Plaintiff experienced no hiatus in securing other employment. From his new employer, plaintiff has earned $ 63,400.62 per year or $ 126,800.04 for the back pay period. Consequently, plaintiff had a loss of earnings of $ 10,652.48 per year or $ 21,304.96 for the two years. Immediately upon leaving the defendants, plaintiff began receiving a severance pay of $ 70,850.00, spread over the succeeding 52 weeks. The severance pay was not money which the plaintiff would have earned had he remained employed by defendants. It was unearned. Thus, it must be credited against the loss of earnings caused to the employee. Since the $ 70,850.00 exceeds plaintiff's total loss of earnings of $ 21,304.96, he has not suffered any back pay loss and would not until the $ 70,850.00 contribution of the employer was exceeded by interim earning differentials.
Plaintiffs asks this court to adopt a year-by-year approach in determining back pay loss, citing Leftwich v. Harris-Stowe State College, 702 F.2d 686, 693 (8th Cir. 1983). In Leftwich, the victim of employment discrimination had suffered earning loses in the first two years following termination. In the third year in his new job, the plaintiff earned an amount which exceeded the past employer's salary by roughly the sum lost in the first two years. The district court held that under the "make-whole" principle the employee had experienced no loss over the three year period. The Eight Circuit disagreed and, without explanation, held that "when ... a plaintiff's interim earnings in any year exceed the wages he or she lost due to the discrimination, that "excess" must not be deducted from any back pay for other years to which the plaintiff is entitled." This approach may have some utility where a court cannot be certain that the subsequent year excess earnings were attributable to cost of living increases or some other factor which would negate any real excess earnings. This situation is not present in this case. Because applying Leftwich here would result in a departure from the "make-whole" principle, I will not follow it.
Even if I did follow Leftwich, its rule would not aid plaintiff here. Defendants have given plaintiff $ 70,850.00 in severance dollars. In Leftwich, there was no severance pay and a loss of earnings. In the instant case, by reason of the termination, plaintiff received a gain of $ 60,197.48 in the first year over what he would have earned in salary had he remained employed by defendants.
Plaintiff argues that he should be allowed to keep this under the Leftwich decision and still claim for a wage differential in the second year. I disagree. That rule on its face applies only to wage differentials. It anticipates that the employee will have received a loss by reason of the termination, not a gain. In applying the Leftwich rule, by its terms, it would be incongruous to treat severance pay as wages which the employee lost due to the discrimination. Had he remained employed he would not have received severance pay. Since the severance pay cannot be deemed earnings for back pay purposes, it must be treated as a voluntary contribution by the employer and credited against the employer's back pay liability. In short, plaintiff has misread and misapplied Leftwich. As of the time of trial, two years after termination by defendants, plaintiff still had a gain of $ 49,545.04.
This court is guided by Rodriguez v. Taylor, 569 F.2d 1231 (3d Cir. 1977), cert. denied, 436 U.S. 913 (1978). The Third Circuit has stated:
The make-whole standard of relief should be the touchstone for the district courts in fashioning both legal and equitable remedies in age discrimination cases. Victims of discrimination are entitled to be restored to the economic position they would have occupied but for the intervening unlawful conduct of employers.