The opinion of the court was delivered by: LOUIS H. POLLAK
In this action, plaintiff Mary Mason alleges, pursuant to 42 U.S.C. § 1981 and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq ; that she was denied a promotion by her former employer, The Association for Independent Growth ("TAIG"), because of her race and age.
Before me is a partial summary judgment motion filed by defendant TAIG, seeking to delimit the terms of plaintiff's damages (doc. # 37). Mason has responded to this motion. For the reasons that follow, defendant's motion will be denied insofar as it seeks to limit plaintiff's damages to the difference in pay scale between the position to which she aspired and the position in which she remained.
The following facts are essentially undisputed. Mason, a black woman, was hired as a Project Director at TAIG-- a nonprofit organization that provides residential and day programs to persons diagnosed as mentally retarded or mentally ill-- on May 23, 1988. At that time, she was fifty years old. As a Project Director, her primary responsibility was supervising staff at residence placements in the field.
On April 10, 1989, Christine DeVore-- a thirty-five year old white woman-- was upgraded from a part-time position as a "Temporary Residential Monitoring Coordinator" to a newly-created, full-time position of "Assistant Residential Director" in the headquarters of TAIG. The decision to create that position and give it to DeVore was made by TAIG's Executive Director, Joseph Bucci, who was then thirty-nine years old. Bucci never posted the position even though TAIG's policy, set out in an employee handbook, specifies that position vacancies are to be posted on bulletin boards at all program locations for ten days. Mason claims that she would have applied for the Assistant Residential Director job had she known about it, and that she was denied the opportunity to apply because of her race and age.
On October 2, 1989, allegedly while travelling from one field site to another during the course of her regular work as a Project Director, Mason was injured in an automobile accident. Thereafter, Mason took several disability leaves from TAIG, claiming that she could not perform her work. From the time of her accident until she resigned from TAIG in May 1992
(a period of about two-and-a-half years), Mason worked only about five months and received workmen's compensation benefits for all the periods of her absence. These benefits were set by law at two-thirds of her Project Director salary.
This motion presents the issue whether, in a failure-to-promote case, a back pay award should include salary lost on account of work-related injuries that the discriminatee might have avoided if promoted. Through this motion, TAIG seeks a determination that Mason's maximum recovery on her discrimination claims is the difference between her stated Project Director salary-- notwithstanding that for some two-and-a-half years she received no salary and instead received statutory benefits amounting to two-thirds of salary-- and Christine DeVore's salary in the course of the three-odd years between DeVore's placement in the job of Assistant Resident Director (April 1989) and Mason's resignation from TAIG (May 1992). Because the salary differential is approximately $ 3,000 annually, on defendant's calculus Mason would in no event be entitled to more than approximately $ 10,000 in back pay (3 X $ 3,000).
Mason-- who argues that she would not have been involved in the automobile accident had she been promoted to the position of Assistant Resident Director (a headquarters job which allegedly did not demand regular driving visits to field sites)-- contends that she should be able to recover the full amount of DeVore's salary as an Assistant Resident Director over the three years, unreduced by either (1) the stated Project Director salary, which, due to her series of disability leaves, she did not in fact receive;
or (2) the workmen's compensation benefits she did receive.
A. Salary Lost Due to Plaintiff's Disability
The underlying premise in computing an employment discrimination plaintiff's award-- whether under Title VII, section 1981 or the ADEA-- is that the injured worker must be restored to the economic position in which the worker would have been but for the discrimination. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 45 L. Ed. 2d 280, 95 S. Ct. 2362 (1975) (The purpose of Title VII is "to make persons whole for injuries suffered on account of unlawful employment discrimination"); Maxfield v. Sinclair, Int'l, 766 F.2d 788, 796 (3d Cir. 1985) ("Congress intended victims of age discrimination to be made whole by restoring them to the position they would have been in had the discrimination never occurred."), cert. denied, 474 U.S. 1057, 88 L. Ed. 2d 773, 106 S. Ct. 796 (1986); T & S Serv. Assocs., Inc. v. Crenson, 666 F.2d 722, 728 (1st Cir. 1981) (same for § 1981). Under this make-whole philosophy, a successful § 1981 or ADEA plaintiff is entitled to compensation for loss of past wages (i.e., back pay). Gunby v. Pennsylvania Elec. Co., 840 F.2d 1108, 1119 (3d Cir. 1988) (§ 1981/Title VII plaintiff), cert. denied, 492 U.S. 905, 106 L. Ed. 2d 564, 109 S. Ct. 3213 (1989); McDowell v. Avtex Fibers, Inc., 740 F.2d 214, 217 (3d Cir. 1984) (ADEA plaintiff), vacated and remanded on other grounds, 469 U.S. 1202 (1985); Craig v. Y & Y Snacks, 721 F.2d 77, 85 (3d Cir. 1983) (back pay is "the presumptive remedy for unlawful employment discrimination"). "The appropriate standard for the measurement of a back pay award is to take the difference between the actual wages earned and the wages the individual would have earned in the position that, but for the discrimination, the individual would have attained." Gunby, 840 F.2d at 1119.
Taking the "actual" wage formula at face value, one might think it obvious that a back pay award should not be reduced by stated salary that a plaintiff never actually received. However, in a variety of situations, a back pay award is reduced, or eliminated entirely, if the plaintiff has not received-- or, indeed, could not receive-- offsetting income in the post-discriminatory period. The federal discrimination statutes at issue in this case require mitigation of damages. See Maxfield, 766 F.2d at 794 n. 5 (ADEA); Craig, 721 F.2d at 82 (Title VII); 42 U.S.C. § 2000e-5 (g) ("Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable)."
Therefore, an employer is allowed to offset any amount that the employee did not actually receive, but should have received, if reasonably diligent. Further, as a general rule, a claimant will not be allowed back pay during any periods of disability. See NLRB v. Louton, Inc., 822 F.2d 412, 415 (3d Cir. 1987); Canova v. NLRB, 708 F.2d 1498, 1505 (9th Cir. 1983); Loubrido v. Hull Dobbs Co., 526 F. Supp. 1055, 1061 (D. Puerto Rico 1981) (footnote omitted) (excluding from back pay calculation a period in which plaintiff was disabled because "under such circumstances he could not have worked for the defendant or anybody else"). That is to say, if Mason had sustained her injuries while on a sight-seeing trip during a vacation, she likely would not be able to recover any back pay at all during the time that she was unavailable to work (or would only be able to recover the difference in disability pay between the two jobs) on the theory that she similarly would not have been able to work as an Assistant Residential Director. See Soto Segarra v. Sea-Land Serv. Inc., 581 F.2d 291, 297 (1st Cir. 1978) (back pay award must be adjusted to account for heart attack plaintiff suffered sometime after his discharge); see also NLRB v. Gullett Gin Co., 340 U.S. 361, 364, 95 L. Ed. 337, 71 S. Ct. 337 (1951) (emphasis in original) ("No consideration has been given or should be given to collateral losses in framing an order to reimburse employees for their lost earnings . . . ."); American Mfg. Co., 167 N.L.R.B. 520, 522 (1967) ("As the claimant's loss [of income due to illnesses] therefore cannot be said to have a likely relationship to the unlawful discrimination, disallowance of back pay for all periods of unavailability because of such illnesses is proper."). In short, it is clear that an employer who has discriminated need not reimburse the plaintiff for salary loss attributable to the plaintiff and unrelated to the employment discrimination.
In the case at bar, however, Mason argues that she would not have sustained the income-reducing injury had she been promoted to a job that required significantly less driving; therefore, on Mason's view, to be made whole she must be awarded full back pay for the periods of work she missed due to disability. Cf. Wells v. North Carolina Bd. of Alcoholic Control, 714 F.2d 340, 342 (4th Cir. 1983) (plaintiff, denied promotion from stock clerk to sales clerk on account of his race, entitled to back pay award after he left his stock clerk job due to back problems because "had he not been wrongfully denied that promotion to relatively light work, it may reasonably be inferred that he would not have suffered an injury to his back or that any back problem would have been less severe. . . . Wells reasonably ended his employment for reasons beyond his control, reasons which were causally linked to the defendant's wrongful denial of a promotion."), cert. denied, 464 U.S. 1044, 79 L. Ed. 2d 176, 104 S. Ct. 712 (1984); Whatley v. Skaggs Cos., 508 F. Supp. 302, 304 n.1 (D. Colo. 1981) (Plaintiff Whatley entitled to full back pay during the three years that he did not work due to a back injury because "Whatley would not have suffered his disabling back injury had [defendant] not terminated him as lobby manager. [Defendant's] act of discrimination forced Whatley from his management position into blue-collar jobs that required strenuous physical labor resulting in injury to his back."), aff'd in relevant part, 707 F.2d 1129 (10th Cir.), cert. denied, 464 U.S. 938 (1983).
While it is true that Mason's argument depends on counterfactual speculation as to whether she similarly would have gotten into an accident had she been promoted to Assistant Residential Director, back pay award determinations inevitably involve recreating the conditions that would have existed absent the unlawful discrimination, and "this process of recreating the past will necessarily involve a degree of approximation and imprecision." International Bhd. of Teamsters v. United States, 431 U.S. 324, 372, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1972); see also Rodriguez v. Taylor, 569 F.2d 1231, 1238 (3d Cir. 1977) ("Trial courts and the parties themselves invariably lack perfect insight to forecast what would have happened had there been no unlawful acts."), cert. denied, 436 U.S. 913, 56 L. Ed. 2d 414, 98 S. Ct. 2254 (1978); cf. Blum v. Witco Chemical Corp., 829 F.2d 367, 375 (3d Cir. 1987) (rejecting argument that speculative nature of future damages is a reason for denying such awards). "The risk of lack of certainty with respect to projections of lost income must be borne by the wrongdoer, not the victim," Goss v. Exxon Office Sys. Co., 747 F.2d 885, 889 (3d Cir. 1984); therefore "any ambiguity in what the claimant would have received but for discrimination should be resolved against the discriminating employer," Rasimas v. Michigan Dep't of Mental Health, 714 F.2d 614, 628 (6th Cir. 1983), cert. denied, 466 U.S. 950, 80 L. Ed. 2d 537, 104 S. Ct. 2151 (1984); see also McKenzie v. Sawyer, 221 U.S. App. D.C. 288, 684 F.2d 62, 77 (D.C. Cir. 1982) (all doubts in calculating damages "are to be resolved against the proven discriminator rather than the innocent employee"); EEOC v. Blue and White Serv. Corp., 674 F. Supp. 1579, 1580 (D. Minn. 1987) ("Doubts about plaintiff's entitlement to back pay and its amount should be resolved against the employer").