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Brown v. Nutrition Management Services Co.


July 22, 2010


The opinion of the court was delivered by: Norma L. Shapiro, J.


Melissa Brown filed this action against Nutrition Management Services Company ("Nutrition Management"), New Courtland Elder Services ("New Courtland"), Scott Murray, and Karen Zywalewski for sex discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) ("Title VII"), sex discrimination under the Pennsylvania Human Relations Act, Pa. Stat. Ann. tit. 43, §§ 951 et seq . ("PHRA"), and unlawful interference with her rights under the Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601 et seq . ("FMLA"). A jury awarded Brown $74,000 in back pay damages from October 19, 2004 (the date of termination) to August 22, 2008 (the date of the verdict) under the FMLA and found no liability under Title VII; the PHRA claim was dismissed before trial.

The court entered judgment in favor of Brown and against Nutrition Management and subsequently entered orders awarding Brown back pay, liquidated damages, and attorney's fees, but denying her motion for front pay. Nutrition Management appealed several of the court's orders; Brown cross-appealed the orders denying her motion for front pay and reducing the amount of attorney's fees requested. The Court of Appeals affirmed the judgment except the denial of Brown's claim for front pay.*fn1 The United States Court of Appeals for the Third Circuit directed this court to consider whether front pay is appropriate and in what amount;*fn2 and to reconsider the amount of its attorney's fee award in light of any front pay awarded.

I. Findings of Fact

Brown was hired as Food Service Director at Plymouth House, a nursing home in Montgomery County, Pennsylvania, in 2002 by its then owner, AFIDA. (Tr. 36, Aug. 14, 2008.) In 2004, New Courtland Elder Services bought Plymouth House, and in late July 2004 contracted all the food service responsibilities to Nutrition Management for a one year period ending July 14, 2005. Nutrition Management contracts to provide food services to hospitals, schools and nursing homes. (Tr. 55, May 5, 2010; Tr. 113, Aug. 15, 2008.) Brown became formally employed as Food Service Director of Plymouth House by Nutrition Management on or about August 2004. (Tr. 57-59, Aug. 14, 2008.) On October 19, 2004, Brown was terminated from her employment as Food Service Director with Nutrition Management. (Tr. 77, Aug. 14, 2008.) Brown was earning $40,000 per year when terminated. (Tr. 59, Aug. 14, 2008.) Nutrition Management hired Debra Smith to succeed her as Food Service Director at Plymouth House.

Ms. Smith was paid $43,500 per year. (Pl.'s Ex. # 50.) The contract of Nutrition Management to manage food services at the Plymouth House ended on July 14, 2005; all Nutrition Management personnel left the premises at that time. (Tr. 56, May 5, 2010.) Generally, when a contract to provide food services ends or is not renewed, Nutrition Management relocates the food service director to another facility managed by it in a position similar to the one the manager had. (Tr. 53-54, Aug. 18, 2008.)

In October, 2005, Brown became employed by Nutrition Management as the manager of a snack bar (the "Terrace Café") at Fox Chase Medical Center. (Tr. 83, Aug. 14, 2008.) She has expressed interest in becoming assistant director of all the food service facilities at Fox Chase Medical Center, but has not been promoted. (Tr. 22, May 5, 2010.) Brown continues to work for Nutrition Management as the Terrace Café manager at Fox Chase Medical Center. (Tr. 19-20, May 5, 2010.) As Terrace Café manager, Brown earned: $5,039.89 (2005);*fn3 $26,641.40 (2006); $28,480.00 (2007); $27,537.75 (2008); and $30,352.27 (2009). (Tr. 87-88, Aug. 14, 2008; Tr. 17-18, May 5, 2010.)

Brown is 39 years old and provides the majority support for her four children; the youngest child is five years old. (Tr. 15-16, May 5, 2010.) Brown intends to work until she reaches retirement age, at 65 or 70. (Tr. 18, May 5, 2010.)

II. Discussion

The FMLA allows "equitable relief as may be appropriate, including employment, reinstatement, and promotion." 29 U.S.C. § 2617(a)(1)(B). Front pay is an alternative to the traditional equitable remedy of reinstatement, and is appropriate where there is irreparable animosity between the parties, or where a comparable position no longer exists. Donlin v. Philips Lighting North America Corp. , 581 F.3d 73, 86 (3d Cir. 2009). The purpose of front pay is to re-establish the victim's rightful place in the job market following unlawful conduct by an employer. Goss v. Exxon Office Systems Co. , 747 F.2d 885, 889 (3d Cir. 1984). The award should account for expected future damages caused by the wrongful conduct, but not "guarantee every claimant . . . an annuity to age 70." Anastasio v. Schering Corp. , 838 F.2d 701, 709 (3d Cir. 1988). Brown concedes that reinstatement to a food service director position with Nutrition Management is not a viable remedy because there is irreparable animosity between Brown and her likely supervisor, Karen Zywalewski, a named defendant in the case. (Pl. Mtn to Am. J. 7.)

Any facts in the Discussion section not found in the Facts section are incorporated by reference therein.

A. Existence of Comparable Position

When a former employee cannot be reinstated, front pay is typically appropriate. However, when the position the victim sought is eliminated and there is no evidence of a comparable position in existence at the time of judgment, front pay should not be awarded. Bartek v. Urban Redevelopment Authority of Pittsburgh , 882 F.2d 739, 746 (3d Cir. 1989). The victim has the initial burden of identifying those positions upon which an award of damages is based. Id. at 746-47.

Nutrition Management contends that the holding in Bartek forecloses Brown's request for front pay because the Plymouth House contract ended on July 14, 2005, and Brown failed to offer evidence of a comparable position in existence at the time of judgment. In Bartek , a jury found plaintiff Bartek was denied promotions in 1984 and 1985 based on his age in violation of the Age Discrimination in Employment Act ("ADEA"). 882 F.2d at 741. The District Court limited the scope of Bartek's damages because the position illegally withheld by the Urban Redevelopment Authority of Pittsburgh ("URA") was eliminated after URA's reorganization on December 31, 1986, and Bartek failed to identify a comparable position that existed after that time. Id. at 746-48 . Back pay damages were awarded up to December 31, 1986; front pay damages were denied. Id. The Third Circuit affirmed the District Court's damage award because "there was no position in existence that Bartek was being unlawfully denied at the time of the judgment." Id. at 747.

Brown has offered evidence that Nutrition Management relocates a food service director to similar a position when a food service contract ends or is not renewed. Karen Zywalewski, District Manager for Nutrition Management, testified that she supervised all food service directors in her district, and in the summer and fall of 2004, she supervised ten facilities. (Tr. 113, Aug. 15, 2008.) Kathleen Hill, president and chief operating officer of Nutrition Management, testified that since 2005, the number of food service managers employed by Nutrition Management has probably decreased, but no evidence was offered that the food service director position has been completely eliminated by the company. (Tr. 59, May 5, 2010.) There is sufficient evidence to support a finding that a comparable position existed after the Plymouth House contract ended and at the time of judgment. Front pay damages are not foreclosed for this reason.

B. Mitigation

Nutrition Management contends that Brown's lack of mitigation efforts from the date she obtained the Terrace Café job and onward are relevant to the court's front pay determination. Nutrition Management argues that Brown did not use reasonable diligence in attempting to secure similar employment to that of a food service director after she accepted employment as snack bar manager. A plaintiff has a duty to mitigate damages prior to trial. Ford Motor Co. v. EEOC , 458 U.S. 219, 232 (1982). The burden falls on the defendant employer to prove a failure to mitigate damages. Anastasio , 838 F.2d at 707. The defendant employer can satisfy the burden by: (1) demonstrating that substantially equivalent work was available, and that the victim did not exercise reasonable diligence in attempting to secure such employment, id. ; or (2) proving that it offered the victim a job that was substantially equivalent to the prior position. Id. at 708.

At the conclusion of trial, the jury awarded Brown $74,000 in back pay. The jury decided that Brown's damages for past and future lost wages should not be reduced for any failure to mitigate.*fn4 The answer to jury interrogatory # 9 makes explicit that Nutrition Management failed to meet its burden regarding any failure to mitigate. The court is bound by this determination in assessing front pay. Donlin , 581 F.3d at 86 ("When a defendant's front pay objection is predicated upon the same objections regarding mitigation of damages which [have been] rejected with regard to back pay, we reject the front pay argument as well"). Front pay damages, if awarded, will not be reduced for failure to mitigate.

Assuming the court could consider Brown's mitigation efforts independently on remand, Nutrition Management would have still not met its burden. While Nutrition Management did place in question the diligence of Brown's employment search,*fn5 it produced little to no evidence*fn6 showing substantially equivalent work was available. Nutrition Management had the burden of showing that Brown failed to exercise reasonable diligence to mitigate her damages, and that there was a reasonable likelihood that Brown might have found comparable work if she had exercised reasonable diligence. Anastasio , 838 F.2d at 708 (emphasis added). Without evidence that comparable work was available, Brown's testimony as to her mitigation efforts stands unrebutted. Id. Front pay is not foreclosed based on a failure to mitigate damages.

C. Front Pay Speculation

Brown seeks twelve years of front pay less amounts received from full-time employment from August 22, 2008, the date of the verdict.*fn7 An award of front pay "necessarily implicates a prediction about the future," but a court should avoid unreasonable speculation regarding future conditions. Donlin , 581 F.3d at 87. The court may exercise its discretion in selecting a cut-off date for an equitable front pay remedy. Id. In selecting a cut-off date, the court may consider a variety of factors, including work and life expectancy. The time frame covered is only what is required to re-establish the wronged employee's place in the job market. Id. The risk of lack of certainty with respect to the projections of lost income must be borne by the wrongdoer, not the victim. Bartek , 882 F.2d at 746.

Brown has offered evidence from which a reasonable front pay calculation could be made. The record establishes: (1) Brown's salary at termination; (2) her income from termination through the 2009 tax year; (3) her current age and retirement expectations; (4) the salary offered by Nutrition Management to the food service director replacing Brown; and (5) the pay increases received by food service directors between 2004 through 2008--i.e., 2 % to 5% annually (Tr. 114-15, Aug. 15, 2008). This evidence, including facts established from the time of the verdict to present day, diminishes some uncertainty in calculating a front pay award.

The record also contains credible evidence regarding Brown's performance as Food Service Director at Plymouth House and her lack of qualification for the position; such factors inform the court on Brown's employability and work expectancy. Dillon v. Coles , 746 F.2d 998, 1006 (3d Cir. 1984) (how long a wronged employee would have continued in employment, her competency, qualifications, and ability to get along with co-workers/superiors are relevant to the trial judge's determination of equitable remedies). The record reveals that Brown attended Community College of Pennsylvania to obtain dietary management certification while a food service worker. Brown completed the certification program, but never passed the certification test. (Tr. 34-35, 99-101, Aug. 14, 2008.) Brown worked as an assistant food director for a year before obtaining the position of Food Service Director at Plymouth House. (Tr. 35-36, Aug. 14, 2008.) Brown's performance was criticized frequently by the director at Plymouth House before Nutrition Management took over the food service operations. (Tr. 66, 110-11, Aug. 14, 2008.) Nutrition Management offered evidence of deficiencies in Brown's performance as Food Service Director. (Tr. 133-38, Aug. 14, 2008; Tr. 203-07, Aug. 15, 2008; Tr. 13-14, Aug. 18, 2008; Tr. 28-29, 53-60, 105-107, Aug. 20, 2008.) The court acknowledges that the jury found Brown was terminated in violation of the FMLA, not because she was unqualified for her position. The jury did not opine on how long Brown would have remained as a food service director had she not been illegally terminated. No evidence has been offered that it would take twelve years from the date of the verdict for Brown to reach and retain her rightful place in the job market. The evidence would suggest, given her present occupation and a two year award of front pay, Brown has reached her rightful place in the job market.

Two years is a reasonable period of time for the award of front pay. The court adopts Brown's methodology for calculating front pay as it is reasonable and supported by the evidence of record.

III. Conclusions of Law

1. This court has jurisdiction over the parties and the subject matter pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1337, 29 U.S.C. § 2617(a), and 42 U.S.C. § 2000e-5(f). Venue is proper.

2. The court has jurisdiction to decide the issue of front pay pursuant to the remand order by the United States Court of Appeals for the Third Circuit. Brown v. Nutrition Management Services Co. , Nos. 08-3840, 09-1779, 2010 WL 939935 (3d Cir. May 17, 2010).

3. Reinstatement is not a viable equitable remedy.

4. Nutrition Management has not met its burden proving that Brown failed to mitigate her damages.

5. An award of two years of front pay is reasonable.

6. Brown is entitled to a front pay award of $38,608.80*fn8 and $224.90 in interest.*fn9

7. Because of the increased recovery by Brown, Brown's attorney is entitled to additional $6,000 in attorney's fees.*fn10

Judgment will be entered accordingly.

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