed that he was subjected to coworker abuse, and that management retaliated against him by issuing him a series of disciplinary infractions and assigning him to do repair work in a burdensome area of the shop.

In 2015, Pickens filed a Complaint against SEPTA in which he alleged several acts of retaliation, including abusive treatment and undeserved disciplinary write-ups. ECF No. 1. But in the lead up to and during trial, Pickens expanded his theory of retaliation. In his pretrial memorandum, Pickens asserted that SEPTA's retaliatory conduct included a restriction on his ability "to work overtime." ECF No. 24 at 4. Pickens also testified at trial, albeit briefly, that he felt his overtime opportunities were restricted after he complained of discrimination. Trial Tr. vol. 1, 78:9-21, Feb. 27, 2017. However, in his proposed jury instruction, he listed only "work assignments and harassment by SEPTA's employees" as ways the jury could find retaliation. ECF No. 25 at 22. The jury was consequently not instructed on lost overtime as a form of retaliation.

On June 13, 2017, an oral argument and evidentiary hearing was held on the issue of lost wages and attorney's fees. ECF No. 72. At the hearing, Pickens did not call any witnesses, but presented evidence of overtime receipts and pay stubs. SEPTA called one witness, Mike Civera,

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former Director of Maintenance, to testify to the overtime procedures at the Berridge Shop.

Between 2010 and 2014, Pickens worked the following number of overtime hours:

Pl.'s Br. Lost Wages 3, ECF No. 77. Pickens claims his overtime pay was restricted during the following periods:

• February 1, 2013 - December 31, 2013 (immediately after filing his EEOC complaint on January 30, 2013). ECF No. 77 at 9.

• March 29, 2014 - May 31, 2014.¹ ECF No. 77 at 9.

Pickens also provides the overtime numbers for all other second-class mechanics during the periods of alleged retaliation. The overtime numbers are as follows:

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Pl.'s Br. Lost Wages 5-7, ECF No. 77.

For lost wages stemming from retaliatory denial of overtime, Pickens seeks an award commensurate with his "average overtime over the years." Pl.'s Br. Lost Wages 9, ECF No. 77. For 2013, this amounts to approximately $9,000 for the eleven months he did not work overtime. For the second quarter of 2014, Pickens seeks an amount "similar" to what he earned in the first quarter of 2014, approximately $3,000. In sum, he seeks $12,438 plus 6% interest to the present day.

Additionally, Pickens seeks an award of attorney's fees in the amount of $380,051 and an award of costs in the amount of $5,912.81. Pl.'s Br. Attorney's Fees 9, ECF No. 76.

II. DISCUSSION

Pickens claims that immediately following the filing of his EEOC complaint on January 31, 2013, SEPTA retaliated against him by denying him the ability to earn overtime for the rest of the year. Furthermore, he argues that he faced retaliation via denied overtime in the second quarter of 2014, prior to leaving work for shoulder surgery in June 2014. SEPTA responds that Pickens is not entitled to back pay for lost overtime because he did not present the issue to the jury as a form of retaliation, and therefore SEPTA was not on notice of this element of damages. Def.'s Supp. Resp. Damages and Attorney's Fees 1, ECF No. 78. SEPTA further argues that even if Pickens is eligible for back pay, his lost overtime is too speculative and difficult to quantify, and therefore his claim should be denied.

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With respect to attorney's fees, Pickens claims he is the prevailing party and therefore eligible for an award of a reasonable fee. SEPTA argues that in nominal damages cases, attorney fee awards are disfavored, and Pickens' case does not present any special circumstances to overcome this presumption against fee awards.

a. Back Pay

A successful Title VII plaintiff can collect "back pay . . . , or any other equitable relief as the court deems appropriate." 42 U.S.C. § 2000e-5(g)(1). Lost wages, also known as back pay, are "designed to make victims of unlawful discrimination whole by restoring them to the position they would have been in absent the discrimination." Donlin v. Philips Lighting N. Am. Corp., 581 F.3d 73, 84 (3d Cir. 2009). The amount of back pay awarded is calculated by comparing the amount of wages the plaintiff would have earned, absent the unlawful discrimination, and the amount of wages the plaintiff actually earned. Hare v. Potter, 549 F. Supp. 2d 688, 692 (E.D. Pa. 2007) (citing Durham Life Ins. Co. v. Evans, 166 F.3d 139, 156 (3d Cir.1999)).

Back pay, "is not an automatic or mandatory remedy, but 'one which the courts may invoke' at their equitable discretion." Donlin, 581 F.3d at 84 (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 415 (1975)). Whether or not to award lost wages to a prevailing plaintiff is a matter of discretion for the court. Spencer v. Wal-Mart Stores, Inc., 469 F.3d 311, 315 (3d Cir. 2006). Like other elements of damages, a plaintiff has the burden of proving back pay by a preponderance of the evidence. See Third Circuit Model Civil Jury Instruction § 5.4.3 (March 2017).

There is a general presumption in favor of back pay awards after a finding of discrimination in violation of Title VII. Booker v. Taylor Milk Co., 64 F.3d 860, 864 (3d Cir. 1995). But back pay cannot be awarded from thin air. "A 'back pay remedy must be specifically

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tailored to expunge only the actual, and not merely speculative, consequences of the unfair labor practices.'" Hare, 549 F. Supp. 2d at 695 (quoting Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 900 (1984)). "Damages cannot be awarded if it is uncertain whether the damages sought resulted from the unlawful act." Id. (citing Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 562 (1931)). A plaintiff "cannot rest her entitlement to back pay on mere speculation about what she would have earned in the absence of discrimination." Szeinbach v. Ohio State Univ., 820 F.3d 814, 824 (6th Cir. 2016), cert. denied, 137 S. Ct. 198 (2016) (citation omitted). In the context of overtime back pay awards, other courts to consider the issue have found that "the question of whether [the plaintiff] would have earned any overtime is entirely too speculative to impose additional damages for such hypothesized work." Curtis v. Robern, Inc., 819 F. Supp. 451, 459 (E.D. Pa. 1993).

I decline to award back pay for lost overtime in this case. The overtime numbers presented by Pickens do not clearly evince a retaliatory denial of overtime pay. Though he presents the overtime hours of all second-class mechanics, because seniority is an influential factor in the awarding of overtime, only those mechanics with less seniority than Pickens present a relevant comparison.⁶ There were three second-class mechanics with less seniority than

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Pickens during the periods in question: Felipe Suarez, David Taylor and Michael Butler. H'rg Tr.: 42:9-11, June 13, 2017, ECF No. 74. See also Def. Post-Trial Ex. 1.

Although it is suspicious that Pickens did not earn any overtime pay in 2013 after January, when he complained of discrimination, there also appears to be a precipitous drop in overtime pay for the other two low-seniority second-class mechanics during that year. Felipe Suarez earned no overtime from February 17, 2013 until November 23, 2013, and still earned fewer overtime hours in all of 2013 than Pickens earned in January alone. Def. Post-Trial Ex. 5 at 2. Similarly, Dave Taylor...