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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 ...

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