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").
Given the important reasons of statutory policy for resolving doubts relating to damages in favor of the innocent employee, it would be permissible to infer that Mason would not have suffered the disabling injuries had she been promoted and that she therefore should be reimbursed for salary lost due to the accident, provided that (1) Mason's injury was sustained during the course of her employment, and (2) the Project Director job entailed significantly more driving than the Assistant Residential Director position. Because these two provisos are essentially questions of fact, it will be up to the jury, if it finds that TAIG discriminatorily denied Mason a promotion, to determine whether plaintiff has proven by a preponderance of the evidence that (1) Mason's injury was sustained during the course of her employment and (2) the Project Director job entailed significantly more driving than the Assistant Residential Director position. If the jury finds that these conditions are met, then the back pay award will not be offset by the stated Project Director salary that Mason never received due to the automobile accident.
Only by taking account of such losses will the back pay award serve its purpose of "completely redressing the economic injury the claimant has suffered as a result of discrimination." Rasimas, 714 F.2d at 626.
B. Deductibility of Workmen's Compensation Benefits
This leaves only the question of whether-- in the event that (1) Mason prevails on either her race discrimination claim or her age discrimination claim and (2) the stated Project Director salary is not deducted from her back pay award, see supra Part II, A-- Mason's workmen's compensation benefits, accounting for two-thirds of her Project Director salary, should be offset against amounts received as back pay. Monetary damages paid by employers who practice unlawful discrimination serve two principal purposes: (1) to deter illegal employment practices; and (2) to recompense individuals for injuries caused by the employer's conduct. Rodriguez, 569 F.2d at 1237. In my view, neither purpose is served by forcing TAIG to repay as back pay amounts already paid to Mason as workmen's compensation benefits for lost wages.
The "collateral source" doctrine "permits a tort victim to recover more than once for the same injury provided these recoveries come from different sources." Smith v. United States, 587 F.2d 1013, 1015 (3d Cir. 1978) (footnote omitted); see Restatement (Second) of Torts § 920(A)(2) (1979). For example, an accident victim may recover medical expenses from a tortfeasor even though the victim's own insurance policy covers such costs. Smith, 587 F.2d at 1015. Courts have split on the question whether workmen's compensation benefits are subject to the "collateral source" rule and hence not to be deducted from an employment discrimination back pay award. Compare Knafel v. Pepsi-Cola Bottlers of Akron, 899 F.2d 1473, 1480 (6th Cir. 1990) (workmen's compensation benefits not deductible); Cline v. General Elec. Capital Auto Lease, 757 F. Supp. 923, 933 (N.D. Ill. 1991) (apparently awarding plaintiff full salary for two years in which she received disability pay); Catlett v. Missouri State Highway Comm'n, 627 F. Supp. 1015, 1018 (W.D.Mo. 1985) (same as Knafel); with Nichols v. Frank, 771 F. Supp. 1075, 1079 (D. Or. 1991) (back pay award must be reduced by the amount that plaintiff received pursuant to her workmen's compensation claim); Austen v. Hawaii, 759 F. Supp. 612, 629 (D. Hawaii 1991) (same), aff'd 967 F.2d 583 (1992); Blue and White, 674 F. Supp. at 1583 (workmen's compensation award should be offset, insofar as it was attributable to lost wages). As plaintiff points out, the Third Circuit has held that unemployment compensation should not be deducted from a back pay award under Title VII, Craig, 721 F.2d at 81-85, or under the ADEA, McDowell, 740 F.2d at 215-17. Similarly, the Third Circuit has held that social security benefits cannot be set off against back pay awards under Title VII. Maxfield, 766 F.2d at 793-95. In those cases, the Third Circuit, focusing on what the defendant should pay rather than what the plaintiff should receive, reasoned that a wrongdoer should not get the benefit of payments that come to the plaintiff from a source collateral to the defendant. In Craig (on which McDowell and Maxfield built), the Third Circuit expressly relied on the Supreme Court's reasoning in Gullett Gin, supra, where the Court upheld the NLRB's refusal to deduct unemployment compensation from back pay. The Gullett Gin Court observed:
Payments of unemployment compensation were not made to the employees by respondent but by the state out of state funds derived from taxation. True, these taxes were paid by employers, and thus to some extent respondent helped to create the fund. However, the payments to the employees were not made to discharge any liability or obligation of respondent, but to carry out a policy of social betterment for the benefit of the entire state.