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Burton v. Zwicker & Assocs., PSC

United States District Court, E.D. Kentucky, Northern Division

October 16, 2013

CLINTON BURTON, PLAINTIFF
v.
ZWICKER AND ASSOCIATES, PSC, DEFENDANT

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For Clinton Burton, Teresa Robinson, John Wehr, Gretta Hoffman, Plaintiffs: Andrew J. Schierberg, Surdyk Dowd & Turner Co., LP - Miamisburg, Miamisburg, OH; Barbara D. Bonar, Law Offices of B. Dahlenburg Bonar, P.S.C., Covington, KY; Theresa Marie Mohan, B. Dahlenburg Bonar, Covington, KY.

For Zwicker and Associates, PSC, also known as Zwicker and Associates PC, Defendant: Jan M. West, Goldberg Simpson, LLC, Louisville, KY; Jennifer Kaelin Luhrs, Jonathan D. Goldberg, Goldberg & Simpson, LLC, Louisville, KY; John S. Gearan, Laura R. Studen, Lawrence P. Murray, Michael V. Samarel, PRO HAC VICE, Burns & Levinson, LLP, Boston, MA.

OPINION

William O. Bertelsman, United States District Judge.

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MEMORANDUM OPINION & ORDER

This matter is before the Court on plaintiff's motion for reinstatement and interim front pay (Doc. #292), defendant's motion for judgment as a matter of law (Doc. #316), defendant's motion for new trial and remittitur (Doc. #317), defendant's motion for relief from judgment pursuant to Fed.R.Civ.P. 60(b)(3) (Doc. #348), and plaintiff's motion to strike defendant's reply brief (Doc. #370).

The Court heard telephonic oral argument on these motions on Thursday, September 26, 2013. Barbara D. Bonar, Theresa M. Mohan, and Randolph Freking represented the plaintiff. Laura R. Studen, Susan E. Stenger, Lawrence P. Murray, and Michael V. Samarel represented the defendant. Official court reporter Joan Averdick recorded the proceedings.

Having reviewed the written filings and heard from the parties, the Court hereby issues the following Memorandum Opinion and Order.

I. FACTUAL AND PROCEDURAL HISTORY

This matter was tried to a jury beginning on April 22, 2013. At the outset of trial, Plaintiff Clinton Burton (" Burton" ) was asserting claims of race discrimination, racially hostile work environment, and retaliation pursuant to the Kentucky Civil Rights Act (" KCRA" ), KRS § 344, et seq., as well as common law claims for termination in violation of public policy, negligent supervision/negligent retention, intentional infliction of emotional distress, and invasion of privacy. See Doc. 1-1.

At the close of all the evidence, Defendant Zwicker & Associates, P.S.C. (" Zwicker" ) made a motion for a directed verdict on all of Burton's claims.[1] See Doc. 287. The Court granted Zwicker's motion as it pertained to Burton's claims for negligent supervision/negligent retention, intentional infliction of emotional distress, and invasion of privacy. See Doc. 290. The Court denied Zwicker's motion as it pertained to Burton's claims of race discrimination, racially hostile work environment, and retaliation pursuant to KRS § 344, as well as Burton's common law claim asserting a public policy tort violation. Id.

Regarding his claim for termination in violation of public policy, Burton asserted tat Zwicker terminated him because Burton refused to perjure himself in a sexual harassment lawsuit filed by one of Burton's co-workers against Zwicker. Ultimately, each of Burton's KCRA claims and his claim for a public policy tort violation were submitted to the jury.

The jury unanimously returned a verdict in favor of Burton on all counts. See Doc. 336 at 88-92. The jury awarded Burton

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$300,000 in back pay for his lost wages. Id. at 90. Additionally, Burton was awarded $50,000 for emotional distress resulting from his wrongful termination and $50,000 in emotional damages resulting from the hostile work environment at Zwicker. Id. Lastly, the jury awarded Burton $600,000 in punitive damages for his termination in violation of public policy. Id. at 90-91. Judgment was entered in Burton's favor in the amount of $1,000,000. See Doc. 287.

After trial, Burton filed a motion for reinstatement and interim front pay. See Doc. 292. At trial, the Court specifically found that there was no evidence to justify an instruction to the jury on the issue of front pay. See Doc. 302 at p. 51. In response, counsel for Burton requested that the Court order reinstatement if the jury found violations of the pertinent sections of the KCRA. Id. at 51-52.

Additionally, Zwicker has filed a motion for judgment as a matter of law, a motion for remittitur and new trial, and a motion for relief from judgment under Rule 60(b)(3). See Docs. 316, 317, 348.

In its motion for judgment as a matter of law, Zwicker asserts that Burton failed to present sufficient evidence on his claims for racial discrimination, racially hostile work environment, and retaliation. See Doc. 346 at pp. 2-23. Further, Zwicker asserts that Burton failed to satisfy his burden of proof as it related to his public policy tort claim. Id. at p. 27. On that point, Zwicker argues that there is no evidence that Burton was requested to commit perjury or that he was terminated for refusing to do so. Id. at pp. 27-33. Lastly, Zwicker asserts that Burton failed to present sufficient evidence to justify the jury's awards for back pay and punitive damages. Id. at pp. 23-27, 33-36.

In its motion for remittitur and new trial, Zwicker again attacks the sufficiency of Burton's evidence as it pertains to Burton's claims for racial discrimination, racially hostile work environment, and retaliation. See Doc. 347 at pp. 19-31. Also, Zwicker once again attacks Burton's public policy tort violation asserting that there is insufficient evidence that Burton was requested to commit perjury or that he was terminated for refusing to do so. Id. at pp. 31-33.

Moreover, Zwicker asserts that it was unfairly prejudiced in several respects such that it should be entitled to a new trial. Id. at pp. 33-40. Further, as it relates to its motion for remittitur, Zwicker argues that each of Burton's damage awards is excessive and/or unsupported by the evidence. Id. at pp. 2-10.

Further, after trial, Zwicker filed a motion for relief from judgment pursuant to Fed.R.Civ.P. 60(b)(3). See Doc. 348. In this motion, Zwicker requests relief from the portion of Burton's judgment that relates to Zwicker's liability for violating public policy and Burton's award of punitive damages for that violation. Id. at p. 1.

More specifically, Zwicker moves this Court to dismiss Burton's public policy tort claim and the punitive damage award because Burton committed a fraud on this Court by falsely testifying that he had been pressured to commit perjury. Id. at p. 8. Zwicker supports this motion with three affidavits from the outside counsel who interviewed Burton in the prior lawsuit and who deny that Burton ever gave unfavorable statements about Zwicker in the interviews. Id. at pp. 4-6.

II. ANALYSIS

A. Burton's Motion for Reinstatement and Interim Front Pay

At trial, the Court specifically found that there was no evidence to justify an instruction on front pay. See Doc. 302 at p. 51. In response, counsel for Burton requested

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that the Court order reinstatement if the jury found violations of the pertinent sections of the KCRA. Id. at 51-52.

" A plaintiff who seeks an award of front pay must provide the district court with the essential data necessary to calculate a reasonably certain front pay award." Arban v. W. Pub. Corp., 345 F.3d 390, 407 (6th Cir. 2003) (quoting Bruso v. United Airlines, Inc., 239 F.3d 848, 862 (7th Cir. 2001)); see also Tyler v. Union Oil Co. of Cal., 304 F.3d 379, 402 (5th Cir. 2002) (affirming district court's denial of front pay where an award would be " purely speculative" ).

" [A]wards of front pay must be guided by consideration of certain factors, including[:] an employee's duty to mitigate, the availability of employment opportunities, the period within which one by reasonable efforts may be re-employed, the employee's work and life expectancy, the discount tables to determine the present value of future damages[,] and other factors that are pertinent on prospective damage awards." Roush v. KFC Nat. Mgmt. Co., 10 F.3d 392, 399 (6th Cir. 1993) (citation and internal quotation omitted).

Here, Burton admits that he offered no evidence as to what he earned at the jobs he took after his termination from Zwicker. Additionally, a review of the record reveals an absence of a number of the above-referenced considerations that guide an award of front pay. Without such evidence, the Court would have been asking the jury to award front pay on a purely speculative basis. Thus, the Court properly denied Burton's request for an instruction on the issuance of front pay.

After trial, Burton filed a motion requesting the Court to order him to be reinstated to Zwicker's employ. See Doc. 292. In response, Zwicker asserts that Burton is foreclosed from requesting reinstatement because at trial he elected to pursue front pay. See Doc. 309 at pp. 1-2.

It is true that " the remedies of reinstatement and front pay are alternative, rather than cumulative." Suggs v. ServiceMaster Educ. Food Mgmt., 72 F.3d 1228, 1234 (6th Cir. 1996). However, Zwicker has cited no case law which establishes that a plaintiff's request for a front pay instruction at trial prohibits the plaintiff from requesting reinstatement if the Court finds that the plaintiff has submitted insufficient evidence to justify a front pay instruction. These remedies are alternative rather than cumulative because their purpose is to make the plaintiff whole rather than to provide a windfall. Id.

In fact, " Courts generally award front pay when reinstatement is inappropriate or infeasible." Id. (citing Schwartz v. Gregori, 45 F.3d 1017, 1022 (6th Cir. 1995)). Thus, if a plaintiff elects to be reinstated and the Court finds it inappropriate, the plaintiff is not then foreclosed from seeking front pay as an alternative remedy.

The same is true for the reverse, especially in this situation where Burton specifically reserved the right to seek reinstatement when advised by the Court that he had not submitted sufficient evidence to justify an instruction on front pay. See Doc. 302 at pp. 51-52; see also Selgas v. Am. Airlines, Inc., 104 F.3d 9, 13 n. 2 (1st Cir. 1997) (finding that submission of a front pay determination to a jury does not constitute an election of front pay over reinstatement as a remedy); Maxfield v. Sinclair Int'l, 766 F.2d 788, 796 (3d Cir. 1984) (stating that front pay was not waived where plaintiff specifically prayed for front pay and did not specifically disavow desire for reinstatement).

Burton asserts that he should be granted reinstatement because the Sixth

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Circuit has held that reinstatement is the presumptively favored equitable remedy. See Gutzwiller v. Fenik, 860 F.2d 1317, 1333 (6th Cir. 1988); Henry v. Lennox Indus., 768 F.2d 746, 752-53 (6th Cir. 1985). " However, while reinstatement should be granted in the ordinary case, [] it is an equitable remedy which is not appropriate in every case, such as where the plaintiff has found other work, where reinstatement would require displacement of a non-culpable employee, or where hostility would result." Roush, 10 F.3d at 398 (citations omitted).

Thus, the Court's denial of a front pay instruction does not require the Court to order that Burton be reinstated to Zwicker's employ. See Arban, 345 F.3d at 406 (" The fact that reinstatement is inappropriate, however, does not mean that an award of front pay is required." )

Here, Burton testified that, " almost all the members of management showed some type of racial animus or harbored ill feelings toward me." See Doc. 337 at p. 163. Thus, it would undoubtedly be difficult for Zwicker to find a position within its firm that would not involve the same hostility and possibility of ongoing conflict. Moreover, Burton testified that he is currently employed as a collections supervisor with a different firm. Id. at p. 127.

Thus, while reinstatement may be the favored equitable remedy, the factors the Court should consider when determining if reinstatement is appropriate militate against granting such relief here. While denying Burton both equitable remedies may seem to create a harsh result, this situation could easily have been remedied had plaintiff submitted evidence at trial upon which a jury could have calculated a reasonably certain front pay award. See Arban, 345 F.3d at 407.

Therefore, Burton's motion for reinstatement and interim front pay is denied.

B. Zwicker's Motion for Judgment as a Matter of Law

" [J]udgment as a matter of law will be proper where there is no legally sufficient evidentiary basis for a reasonable jury to find for the nonmoving party on that issue, or where a claim or defense cannot under the controlling law be maintained or defeated without a favorable finding on that issue." Vance v. Spencer Cnty. Pub. Sch. Dist., 231 F.3d 253, 258 (6th Cir. 2000) ( citing Fed.R.Civ.P. 50(a)). " The court should not weigh the evidence, evaluate the credibility of witnesses, or substitute its judgment for that of the jury; rather, it must view the evidence in the light most favorable to the party against whom the motion is made, and give that party the benefit of all reasonable inferences." Id. (citations omitted).

1. Burton's KCRA Claims

Zwicker challenges the sufficiency of the evidence Burton presented on his claims for racial discrimination, racially hostile work environment, and retaliation. See Doc. 346 at pp. 2-23. Despite the detail and vigor Zwicker presents in its arguments, the arguments presented in these motions merely repeat those made on summary judgment and in its motions for directed verdict.

Upon a thorough review of the record, and drawing all reasonable inferences in favor of Burton, this Court cannot find that there " is no legally sufficient evidentiary basis for a reasonable jury to find" in favor of Burton on his KCRA claims. See Vance, 231 F.3d at 258.

Accordingly, Zwicker's motion for judgment as a matter of law on Burton's KCRA claims is denied.

2. Burton's Public Policy Tort Claim

At trial, the Court submitted the following special verdict to ...


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