The opinion of the court was delivered by: Terrence F. McVerry, Judge United States District Court
MEMORANDUM ORDER OF COURT
Presently before the Court are the following Motions in Limine:
(1) PLAINTIFF'S MOTION IN LIMINE 1: CALCULATION OF BACK PAY, with brief in support (Document Nos. 46 and 47), and the Reply and brief filed by Defendant (Document Nos. 65 and 66);
(2) PLAINTIFF'S MOTION IN LIMINE 2: OFFSET TO BACK PAY, with brief in support (Document Nos. 49 and 50), and the Reply and brief filed by Defendant (Document Nos. 67 and 68); and
(3) DEFENDANT'S MOTION IN LIMINE NO. 2: EXCLUSION OF IMPROPER EVIDENCE OF ECONOMIC/WAGE LOSS, with brief in support (Document Nos. 53 and 55), and the Response filed by the Plaintiff (Document No. 74).
The Court will address the Motions in combination, as they may all be addressed through the Court's determination of the Plaintiff's back pay award, if any.
I. CALCULATION OF PLAINTIFF'S PROSPECTIVE BACK PAY AWARD
A. Whether Garrett's Supplemental Income through "Moonlighting" should be Considered
Plaintiff argues that an appropriate calculation of his back pay "should be calculated as the difference between Joseph Garrett's base salary and his extra income earned through 'moonlighting' (i.e., his second job) and Plaintiff's base salary plus the extra income he earned through overtime work." (Doc. 47 at 1.) Defendant argues that there is no foundation for the inclusion of Garrett's pay from "moonlighting" since there is no evidence to suggest that at any time during Plaintiff's employment with the School District he had outside employment. Also there is no evidence that the Plaintiff would have obtained outside employment if he had been promoted to Area Commander or the amount(s) he could or would have earned in any such speculative employment. (Doc. 66 at 2.)
The Court finds Plaintiff's argument to be without merit because it is based on the unsupported speculation that Plaintiff would secure outside employment if he had been promoted to Area Commander, since Area Commanders are not eligible for overtime wages. (Doc 46. at 1.) While the record reflects that Garrett supplemented his income through a second job at Presbyterian Hospital during his employment as Area Commander, Garrett also had a long history of "moonlighting" before his promotion to Area Commander. (Doc. 65 at 2.) It is not disputed that Plaintiff regularly worked overtime, but there is no evidence in the record to establish that Plaintiff would have outside employment if promoted to Area Commander or any evidence that Plaintiff previously sought or had such supplemental employment. It is purely speculative as to whether Plaintiff would have "moonlighting" employment, what that employment would be, and what amount(s) could have been earned therefrom.
There may be circumstances in which it would be appropriate for the Court to consider "moonlighting" income in the determination of back pay, as evidenced by the decision of the United States Court of Appeals for the Fifth Circuit in Bing v. Roadway Express, Inc., 485 F.2d 441, 444 (5th Cir. 1973) (remanding to assess whether Plaintiff, who had a history of "moonlighting", would have "moonlighted" during the relevant layoff period). However, the case sub judice does not present the same factual scenario. Without evidence that Plaintiff would have secured outside employment or had a history of "moonlighting," this Court cannot adopt Plaintiff's first proposed model.
B. Whether Plaintiff's Overtime Wages, During the relevant period, Should be Considered "Interim" Earnings and therefore Deducted from Plaintiff's Back Pay Award?
Alternatively, Plaintiff suggests a second method of calculating Plaintiff's back pay award, if any: the back pay should be calculated as the difference between Garrett's base earnings and Plaintiff's base earnings, and not take into account Plaintiff's overtime pay. (Doc. 47 at 6.) Defendant argues that Plaintiff's overtime earnings are considered "interim" earnings and must be deducted from any back pay award to Plaintiff. (Doc. 66 at 3.)
There is clear precedent for the proposition that overtime compensation should not be deducted from a back pay award where the Plaintiff could have earned the compensation even if he had been promoted. See Nordstrom v. National Labor Relations Board, 984 F.2d 479 (D.C. Cir. 1993); Welbern v. Hunt, 929 F.2d 1341 (8th Cir. 1991); Behlar v. Smith, 719 F.2d 950 (8th Cir. 1983); see also Floyd v. Mellon Bank, N.A., 1991 WL 30755 (E.D. Pa. Mar. 6, 1991) (excluding overtime from ...