By Robert Margolis, J.D.
It was not speculative for the court to conclude that absent the employer’s violations, the employee would have worked until age 65.
Finding no merit in SkyWest Airlines’ post-trial evidentiary challenges or its contentions that damages awards were speculative, unsupported, and require reconsideration, a federal district court in Colorado has denied the employer’s Rule 59 motions for a new trial after a recent jury verdict finding it liable for disability discrimination and retaliation, and for reconsideration of the court’s subsequent award of over $300,000 in front pay (Hayes v. SkyWest Airlines, Inc., July 19, 2019, Blackburn, R.).
Jury verdict for employee. In 2015, after nine years of employment with SkyWest at the Denver International Airport, the employee was terminated. He suffered from polycystic kidney disease and prior to his termination had been subject to lifting restrictions in his position as a ramp agent. At the time of his termination, he was on medical leave because the employer had concluded that the restrictions disqualified him from that job. Thereafter, he was only able to find part-time work. His wife also lost her job in Denver and when she found other employment in Memphis, they moved.
The employee filed suit against SkyWest for retaliation under the FMLA and for discrimination and retaliation under the ADA. A jury returned a verdict in favor of the employee on all claims and awarded him substantial compensatory and punitive damages. Subsequently, the employee filed a motion for an award of front pay and the court concluded that he was entitled to such an award. After discovery and a hearing on front pay, the court awarded him $307,991 in front pay, based on taking the employee to the age of 65 (13 more years) at $29,000 per year—the difference between the amount he would have earned had he been hired by the company that took over SkyWest’s contract servicing United Airlines at the Denver Airport (Simplicity Aviation), which the evidence at trial supported would have happened, and the amount he actually earned as a part-time employee in Memphis. The employer moved for a new trial and to reconsider the front pay award.
Evidence from subsequent employment. The employer argued that the employee withheld “material” evidence when he supposedly failed to disclose prior to trial that beginning in July 2017, his Memphis employer had placed him on medical leave such that he was not working. The court had discussed that development in the post-trial hearing over front pay, indicating that while the employee was receiving dialysis he was prone to dehydration, which is exacerbated by Memphis’s summertime heat and humidity, and his doctors recommended him not taking that job at all; thus, he was placed on medical leave. The employer argued this “newly discovered evidence” was “material,” as is required to warrant a new trial, since it supported its decision that he could not perform the functions of his job in Denver.
The court disagreed. While there was no dispute that the employee could not perform one aspect of the job (heavy lifting), the evidence at trial was clear that other jobs were available that he could perform, including the job he was in at the time he was forced on medical leave.
In any event, as the court emphasized, the core issue for liability was the employer’s motivation for forcing the employee to take medical leave and then refusing to hire him for other company positions. The employer’s intentions could not have been informed by what another employer did three years later under different circumstances, the court pointed out. Thus, the evidence of this subsequent decision by a different employer was not material, and therefore did not warrant a new trial.
Backpay and punitive damages. The employer also contended that the awards of backpay and punitive damages were improperly speculative and not supported by the evidence. The court disagreed, noting the breadth of jury discretion and finding that the award was well within that discretion. The jury awarded $150,000 in backpay, based on what the employee could have been expected to make had he been hired by Simplicity during the approximately three years between when he was forced to take unpaid medical leave and the jury’s verdict.
The court rejected the employer’s argument that his being hired by Simplicity was speculative. The evidence showed that all of the employer’s Certified Station Trainers who applied to Simplicity were hired by it, and a person with authority to hire at Simplicity testified that he would have hired the employee for that position. The jury need not have accepted the employer’s argument that the only position relevant is the same position at Simplicity that the employee had with the employer.
The court also upheld the award of punitive damages, based on the “appropriate” jury determination that the employer acted with the requisite malice or reckless indifference to the employee’s federally protected rights. Though the jury awarded the employee substantially more than the subsequent backpay award, the statutory cap resulted in the reduction of that award to $300,000, which the court found to be not excessive.
Front pay. The employer argued that a new hearing on front pay should be granted for several reasons, but the court rejected each one. First, the employer contended that the court erred by denying various “eleventh-hour appeals for further discovery” on front pay issues. The employer sought 90 days to discover the employee’s health status and ability to work from him directly, as well as potential employers from whom he sought work, and his efforts to mitigate damages. The court had rejected the request before the front pay hearing as both procedurally improper under Colorado law as well as substantively improper, since the employer had every reason to presume front pay would be sought and gave no explanation why it could not have sought this information during the normal discovery period.
As the court found when denying the motion before the front pay hearing, waiting two weeks before the scheduled hearing to seek a 90-day continuance to conduct discovery that the employer already should have obtained could not be justified by the employer’s argument that it had just learned that the employee had recently received a kidney transplant. The employer was aware at the time that a kidney transplant was imminent. In any event, the employer could adequately explore these questions on cross-examination. Reviewing that decision, the court found no basis for concluding it was in error.
Finally, the court found unpersuasive the employer’s argument that the employee’s entitlement to front pay ended when he accepted new employment in Memphis, given that he subsequently was placed on medical leave due to inability to withstand the Memphis heat. This argument was based on the “facile assumption,” as characterized by the court, that the decision by the Memphis employer meant that the employee could not perform any work at that time. As the court pointed out, the evidence showed that had the employer not discriminated/retaliated against him, the employee would have been hired by Simplicity in Denver, and the evidence also showed that the conditions there would have been within the employee’s restrictions.
For the same reasons, the court rejected the employer’s argument that it was error to project the employee’s working life to last for another 13 years, until he turned 65. He had the potential to work that long for Simplicity.
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