The opinion of the court was delivered by: (judge Caputo)
Presently before the Court is the Motion to Preclude, or in the Alternative, Limit Back Pay by Defendant United Parcel Service, Inc. ("UPS"). The motion will be granted in part because the jury's back pay award must be reduced by the amount of worker's compensation paid to Plaintiff Edward Supinski. However, the motion will be denied in part because (1) UPS failed to meet its burden of proving Mr. Supinski failed to mitigate his damages; (2) any portion of a worker's compensation payment paid to a plaintiff's attorney cannot be deducted from a back pay award; and (3) any amount paid by a personal insurance company to a plaintiff cannot be deducted from a back pay award. Therefore, Mr. Supinski will be awarded $342,798.40 as back pay.
Also before the Court are UPS's Motion to Strike Brief in Opposition and Mr. Supinski's Motion to Strike UPS's Motion to Strike. Because the new evidence submitted by Mr. Supinski was not considered in determining a back pay award, both motions to strike will be denied as moot.
Plaintiff Edward Supinski brought an action against Defendant United Parcel Service, Inc. ("UPS"), alleging discrimination and retaliation action under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the Pennsylvania Human Relations Act, 43 Pa. Stat. Ann. § 951 et seq. The case went to trial on February 13, 2012. On February 17, 2012, the jury returned with a verdict in favor of Mr. Supinski. In addition to compensatory damages, it awarded Mr. Supinski back pay in the amount of $665,000. The jury's verdict regarding back pay was merely advisory, however, as back pay is an equitable remedy that must be determined by the court. See Spencer v. Wal-Mart Stores, Inc., 469 F.3d 311, 316 (3d Cir. 2006).*fn1
UPS moved to preclude or, alternatively, limit the back pay award on February 21, 2012. Mr. Supinski filed a brief in opposition to UPS's motion, to which it attached a chart created by Mr. Supinski's counsel. UPS filed a motion to strike the chart on March 1, 2012.The motion to preclude or limit back pay has been fully briefed and is ripe for disposition. The motion to strike has not been fully briefed, but is now moot, as will be discussed below.
Back pay is an available remedy in an action under the ADA. See 42 U.S.C. § 12117; Spencer, 469 F.3d at 316. Although back pay is an equitable remedy to be determined by the court, a jury may issue an advisory opinion on back pay damages. See Donlin v. Philips Lighting N. Amer. Corp., 581 F.3d 73, 78 n.1 (3d Cir. 2009); Third Circuit Model Jury Instructions: Civil § 9.4.3 (2011). The purpose of a back pay award is to "make persons whole for injuries suffered through past discrimination." Booker v. Taylor Milk Co., Inc., 64 F.3d 860, 864 (3d Cir. 1995) (internal quotations omitted) (citing Loeffler v. Frank, 486 U.S. 549, 558 (1988)). A court may estimate what a plaintiff's earnings would have been if "an exact dollar calculation is impossible." Durham Life Ins. Co. v. Evans, 166 F.3d 139, 156 (3d Cir. 1999). Any uncertainty must be resolved in favor of the plaintiff. Id.
UPS moves to preclude or reduce the back pay award, arguing that Mr. Supinski failed to mitigate his damages. Although there is generally a presumption in favor of a back pay award, a plaintiff has a duty to mitigate damages. Booker, 64 F.3d at 864 (citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975)). The employer has the burden of proving a failure to mitigate by showing "that 1) substantially equivalent work was available, and 2) the [ADA] claimant did not exercise reasonable diligence to obtain the employment." Le v. Univ. of Pa., 321 F.3d 403, 407 & n.2 (3d Cir. 2003). A plaintiff exercises reasonable diligence "by demonstrating continuing commitment to be a member of the work force and by remaining ready, willing, and available to accept employment." Booker, 64 F.3d at 864. "Although a plaintiff's efforts need not be successful, he must exercise good faith in attempting to secure a position." Id.
A plaintiff's failure to mitigate does not necessarily foreclose a back pay award; a court may instead reduce or decrease the award. Id. at 866.
UPS's motion will be denied because it has not met its burden of proving Mr. Supinski failed to exercise reasonable diligence. Mr. Supinski testified that he had applied to "more [jobs] than I can count," Trial Tr. vol. 2, 33:15-16, February 14, 2012, but that he had not been offered any positions, id. at 69:11-13. UPS argues, however, that Mr. Supinski voluntarily removed himself from the job market by admitting to prospective employers that he was employed at UPS, on worker's compensation, and hoped to return to UPS. See id. at 68:24-69:2. The company cites to Holocheck v. Luzerne County Head Start, Inc., which held that an employer can prove a failure to mitigate where there has been a "willful loss of earnings" by the plaintiff. No. 3:CV-04-2802, 2007 WL 954308, at *15 (M.D. Pa. 2007). But Holocheck is distinguishable because the plaintiff in that case had undertaken no efforts to apply for a new position. Mr. Supinski, on the other hand, cannot be characterized as "voluntarily removing himself" from the job market when he actively sought replacement employment--and I decline to embrace an interpretation of the "willful loss of ...