Opinion
CIVIL ACTION NO. 01-11979 DPW.
March 29, 2007
MEMORANDUM AND ORDER
A very generous and indulgent jury awarded a substantial damage award for Defendant employer's failure to accommodate the disabled Plaintiff in the workplace. In response to Defendant's motion for judgment as a matter of law under Fed.R.Civ.P. 50, I decline to enter judgment for the Defendant because I find that while the evidence is thin on certain essential points, given the deference owed jury fact finding, the judgment is supportable against Defendant's objections. In response to Defendant's motion for a new trial under Fed.R.Civ.P. 59, having found that judgment is properly entered for Plaintiff, I conclude that certain discrete elements of the damage award are unsupportable and on that basis order a new trial in the absence of a relatively modest remittitur. I explain my conclusions in some detail to make it possible for the judgment in this case to be reformulated on appeal, if necessary, without further factfinding. Recognizing the close and contestable character of the issues, I will deny Plaintiff's request for attorney's fees, without prejudice, until final resolution of the case has been reached through settlement or conclusion of the pursuit of appellate remedies.
I. BACKGROUND
In 2001, Plaintiff Kevin W. Tobin sued his former employer, Defendant Liberty Mutual Insurance Co. ("Liberty Mutual"), for age discrimination, disability discrimination, retaliation, breach of the covenant of good faith and fair dealing, wrongful termination, and failure to accommodate under Massachusetts and federal law. When Liberty Mutual moved for summary judgment on all counts, Tobin effectively abandoned his age discrimination and wrongful termination claims. I granted summary judgment for Defendant on the remaining claims. The Court of Appeals affirmed except for the failure to accommodate claim, as to which it remanded for further proceedings. See Tobin v. Liberty Mut. Ins. Co., 433 F.3d 100 (1st Cir. 2005).
After an eleven-day trial, the jury found that Liberty Mutual did not reasonably accommodate Tobin's disability because it failed to assign Tobin additional dedicated support staff and failed to assign him to any Mass Marketing accounts. The jury in response to a series of special questions awarded Tobin $1,355,979 in compensatory damages — $439,315 for unpaid salary, $264,951 for additional pension, $151,713 for additional thrift investment contributions, and $500,000 for emotional distress.
Adding pre-judgment interest of $641,270.04 makes the total award $1,997,249.04.
Liberty Mutual timely moved to set aside the jury verdict for Tobin, and enter judgment in accordance with Liberty Mutual's motion for judgment as a matter of law filed at the conclusion of Plaintiff's case in chief and renewed at the close of the evidence. Liberty Mutual moved in the alternative for a new trial with respect to all issues.
II. STANDARD OF REVIEW
A jury verdict should be upheld "unless the evidence, together with all reasonable inferences in favor of the verdict, could lead a reasonable person to only one conclusion, namely, that the moving party was entitled to judgment." PH Group Ltd. v. Birch, 985 F.2d 649, 653 (1st Cir. 1993) (internal citation omitted). In considering a motion for a judgment notwithstanding the verdict pursuant to Fed.R.Civ.P. 50(b), my review of the record must be "'weighted toward preservation of the jury verdict' because a verdict should be set aside only if the jury failed to reach the only result permitted by the evidence." Quiles-Quiles v. Henderson, 439 F.3d 1, 4 (1st Cir. 2006) ( quoting Crowley v. L.L. Bean, Inc., 303 F.3d 387, 393 (1st Cir. 2002)). This means I must "review the evidence and draw inferences from it in the light most favorable to the verdict, making no determinations of [my] own as to the credibility of witnesses or the weight of the evidence." Valentín-Almeyda v. Municipality Of Aguadilla, 447 F.3d 85, 95 (1st Cir. 2006). Nevertheless, "[a]lthough the standard for setting aside a jury verdict is plainly 'stringent,' [the plaintiff] — who bears the ultimate burden of proof — must have adduced more than a 'mere scintilla of evidence' supporting the elements of his state-law claim, and cannot prevail where the verdict necessarily rests upon evidence which is overly speculative or conjectural." Webber v. Int'l Paper Co., 417 F.3d 229, 233 (1st Cir. 2005) (internal citations omitted), cert. denied, 126 S. Ct. 1436 (2006).
In reviewing a motion for a new trial pursuant to Fed.R.Civ. 59, "[a] verdict may be set aside and new trial ordered [only] when the verdict is against the clear weight of the evidence, or is based upon evidence which is false, or will result in a clear miscarriage of justice." Colón-Millín v. Sears Roebuck De Puerto Rico, Inc., 455 F.3d 30, 35 (1st Cir. 2006) (quoting Ahern v. Scholz, 85 F.3d 774, 780 (1st Cir. 1996)).
III. DISCUSSION
Liberty Mutual has raised numerous arguments in support of its contention that it is entitled to judgment as a matter of law, a new trial, and/or remittitur. I address each in turn.
A. Failure of Proof as to Substantive Elements
1. Disabled/Handicapped
Liberty Mutual contends that Tobin failed to prove that he was disabled or handicapped within the meaning of the Americans with Disabilities Act ("ADA") or Mass. Gen. Laws c. 151B because he failed to demonstrate that he was substantially limited in the major life activity of "working." In addition to Tobin's alleged lack of proof on this issue, Liberty Mutual also points to Tobin's subsequent employment at the Walter May Insurance Agency for over a year and Tobin's admissions and the assertions of his counsel at trial that he was able to do his job and did do his job as evidence that Tobin was not in fact substantially limited in the major life activity of "working."
The jury specifically found that Tobin established by a fair preponderance of the evidence that, when he was terminated from Liberty Mutual on January 10, 2001, he had a disability which substantially impaired the major life activity of work in that he was significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. I will not disturb this finding. The jury heard sufficient evidence, including the testimony of Tobin and Dr. Kantar, from which to conclude that Tobin suffered from a long term and permanent mental impairment, that they could reasonably infer substantially limited his ability to perform a broad class of jobs.
2. Qualified Individual with a Disability
Liberty Mutual contends that there was insufficient evidence for a reasonable jury to find that Tobin was a "qualified individual with a disability" or that the proposed accommodations would have enabled him to perform the essential functions of his job.
The jury specifically found that Tobin had "established by a fair preponderance of the evidence that he would have been able to perform the essential functions of the job of sales representative with the accommodations," which would not have "changed the essential functions of the job of sales representative at Liberty Mutual." I will not disturb this finding. On the evidence adduced at trial, a jury could reasonably have concluded that providing Tobin with a Mass Marketing account would have helped him prospect for new clients and meet Liberty Mutual's sales quotas. See Tobin, 433 F.3d at 110-111 (Howard, J., concurring in judgment). Similarly, a jury could reasonably have concluded that providing him with additional dedicated support staff, instead of just providing him with better and more complete access to the pool of service representatives, would have helped his performance by allowing him to focus on more new business, rather than spending time servicing clients.
Liberty Mutual argues that Tobin presented insufficient evidence to explain adequately the incongruity between his present contention that he was a qualified individual and his claim of total disability in 1998 and 2004 applications for Social Security Disability benefits. For support, Liberty Mutual looks to Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999) and Sullivan v. Raytheon Co., 262 F.3d 41 (1st Cir. 2001), cert. denied, 534 U.S. 1118 (2002), which stand for the proposition that an individual claiming total disability for Social Security Disability purposes while also claiming relief under the ADA or Mass. Gen. Laws c. 151B must proffer an explanation for the apparent contradiction. The Supreme Court, nevertheless, specifically recognized that "an ADA suit claiming that the plaintiff can perform her job with reasonable accommodation may well prove consistent with an SSDI claim that the plaintiff could not perform her own job (or other jobs) without it," and that "if an individual has merely applied for, but has not been awarded, SSDI benefits, any inconsistency in the theory of the claims is of the sort normally tolerated by our legal system." Cleveland, 526 U.S. at 803, 805 (1999).
In this case, I find that Tobin proffered a sufficient explanation for the 1998 application (his wife persuaded him to file the form and filled out the form herself) and for the 2004 application (the 2004 total disability resulted from the termination of his employment) such that a reasonable jury could conclude "that, assuming the truth of, or the plaintiff's good-faith belief in, the earlier statement, the plaintiff could nonetheless 'perform the essential functions' of h[is] job, with or without 'reasonable accommodation.'" Id. at 807.
B. Failure to Establish a Request for Accommodation
Liberty Mutual argues that judgment should be entered for the Defendant because Tobin failed to demonstrate at trial that he specifically requested the proposed accommodations to compensate for his disability. Tobin responds that to the degree this is an issue of fact, Liberty Mutual should have requested it be put to the jury. Since the Defendant did not do so, but simply asked that I instruct the jury — as part of the determination of whether Tobin would have been qualified for the job if he had received a reasonable accommodation — that Tobin needed to have identified and requested the proposed accommodations, Tobin argues that Liberty Mutual has waived this argument.
Throughout this litigation, Liberty Mutual had not disputed the fact that Tobin requested that he be assigned additional dedicated support staff and that he be assigned to Mass Marketing accounts. Furthermore, it has been assumed that Tobin requested these accommodations to overcome his disability-related problem of being insufficiently organized to identify and pursue new clients. There is also evidence from which the jury could reasonably infer that Tobin's managers were aware of the nature of his disability. Nonetheless, Liberty Mutual now argues that Tobin failed to notify Liberty Mutual that he was requesting the particular accommodations at issue to compensate for his disability.
Liberty Mutual did raise this issue in its motion for judgment as a matter of law at the close of the Plaintiff's case.
A "request for accommodation must be sufficiently direct and specific, giving notice that [the employee] needs a special accommodation" for his or her disability. Calero-Cerezo v. Dep't of Justice, 355 F.3d 6, 23 (1st Cir. 2004) (internal citations omitted); Ocean Spray Cranberries, Inc. v. Mass. Comm'n Against Discrimination, 441 Mass. 632, 649 n. 21 (2004) ("[F]or an employee's actions to constitute a request for accommodation, they must make the employer aware that the employee is entitled to and needs accommodation. Specifically, the request must let the employer know that the employee is a qualified handicapped person, and that the employee is currently unable either to perform the essential functions of his job or to enjoy equal terms, conditions, and benefits of employment."). To the degree there was any dispute over the sufficiency or particularity of Tobin's requests for accommodation, Defendant should have insisted the question of fact be put to the jury and/or objected to the special verdict form as presented to the jury.
Fed.R.Civ.P. 49(a) provides that if in submitting a special verdict form to the jury,
the court omits any issue of fact raised by the pleadings or by the evidence, each party waives the right to a trial by jury of the issue so omitted unless before the jury retires the party demands its submission to the jury. As to an issue omitted without such demand the court may make a finding; or, if it fails to do so, it shall be deemed to have made a finding in accord with the judgment on the special verdict.
In this case, I find the evidence was sufficiently settled such that all parties properly assumed Liberty Mutual was aware that Tobin's repeated requests to be assigned additional dedicated support staff and Mass Marketing accounts were attempts to seek accommodations for his disability-related problem of being insufficiently organized to identify and pursue new clients. Consequently, I deny the motion for judgment as a matter of law on this ground.
C. Reasonableness of Accommodations
Liberty Mutual contends that no reasonable jury could conclude that the two proposed accommodations were reasonable or that providing the two proposed accommodations would not have altered the essential functions of his job. Implicit in the latter determination is a negative answer to the question whether the proposed accommodations were related to his limitations because only proposed accommodations addressing the employee's limitations would be reasonable. Consequently, Liberty Mutual continues to maintain that the proposed accommodations were not reasonable and not linked to Tobin's disability, and that providing Tobin with a Mass Marketing account would have altered the essential functions of his job, namely prospecting for new business.
The jury specifically found that Tobin had established by a fair preponderance of the evidence that providing him with Mass Marketing accounts or additional service support would not change the essential functions of the job of sales representative at Liberty Mutual and that either or both of the proposed accommodations would have been reasonable. I will not disturb this finding. There was certainly evidence from which a jury could reasonably infer that providing Tobin with his requested accommodations would have helped his performance as a sales representative. And there was no adequate evidence that providing Tobin with either of his proposed accommodations, although perhaps not consistent with customary practice, would have placed an unreasonable burden on Liberty Mutual.
D. Statute of Limitations
Tobin filed his administrative claims with the Massachusetts Commission Against Discrimination ("MCAD") and the Equal Employment Opportunity Commission ("EEOC") on July 2, 2001. Liberty Mutual argues that judgment for the Defendant notwithstanding the verdict is appropriate because Tobin failed to provide sufficient evidence that Liberty Mutual committed an act of discrimination against Tobin after January 2, 2001 for purposes of Mass. Gen. Laws c. 151B's limitations period or after September 4, 2000 for purposes of the ADA's limitations period.
In 2002, the Massachusetts Legislature amended c. 151B § 5, extending the limitations period from six months to 300 days. However, Tobin concedes that the earlier version of the statute applies to the case at bar. See Ingram v. Brink's, Inc., 414 F.3d 222, 230 n. 8 (1st Cir. 2005).
Tobin opposes judgment for the Defendant on this ground arguing that the issue of whether his claim was continuing and timely should have been presented to the jury if the Defendant wanted to put the issue in contention. Unlike Defendant's failure to request accommodation argument, I will not simply resolve the statute of limitations issue on the grounds that Liberty Mutual failed to insist on a more specific jury question. See Fed.R.Civ.P. 49(a). Liberty Mutual raised the statute of limitations issue in its Pre-Trial Memorandum at pages 9 and 10, in its Motion for Judgment as a Matter of Law at the close of the Plaintiff's case at pages 14 and 15, and again at the May 5, 2006 hearing regarding the verdict slip and jury instructions. In fact, Tobin himself objected to Defendant's proposed modification to Special Verdict Question 4 to reflect the relevant statute of limitations dates.
For Chapter 151B, § 5 purposes, the Supreme Judicial Court's position is that "each request and denial constitutes a new violation" or act of discrimination and "triggers a new limitations period." Ocean Spray Cranberries, 441 Mass. at 643 n. 16. Where an employer simply takes no action at all, as opposed to an explicit refusal to accommodate or to engage at all in the interactive process, in response to an employee's request for accommodation, the limitations period "begins to run at the point thereafter when the employee knew or reasonably should have been aware that the employer was unlikely to afford him a reasonable accommodation." Id. at 645. An employer may only be liable for a request and effective denial of accommodation that occurred before the six-month limitations period if the "continuing violations" exception applies. For this exception to apply in the absence of systematic policy or practice of denying employees accommodation,
a complainant must ordinarily prove that '(1) at least one discriminatory act occurred within the six month limitations period; (2) the alleged timely discriminatory acts have a substantial relationship to the alleged untimely discriminatory acts . . . [and] (3) earlier violations outside the six-month limitations period did not trigger [the plaintiff's] awareness and duty to assert his rights, i.e., that [the plaintiff] could not have formed a reasonable belief at the time the employment actions occurred that they were discriminatory.'Id. at 642-43 (citing Desrosier v. Great Atl. Pac. Tea Co., 885 F.Supp. 308, 312 (D. Mass. 1995)).
Given this standard, to uphold the verdict under c. 151B Plaintiff must point to evidence supporting a finding that Tobin requested an accommodation from Liberty Mutual after January 2, 2001. The request must have been presented in a manner that "let the employer know that the employee is a qualified handicapped person, and that the employee is currently unable either to perform the essential functions of his job or to enjoy equal terms, conditions, and benefits of employment." Id. at 649 n. 21. Prior ignored requests for accommodations are only "relevant as background evidence to determine whether subsequent actions by the employee should be understood as requests for accommodation, and whether the employer's response to a subsequent request meets the employer's obligation to participate in the interactive process," id. at 647 (internal quotation omitted), unless there is evidence supporting the continuing violation theory.
Counsel for Tobin represents that "the testimony and notes of Kevin Tobin and Nina Schwitters indicate that Tobin was requesting both more assistance in the form of sales assistance and mass marketing as of the day he was fired." Defendant disputes this representation.
Tobin argues that the termination of his employment in January 2001 was an adverse job action which clearly resulted from Liberty Mutual's failure to provide reasonable accommodations as required by law. However, the termination of Tobin was not itself the relevant discriminatory act. It is the failure to accommodate, not the resulting termination which in the law of this case constitutes the act of discrimination. The termination which follows it cannot pull a time-barred discriminatory act into the limitations period. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002); Delaware State College v. Ricks, 449 U.S. 250, 257 (1980).
For 42 U.S.C. § 2000e-5(e)(1) purposes, the Supreme Court's position is that "[e]ach discrete discriminatory act starts a new clock for filing charges . . . within the . . . time period after the discrete discriminatory act occurred." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). Unlike Massachusetts law, however, "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. Thus, the "continuing violation" doctrine cannot revive an otherwise untimely claim where discrete acts of discrimination, "such as termination, failure to promote, denial of transfer, or refusal to hire," id. at 114, are at issue. "The existence of past acts and the employee's prior knowledge of their occurrence, however, does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed." Id. at 113.
An employer's rejection of an employee's proposed accommodation is a discrete act. Elmenayer v. ABF Freight System, Inc., 318 F.3d 130, 134-35 (2nd Cir. 2003). As the Second Circuit explained, "[t]he rejection of a proposed accommodation is a single completed action when taken, quite unlike the 'series of separate acts' that constitute a hostile work environment and 'collectively constitute' an unlawful employment practice. Although the effect of the employer's rejection continues to be felt by the employee for as long as he remains employed, that continued effect is similar to the continued effect of being denied a promotion or denied a transfer, denials that Morgan offered as examples of a discrete act." Id. at 135 (internal citations omitted).
Given this standard, to uphold the verdict under the ADA, evidence must have been adduced supporting a finding that Tobin requested an accommodation from Liberty Mutual after September 2, 2000. The "request for accommodation must [have been] sufficiently direct and specific, giving notice that [the employee] needs a special accommodation" for his or her disability. Calero-Cerezo, 355 F.3d at 23 (internal citations omitted).
The evidence of Tobin's requests for accommodations between September 2, 2000 and January 2, 2001 and between January 2, 2001 and January 10, 2001 was more generalized than specific but it built upon earlier specific evidence. Tobin testified that "I continually made the same two requests" for accommodations — additional service support and Mass Marketing — during his weekly meetings with his supervisor Nina Schwitters from February 1999 until his discharge in January 2001. While thin, this evidence, when coupled with evidence of meetings between Schwitters and Tobin, is sufficient to support a reasonable inference that Tobin's requests for accommodations were made within the statute of limitations period for Chapter 151B and consequently the ADA as well.
The dates have importance in the calculation of damages. Under the ADA compensatory damages for future pecuniary losses and emotional distress damages are limited to $300,000, 42 U.S.C. § 1981a(b)(3)(D), while Chapter 151B contains no such limitations. Thus, if the Plaintiff satisfied the ADA statute of limitations but not the statute of limitations for Chapter 151B, the damage award would be required to be reduced substantially.
E. New Trial
Liberty Mutual argues that it is entitled to a new trial because (1) the substantial weight of the evidence conflicts with the jury's verdict, (2) Plaintiff's counsel raised a wealth of irrelevant material, and (3) Plaintiff's counsel made an improper emotional appeal to the jury.
As is apparent from my discussion above focusing on the motion for judgment notwithstanding the verdict, I cannot say that the verdict is against the clear weight of the evidence. Nor can I say that it "will result in a clear miscarriage of justice." Colón-Millín, 455 F.3d at 35 (internal citations omitted). The jury was properly provided with sufficient background material so that it could understand the context of the failure to accommodate claim. Given my frequent limiting instructions, I do not find that any of counsel's meandering from the central issues caused a miscarriage of justice.
As to the emotional appeal argument, it is true that "[i]ntroduction of purely emotional elements into the jury's deliberations is clearly prohibited conduct." Smith v. Kmart Corp., 177 F.3d 19, 26 (1st Cir. 1999) (quoting Doty v. Sewall, 908 F.2d 1053, 1059 (1st Cir. 1990) (citing Polansky v. CNA Ins. Co., 852 F.2d 626, 630 (1st Cir. 1988))). While not specifically denying that counsel improperly made an emotional plea to the jury, Tobin opposes a new trial on this ground because Defendant failed to object to the closing. "The overwhelming weight of the authority supports the rule that, when no timely objection is made, claims of improper closing argument are forfeited, not waived, and thus amenable to review for plain error." Kmart, 177 F.3d at 25. "Under plain error review, [I am to] consider a forfeited objection only if: (1) an error was committed; (2) the error was 'plain' (i.e. obvious and clear under current law); (3) the error was prejudicial (i.e. affected substantial rights); and (4) review is needed to prevent a miscarriage of justice." Id. at 26. "To merit reversal, the error must have 'resulted in a miscarriage of justice or seriously affected the fairness, integrity or public reputation of the judicial proceedings.'" Id. (quoting Coastal Fuels of Puerto Rico, Inc. v. Caribbean Petroleum Corp., 79 F.3d 182, 189 (1st Cir. 1996), cert. denied, 519 U.S. 927 (1996)). "Plain error is a 'rare species in civil litigation,' encompassing only those errors that reach the 'pinnacle of fault' envisioned by the standard set forth above." Id. (citing Cambridge Plating Co., Inc. v. Napco, Inc., 85 F.3d 752, 767 (1st Cir. 1996)).
Counsel for Tobin did by words and demeanor make an improper appeal to the jury's emotions during his closing argument. However, given the exceedingly demanding standard for ordering a new trial and the relatively low level of impropriety, I will not grant a new trial on this ground.
F. Damages
Liberty Mutual argues that the jury's award of damages is disproportionate to the injury and represents a miscarriage of justice that warrants a new trial or at least a reduction in the amount of damages awarded. I reject this argument as a general proposition, but consider each of Liberty Mutual's specific arguments in turn.
1. No Causation Evidence
Liberty Mutual argues that Tobin presented insufficient evidence establishing that Liberty Mutual's failure to accommodate — and not his existing bipolar condition or the other problems in his life — was the cause of his emotional distress. I disagree. Liberty Mutual presented this argument and supporting evidence as to the other distresses in Tobin's life, but the jury chose to award Tobin damages for emotional distress resulting from the discrimination. "It is well settled that in action for damages, the tortfeasor takes his victim as he finds him." Figueroa-Torres v. Toledo-Dávila, 232 F.3d 270, 275 (1st Cir. 2000). Although the so-called "egg-shell skull plaintiff" rule must not be substituted for causation, id. at 274, a defendant can be held liable through an award of emotional distress damages for aggravating a pre-existing emotional condition.
2. Emotional Distress Damages
Liberty Mutual contends that the jury's award of $500,000 for emotional distress is excessive and disproportionate. Tobin responds that the jury had a strong foundation to make the award it made to the Plaintiff because both Dr. Kantar and Tobin provided compelling testimony regarding the effect of the Defendant's failure to accommodate Tobin.
The First Circuit maintains that "[a]lthough determining whether damages for emotional distress are excessive is difficult, such damages are not immune from review." Koster v. Trans World Airlines, Inc., 181 F.3d 24, 34 (1st Cir. 1999), cert. denied, 528 U.S. 1021 (1999). While I find that the award was certainly generous and at the outer reaches of a reasonable jury verdict, I decline to grant remittitur as to these damages. Although the award is in the range which might be deemed excessive by the First Circuit and the Supreme Judicial Court, Tobin's situation is certainly more extreme than the plaintiffs' situations in Koster and Labonte v. Hutchins Wheeler, 424 Mass. 813, 824-25 (1997). Tobin failed to return to productive work successfully after being terminated from Liberty Mutual and now claims to be totally disabled.
3. Lost Pay Award
The jury awarded Tobin $143,532 for lost salary between January 10, 2001 and April 1, 2003, $204,560 for lost salary between April 1, 2003 and May 8, 2006, and $91,223 for lost salary between May 8, 2006 and September 26, 2007 when he was set to retire. Liberty Mutual argues that Tobin's damages for lost pay should have been cut off from April 1, 2003, the date that he began collecting Social Security benefits based upon his claim of total disability, or at least reduced by the Social Security Disability benefits award of $20,000 per year as of April 1, 2003. Tobin opposes remittitur on this basis, arguing that given the jury instructions, the jury must have concluded that the Plaintiff's disability was caused by the actions of the Defendant. Consequently, the Defendant should not reap any windfall for disabling the Plaintiff.
Generally, a plaintiff is entitled to back pay, which "compensates plaintiffs for lost wages and benefits between the time of the discharge and the trial court judgment," Johnson v. Spencer Press of Maine, Inc., 364 F.3d 368, 379 (1st Cir. 2004), in the amount of lost wages until trial as a method of compensating the plaintiff. However, plaintiffs have a duty to mitigate damages to the extent possible, including seeking subsequent employment and disability benefits. Blockel v. J.C. Penney Co., Inc., 337 F.3d 17, 27 (1st Cir. 2003); Johnson, 364 F.3d at 379 ("During the back pay period, individuals have an obligation to exercise 'reasonable diligence' in finding alternative suitable employment."). The case law cited by the parties presents several general rules: "back pay is not permanently terminated when an employee is fired for misconduct or voluntarily quits interim employment," and "an employee who cannot mitigate damages because of the unlawful actions of the employer can still receive back pay." Johnson, 364 F.3d at 382, 384. See also Blockel, 337 F.3d at 27 ("When an employee's total disability is caused by an employer's failure to reasonably accommodate h[im], the loss of employment can be an element of special damages that the jury may consider in fashioning a remedy for the failure to accommodate.").
In contrast to awards of back pay, awards of front pay — "money awarded for lost compensation during the period between judgment and reinstatement or in lieu of reinstatement," Johnson, 364 F.3d at 379 (quoting Pollard v. E.I. du Pont de Nemours Co., 532 U.S. 843, 846 (2001)) — "are generally entrusted to the district judge's discretion and are available in a more limited set of circumstances than back pay. Front pay should not be awarded unless reinstatement is impracticable or impossible." Id. at 380 (internal footnote and citations omitted).
In this case, I instructed the jury that Tobin was entitled to the pay he would have received but for Liberty Mutual's mistreatment. Implicit in the jury's award of lost pay for January 10, 2001 through September 26, 2007 is a finding that Liberty Mutual's mistreatment of Tobin caused his total disability such that he has not failed to mitigate damages by not securing other gainful employment. Based on Johnson, however, an argument can be made that there is insufficient evidence supporting Tobin's theory that Liberty Mutual's mistreatment caused his total disability sufficient to grant him back pay or front pay after April 1, 2003. 364 F.3d at 383-84. As in Johnson, one could argue that the evidence at trial "does no more than create an issue regarding whether the [failure to accommodate] at [Liberty Mutual] was one among numerous other independent and significant contributing factors to [Tobin]'s psychological disability." Id. at 384. Nevertheless, I will not disturb the jury's finding on this issue.
However, as Blockel makes clear, as of April 1, 2003, Tobin was only "entitled to recover what [he] would have been paid had [he] not become disabled, reduced by the amount of any disability benefits." 337 F.3d at 27. Since the jury plainly did not reduce the awards for lost salary between April 1, 2003 and May 8, 2006, and May 8, 2006 and September 26, 2007, by the amount of Tobin's disability benefits, remittitur of approximately $90,000 would be appropriate.
4. Pension Benefits
The jury awarded Tobin $264,951 for additional pension benefits that would have been available to Tobin if he had continued to work at Liberty Mutual until the age of 62. I took judicial notice of the life expectancy charts provided by the Plaintiff and instructed the jury that a white 60 year old male is expected to live for another 20.3 years.
I credit Defendant's calculations that the jury must have presumed that Tobin would have lived for another 27.8 years following his 62nd birthday, that is until the age of 90, or 7.5 years longer than predicted by the life expectancy charts. However, I will not grant remittitur as to the additional pension award because it was not overly speculative for the jury to assume that Tobin would live until he is 90. Life expectancy is inherently speculative, and jurors are not bound by actuarial tables, McKeown v. Woods Hole, 9 F.Supp.2d 32, 48 (D. Mass. 1998), which do not provide evidence of how long any particular individual will live. See also Monessen Southwestern R.R. v. Morgan, 486 U.S. 330, 341 n. 10 (1988) (citing Vicksburg Meridian R. Co. v. Putnam, 118 U.S. 545, 557 (1886) ("This Court held that such an instruction [to calculate damages based on a standard annuity table] 'tended to mislead the jury . . . by giving them to understand that the tables were not merely competent evidence of the average duration of human life . . . but furnished absolute rules which the law required them to apply in estimating the probable duration of the plaintiff's life.'")). Here, jurors had the opportunity to observe Tobin's physical condition, and heard him testify that he exercised regularly. Viewing this evidence in the light most favorable to Tobin, I find that a reasonable juror could have concluded that Tobin is likely to live longer than predicted by standard life expectancy charts, and will not grant remittitur with respect to Tobin's pension benefits.
5. Present Value
Liberty Mutual's final argument is that the awards for future damages must all be reduced to present value. Tobin opposes this argument because Liberty Mutual failed to request additional instructions on the issue and has, therefore, waived it. I did, however, instruct the jury that any award of damages should take into account the fact that money given today based on future losses is worth more than if the money were obtained in the future.
I decline to grant remittitur on this basis. As the Supreme Court discussed at length in Jones Laughlin Steel v. Pfeifer, 462 U.S. 523, 532-553 (1983), calculating the present value of a future stream of income is difficult, particularly in the presence of inflation. In Jones, the Court declined to adopt a uniform discount rate approach for all federal cases. Id. at 546. Instead, it suggested three alternatives: the "real interest rate" approach, the market rate option, and the "total offset" method. Id. at 541-44. Here, a fair reading of the jury's verdict is that it followed a total offset method, and assumed that any interest rate Tobin could earn in the market would be offset by future price inflation. Under Jones, this approach is acceptable, and subsequent case law emphasizes that present value discounting is an "essentially factual question" to be determined by the finder of fact, not the judge. Monessen Southwestern R.R. v. Morgan, 486 U.S. 330, 342 (1988). Liberty Mutual did not object to my jury instructions or request instructions on a specific formula for computing present value, nor did it provide probative evidence of an appropriate discount rate. McDonald v. Fed. Labs., Inc., 724 F.2d 243, 247 (1st Cir. 1984). Consequently, I will allow the forward-looking damage calculations to stand.
IV. CONCLUSION
For the reasons set forth more fully above, I deny the Defendant's motion under Fed.R.Civ.P. 50(b) for judgment notwithstanding the verdict and deny the Defendant's motion for a new trial, on condition that the Plaintiff remit $90,000.00 of the damage award reflecting Tobin's receipt of disability benefits; if the Plaintiff does not accept this remittitur by April 17, 2007, the judgment will be vacated and a new trial ordered. Given the close and contestable character of the issues, I deny Plaintiff's request for attorney's fees, without prejudice, pending final resolution of the case.