Jackson v. City of Cookeville

WELLFORD, Senior Circuit Judge,

concurring in part and dissenting in part.

I concur with the majority decision in all respects except that portion of the decision dealing with “reduction to present value” of “front pay” described as “an award of prospective or expected damages to compensate a plaintiff for the loss of future earnings.” I agree that the district court gave “complete and clear” instructions on present value, but I am “left with the definite and firm conviction that a mistake has been made” in the *1362calculation of such an award. United States v. United States Gypsum Co., 333 U.S. 364, 375, 68 S.Ct. 525, 532, 92 L.Ed. 746 (1948).

“Front pay is an ‘equitable remedy,’ and, if determined by the court, is a matter of discretion, and the court’s decision will be overturned on appeal only if it constitutes an abuse of discretion.” Graefenhain v. Pabst Brewing Co., 870 F.2d 1198, 1201 (7th Cir.1989); see also McNeil v. Economics Lab., Inc., 800 F.2d 111, 119 (7th Cir.1986), cert. denied, 481 U.S. 1041, 107 S.Ct. 1983, 95 L.Ed.2d 823 (1987).1 The standard for reviewing a front pay award is “whether any reasonable person could [dis]agree with the district court.” United States v. $103,387.27 in U.S. Currency, 863 F.2d 555, 561 (7th Cir.1988); see also Hawley v. Dresser Industries, 958 F.2d 720 (6th Cir.1992). I am persuaded that on this issue, the district court properly exercised its discretion in adjusting the jury award for future pay to reflect present value and that reasonable minds might reasonably come only to that conclusion under all the circumstances. See Morelock v. NCR Corp., 586 F.2d 1096, 1104 (6th Cir.1978); Hill v. Spiegel, Inc., 708 F.2d 233, 237 (6th Cir.1983). The evidence points so strongly in favor of the defendant on this question that I would affirm the action of the district court in reduction of the verdict award to a reasonable present value.

The only case cited by the majority to justify the front pay without reduction to present value is Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 103 S.Ct. 2541, 76 L.Ed.2d 768 (1983).2 While that case declined to set a fixed rule as to the rate of discount to take into account the reduction to present worth of future earnings in a Longshoremen’s Act case, the Court, in effect, directed that the district court choose by “deliberate choice” some discount rate even after potential inflation and wage increase consideration were taken into account.3 Id. at 553, 103 S.Ct. at 2558. This court, in Shore v. Federal Express Corp., 777 F.2d 1155 (6th Cir.1985), discussed factors to be taken into account in a front pay award, including other available employment opportunities, “work and life expectancy, the discount tables to determine the present value of future damages,” and other “pertinent” considerations. Id. at 1160 (emphasis added).

Jackson had the burden throughout to prove the amount of his damages. There was no proof about his reasonable work life expectancy as a police officer or executive in light of Jackson’s admitted health problems. Jackson’s brief admits that he had to have heart surgery due to his heart condition at the time of his separation in 1990. He was on sick leave for many months before he retired in March of 1991. Plaintiffs Brief at 11. When asked how long he wished to work, Jackson responded: “If my health held out, probably til I’m 65.” (emphasis added). I doubt Jackson established an eleven year work life expectancy in light of his known health problems, and one would expect police duties to be stressful and difficult in nature. I give Jackson the benefit of serious doubt and speculation to approve eleven year’s future benefits. It is certainly equitable and reasonable in this case, however, to require a reduction to present value in view of these circumstances and uncertainties.

Another factor weighs against the approval of the jury award for front pay made in this case. Jackson is required by law to mitigate his damages. He testified that he realized other earnings in 1990 and almost $5,000 in such earnings in 1991. Jackson continued to be employed at the time of trial. This is unquestioned proof that mitigation is applica*1363ble. The plaintiffs own claim of net loss of earnings in 1991, at most, reflected in this case a figure of $42,472.00 less “income/other sources” of $4871 or $37,601.00.

Not only should the back pay award as a matter of law be reduced to $37,601 to reflect the mitigation by reason of other earnings so that the annual loss of future earnings should have been pegged at $37,601. Multiplying this amount by eleven would produce a gross figure of $413,611 subject to discount to present value.

The reduced award of the district court, I believe, took into account these equitable factors and a necessary reduction to present value. I submit, for the reasons stated, this was a reasonable award to the plaintiff and represented no abuse of discretion. Jackson himself established and conceded the mitigation reduction.

I am not suggesting that the jury may not make a reasonable award in a case of this type for front pay, but the nature of the award is equitable and it should, therefore, be subject to the close supervision of the district court and its sound discretion to see that the award is appropriate, reasonable and not excessive. It is not disputed that the jury ignored the district court’s precise and proper instructions to reduce the amount of future earnings to present value, but, rather, simply multiplied Jackson’s gross 1992 prospective salary, including a raise, by eleven “the number of years that Jackson testified he planned to continue to work.”

In looking at the circumstances here, we observe that Jackson had previously been demoted from Chief of Police due to a perceived low morale situation.4 He had served as Chief and Assistant Chief of Police and as a police officer. He served at the will and pleasure of the Cookeville City Manager so he had no expectation of assured indefinite future employment as Assistant Chief of Police. We must also look at practicalities in this case — Cookeville, Tennessee, in 1990 had a population of only 22,700 and the likelihood of continued raises to pay a salary that already amounted to almost $2 per capita would seem speculative at best. City officials had determined that they no longer needed an Assistant Police Chief when they mandatorily retired Jackson (although the jury found that inappropriate age considerations played a part in the latter action). In short, Jackson was a political appointee subject to the vicissitudes of local town politics in order to continue in his position from year to year. It seems unlikely that Jackson, eleven years from now if he were still physically able and was serving as Cookeville’s Assistant Police Chief, would be receiving approximately $65,000 annually.5

Based on Jackson’s status, if he continued police work, as an “at will” employee, his uncertain state of health, his prove ability to earn mitigating income, and doubt and speculation as to the amount of his future salary and the years he might be able to continue to work in a job probably not needed in Cooke-ville, I would affirm the district court’s award to Jackson as equitable, reasonable, and appropriate. I would also affirm the attorney fee award made by the district court.

. We stated in Davis v. Combustion Engineering, Inc., 742 F.2d 916, 923 (6th Cir.1984), that "an award of front pay must be governed by the sound discretion of the trial court.” Davis recognized the equitable necessity of reduction of a front pay award to present value.

. The majority makes reference to a so-called "Alaska rule” (see n. 7), but that rule has never been adopted in Tennessee nor in this circuit, and I would not utilize it to justify a departure from our circuit's discount to present value rule.

. The Court discussed a "real interest rate” factor and by inference suggested a 1% to 3% rate in that case. It should be remembered that when the Court made its decision in Pfeifer, there had been a period of high inflation during the 1970's, particularly the late 1970's and into the early 1980’s. The rate of inflation has substantially dropped since that time as has the rate of average annual increase in compensation.

. Twice Jackson was "demoted” from the position of Chief of Police — one in 1985 and, again, in mid-1989.

. Applying the same salary increase increment from 1990 to 1991 over the next eleven years would produce a salary exceeding $66,000 in 2006.