MEMORANDUM AND ORDER
In this action, plaintiff Bijan Daneshvar claims that defendant Graphic Technology, Inc. failed to promote him on the basis of his race and national origin and terminated his employment in retaliation for engaging in protected activity, all in violation of Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, and the Kansas Act Against Discrimination (KAAD), K.S.A. § 44-1001 et seq. 1 Plaintiff also claims that defendant violated the notification provisions of the Consolidated Omnibus Budget Reconciliation Act (COBRA), 29 U.S.C. § 1161 et seq. Plaintiff seeks backpay, compensatory and punitive damages and reinstatement.
A trial to the court was held in this matter from November 17, 1998 through November 19, 1998. The court has thoroughly considered the evidence and arguments presented at trial. It has relied to a considerable degree on its opportunity to form conclusions about the credibility of the witnesses from close observation of their demeanor while testifying at trial. The court is now prepared to issue its findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a). For the reasons set forth fully below, judgment is entered in favor of defendant on plaintiffs discriminatory failure-to-promote claims. With respect to plaintiffs retaliatory discharge claim and COBRA claim, however, the court finds in favor of plaintiff and awards plaintiff the relief described below.
1. Findings of Fact
Plaintiff Bijan Daneshvar is a United States citizen of Iranian descent and national origin. In 1988, plaintiff began his employment with defendant Graphic Technology, Inc. as an assistant press operator in the rotary department. .In its rotary department, defendant produces bar code labels for shipping companies such as Federal Express and United Parcel Service and prescription labels for pharmacies. Plaintiff began his employment on the night shift, but moved to the day shift as soon as he became eligible (after one year of employment). He remained in the assistant press operator position for the duration of his employment with defendant.
Maintenance Mechanic Position
On July 11, 1995, defendant posted an opening for a maintenance mechanic position. A maintenance mechanic is primarily responsible for repairing and maintaining production equipment. Plaintiff submitted an application for the position to defendant’s human resources department and was interviewed by a woman in the human resources department. 2 According to Greg Lueck, defendant’s maintenance supervisor at the time the mechanic position was posted, all interviews for the position were conducted by the human resources department. Plaintiff was informed by the woman in human resources that his inability to weld precluded him from further consideration for the position. Plaintiff concedes that he cannot weld, although he expressed a willingness to learn the skill *1229 during a 90-day training period described in the job posting. Pat Flaherty, defendant’s Operations Manager for the Rotary Department at the time, later informed plaintiff that he did not receive the position because plaintiff could not weld and because defendant needed someone with continuous experience in maintenance.
According to Mr. Lueck, welding is a required skill for the maintenance mechanic position. Moreover, Mr. Lueck testified that if he had to choose between a candidate with welding experience and a candidate without welding experience, he would select the candidate with welding experience. In fact, Mr. Lueck testified that, to his knowledge, defendant had never hired anyone for the position who did not possess welding experience. An external candidate, Max Hankins, was selected for the maintenance mechanic position. Mr. Han-kins had welding experience and was required to weld periodically on the job. Mr. Lueck estimated that a maintenance mechanic spends about five to ten percent of his or her working time welding.
Tool Room Technician Position
On July 15, 1996, defendant posted an opening for the first-shift tool room technician position. The tool room technician is primarily responsible for preparing all rotary jobs before the jobs go to the press floor. The tool room technician, for example, mounts printing plates for press runs and issues dye tracking for specific printing jobs. Defendant schedules only one tool room technician to work on each shift and, accordingly, the tool room technician must be able to work independently and with little supervision. In fact, the lead man in the tool room, Eric Hansen, supervises the tool room technician less than twenty-five percent of the time the technician works. Moreover, the tool room technician spends a great deal of time communicating with rotary employees as well as outside vendors.
Six individuals applied for the tool room technician position: Plaintiff; Bart Goodwin; Carlene Johnson; Chris Oots; Lanny Turner; and Jeff Werth. A three-member panel interviewed all applicants for the position except for Mr. Turner, who was not eligible for an interview due to recent disciplinary action. The interview team consisted of Eric Hansen, the lead man in the tool room; D.J. Lynch, the second-shift tool room technician; and Troy Lucas, the first-shift tool room technician whose pending departure created the vacancy for which the six individuals had applied.
After each interview, the panel discussed the applicant’s qualifications. Consistent with normal procedures, the panel did not review the personnel files or performance evaluations of the applicants. The panel members did, however, consider their own prior working experience with the applicant in analyzing his or her qualifications for the position.
Eric Hansen had contact with plaintiff on a daily basis and actually worked with plaintiff on several occasions. Mr. Hansen worked with plaintiff in the tool room on three or four occasions over a two- to three-year period. He also worked with plaintiff on a press. Based on these experiences, Mr. Hansen concluded that plaintiff, lacked initiative and required a high degree of supervision. Mr. Hansen would often have to give plaintiff explicit instructions and, on many occasions, would have .to repeat those instructions. Mr. Hansen verified his conclusions by visiting with several press operators about plaintiffs initiative, including Mike Franklin, Len Cornelius, Dale Patton and Paul Nickel. In addition, Mr. Hansen believed that plaintiff possessed poor verbal communication skills' — 'that plaintiff was difficult to understand and his grasp of the English language was not strong.
The panel recommended Bart Goodwin for the position based on the panel members’ experiences with Mr. Goodwin and discussions with press operators and Mr. Goodwin’s team leader. Specifically, the panel concluded that Mr. Goodwin possessed good verbal communication skills and would require minimal supervision. *1230 Mr. Hansen testified that he believed Mr. Goodwin was “eager to learn” and “highly motivated.” Bob Armor, defendant’s production manager at the time, accepted the recommendation of the panel. Mr. Goodwin is still employed as the tool room technician.
Mr. Hansen concedes that, on six or seven occasions, he made comments to plaintiff about the Middle East during the Gulf War such as referring to Saddam Hussein as plaintiffs “uncle.” Mr. Hansen believed that he and plaintiff were joking and testified that sometimes plaintiff would initiate such banter by asking Mr. Hansen, “How’s your buddy in the desert?” Plaintiff testified that such comments made him uncomfortable, that he expressly told Mr. Hansen that he was not from that country, but that Mr. Hansen replied, “All of you are the same because you’re from the Middle East.” Mr. Hansen denies making this statement.
In October 1996, plaintiff filed a charge of discrimination with the Kansas Human Rights Commission alleging national origin discrimination based on defendant’s failure to promote plaintiff to- several positions. Plaintiff received his notice of right to sue and, in June 1997, filed this lawsuit.
Events Leading to Plaintiffs Discharge
On July 28, 1997, Jarrod Johnson reported to his supervisor, Bob Armor, that plaintiff was bothering him. Mr. Armor referred Mr. Johnson to Jennifer Van Wagoner, defendant’s human resources manager. Mr. Johnson informed Ms. Van Wagoner that he was seated in the lunchroom a few days earlier when plaintiff came up behind him, “stooping down like he was going to do something to [him]” and then ran off laughing when Mr. Johnson saw him. Apparently, plaintiff repeated this three or four times during a five-minute period. Ms. Van Wagoner’s notes from her discussion with Mr. Johnson do not reflect that plaintiff ever touched Mr. Johnson. Another employee who witnessed the incident, however, was interviewed in connection with Mr. Johnson’s complaint and reported that plaintiff “kept hitting [Mr. Johnson] on the shoulder ... and poking him in the ribs with his fingers.” Defendant did not discuss Mr. Johnson’s complaints with plaintiff at any time prior to his discharge.
On July 80, 1997, Marci Randel reported to her supervisor, Pat Flaherty, that plaintiff had recently called her over to his press and asked her how she liked her chicken cooked and what kind of wine she liked. When Ms. Randel asked plaintiff why he was asking these questions, he replied that he was going to cook dinner for Ms. Randel. According to Ms. Randel, she wanted plaintiff to know that she was married, so she responded that it was nice of plaintiff to ask her and her husband to dinner. Plaintiff replied, “No. I don’t think you like it that way.” Ms. Randel believed that plaintiff was suggesting more than dinner. According to Ms. Randel, she did not want Mr. Flaherty to take any action with respect to plaintiff. She simply wanted him to be on notice of the situation in case it escalated. Mr. Flaherty referred Ms. Randel to Jennifer Van Wagoner. Ms. Randel shared the incident with Ms. Van Wagoner, who documented the complaint and simply noted “I explained to Marci that she should directly tell [plaintiff] that he should not talk to her in that manner and not to continue the discussion.” Defendant did not discuss Ms. Randel’s allegations with plaintiff at any time prior to his discharge.
At some point between Wednesday, July 30, 1997 and Sunday, August 3, 1997, Ms. Van Wagoner informed Christine Slavski, a human resources employee, that plaintiff was going to be terminated on Monday, August 4, 1997 and instructed Ms. Slavski to prepare plaintiffs COBRA paperwork for the discharge meeting. Ms. Slavski completed the relevant COBRA documents on Sunday, August 3,1997.
On Monday, August 4, 1997, Mr. Armor received a voice mail message from Ms. Van Wagoner instructing him to terminate plaintiffs employment. According to Mr. Armor, he felt “uncomfortable” discharg *1231 ing plaintiff and questioned whether plaintiff could be discharged based solely on the incidents with Ms. Randel and Mr. Johnson. In light of his concerns, he spoke with Ms. Van Wagoner, who apparently advised him to go ahead with the termination of plaintiffs employment. Mr. Armor then contacted Pat Flaherty about the termination decision. After asking Mr. Armor whether the decision had been reviewed and authorized by human resources, Mr. Flaherty told Mr. Armor to proceed with the discharge meeting. Accordingly, Mr. Armor met with plaintiff on August 4, 1997 and informed him that defendant had decided to terminate his employment based on complaints from two employees about plaintiffs allegedly harassing behavior. Mr. Armor did not identify the employees who had made the complaints or explain to plaintiff the nature of the complaints.
Curiously, Ms. Van Wagoner denies making the decision to terminate plaintiffs employment and has no memory of leaving a voice mail message for Mr. Armor. Moreover, Ms. Van Wagoner testified that she did not know who made the decision to terminate plaintiffs employment. In fact, during her testimony, Ms. Van Wagoner clearly attempted to distance herself as much as possible from the circumstances surrounding plaintiffs employment and, rather incredibly, had great difficulty remembering anything about plaintiffs employment or his termination. 3
She did, however, remember that plaintiff had filed “a number of different” complaints about defendant over the course of his employment. 4 Specifically, she remembered receiving a copy of the charge of discrimination that plaintiff had filed with the Kansas Human Rights Commission in 1996 and “may have” known that the charge had been dismissed in March 1997 and that plaintiff had a right to file a lawsuit at that time. According to Ms. Van Wagoner, she would have sent the charge to defendant’s counsel and to her boss Jay Frankenberg, defendant’s president. Although Ms. Van Wagoner does not specifically remember whether Mr. Frankenberg told her that plaintiff was a being a nuisance by filing EEOC charges and lawsuits against defendant, she testified that Mr. Frankenberg may have expressed that belief. She further testified that Mr. Frankenberg did not like spending money on lawyers to respond to EEOC charges and lawsuits, among other things.
Defendant maintains that plaintiffs situation warranted discharge because it involved two back-to-back reports of misconduct. Plaintiff presented substantial evidence at trial, however, that defendant received multiple reports of misconduct about other employees and that those employees were only given verbal warnings. For example, in June 1995, Charles Berry was given a verbal warning after defendant received “multiple reportings by female employees of unwelcome verbal conduct of a sexual nature made by Charles Berry to them in the workplace.” Bob Armor, Pat Flaherty and Jennifer Van Wagoner all signed off on the verbal notification. In May 1996, three female employees in the service bureau department resigned their employment in light of inappropriate conduct by their supervisor, Roger Almageur. According to notes taken during the exit interview of these employees, Mr. Almageur asked one of the *1232 female employees to engage in sex with him, questioned her about her sexual relationship with her significant other and told her that sex with him (Mr. Almageur) would be better. The notes also reflect a complaint that Mr. Almageur discussed his sex life in front of several female employees in explicit detail, including discussions about engaging in sex with two women at one time. In response to these complaints, Ms. Van Wagoner had a discussion with Mr. Almageur in which they agreed that Mr. Almageur would take the next available sexual harassment course and would not discuss his personal life with employees. Defendant urges that the complaints about plaintiffs conduct are distinguishable because one complaint involved allegations of physical contact. In response, plaintiff introduced evidence that another employee, Chris Shaw, was given only a written warning and brief suspension after pushing another employee down an aisle during a heated exchange.
At the time defendant terminated plaintiffs employment, Johnson County, Kansas (where defendant’s facility is located) had an unemployment rate of 2.4 percent. As a result, defendant was having a difficult time hiring and retaining employees as assistant press operators.
COBRA Notification
Defendant typically notifies its employees of their rights under the Consolidated Omnibus Budget Reconciliation Act (COBRA) by sending a copy of the notification papers via certified mail. If, however, defendant is terminating the employment of an individual and plans to conduct a final meeting with the employee, a human resources employee will generally give the employee his or her COBRA paperwork at the meeting, assuming there is enough time to prepare the documents in advance of the meeting.
Christine Slavski, an employee in defendant’s human resources department, prepared plaintiffs COBRA paperwork on Sunday, August 3, 1997 at Ms. Van Wagoner’s request. Ms. Slavski put the completed forms in an envelope, gave the envelope to Janis Shrider, another human resources employee, and placed copies of the forms in defendant’s COBRA file. Ms. Slavski was not present at plaintiffs discharge meeting and, in fact, has never been present at a discharge meeting.
Bob Armor and Janis Shrider were present at plaintiffs discharge meeting. Mr. Armor did not give plaintiff any documents during this meeting. He does not recall whether Ms. Shrider gave plaintiff an envelope or any documents during the meeting. Plaintiff remembers receiving some “papers” during the meeting from either Mr. Armor or Ms. Shrider, but believes it was just his final paycheck. Ms. Shrider did not testify at trial.
Plaintiff did not receive his COBRA notification paperwork until January 15, 1998.
II. Conclusions of Law
Plaintiff claims that defendant failed to promote him to the maintenance mechanic and tool room technician positions on the basis of his race and national origin and terminated his employment in retaliation for filing a charge of discrimination and this lawsuit. Plaintiff also claims that defendant violated the Consolidated Omnibus Budget Reconciliation Act (COBRA), 29 U.S.C. §§ 1161-1168, by failing to provide him timely notice of his entitlement to elect continuation health care coverage upon his termination from employment.
As set forth in more detail below, plaintiff has not persuaded the court that his race or national origin was a motivating factor in defendant’s hiring decisions with respect to the maintenance mechanic or tool room technician positions. Accordingly, judgment is entered in favor of defendant on plaintiffs discriminatory failure-to-promote claims. Plaintiff has, however, persuaded the court that defendant terminated his employment in retaliation for engaging in protected activity. Judgment is entered in favor of plaintiff on his retaliation claim and the court awards plaintiff *1233 $14,778.72 in back pay and $25,000.00 in compensatory damages. The court also assesses $50,000.00 in punitive damages and orders defendant to reinstate plaintiff to his assistant press operator position. Finally, defendant has failed to meet its burden of showing that it made a good faith attempt to comply with the COBRA notification requirements. Thus, judgment is entered in favor of plaintiff on his COBRA claim and the court imposes statutory penalties totaling $500.00 against defendant.
A. Discriminatory Failure-to-Promote Claims
To prevail on a claim of race or national origin discrimination under Title VII, plaintiff bears the ultimate burden of proving by a preponderance of the evidence that his race or national origin was a motivating factor in the defendant’s promotion decisions.
See Elmore v. Capstan, Inc.,
either directly by proving the employer acted with a discriminatory motive or indirectly by showing the stated reason for the discharge was a “pretext for the sort of discrimination prohibited by [Title VII]” — that is, that the facially nondiscriminatory reason was “a cover-up for a racially discriminatory decision.”
Id.
(quoting
Flasher,
Although the
McDonnell Douglas
framework provides a “basic ‘order of presentation of proof so that the controversy can be increasingly brought into focus,” it was never intended to “provide a mechanistic approach to what ultimately becomes a straightforward trial about motive.”
Flasher,
*1234 1. Maintenance Mechanic Position
The court finds that plaintiff has established a prima facie case of race or national origin discrimination with respect to the maintenance mechanic position. Although defendant argues that plaintiff was not qualified for the position because he cannot weld, and thus, did not establish his prima facie case, plaintiff set forth some evidence indicating that the ability to weld was not a prerequisite for the position and that he could acquire those skills during the position’s training period. In support of his assertion, plaintiff introduced at trial the job posting for the maintenance mechanic position. The posting sets forth two distinct categories of information about the position — -“specific knowledge and skills required” and “specific duties and responsibilities.” Welding is not listed in the “specific knowledge and skills required” section of the posting. Rather, “welding” is cited in the “specific duties and responsibilities” section of the job posting. Moreover, the posting notes that the successful applicant will receive a 90-day training period for the position. Thus, the court concludes that plaintiff has adequately established that he was qualified for the maintenance mechanic position for purposes of establishing his prima facie case.
See Comeveaux v. Cuna Mut. Ins. Growp,
The court also finds that defendant has articulated a legitimate, nondiscriminatory reason for its hiring decision. The woman in human resources who interviewed plaintiff informed him that he would not receive the position because of his inability to weld. Moreover, Greg Lueck testified that he would always choose a candidate with welding experience over a candidate without such experience. Mr. Lueck further testified that defendant had never hired anyone as a maintenance mechanic who did not possess welding experience. Finally, the successful candidate for the position had welding experience.
Plaintiff has not met his burden of persuading the court, as the trier of fact, that his race or national origin was a motivating factor in defendant’s hiring decision. As evidence of pretext, plaintiff rehes primarily on the fact that he was interviewed for the position by a woman in the human resources department rather than Tom Randel, the lead man in the maintenance department. Defendant offered credible evidence, however, that all interviews for the position were conducted by the human resources department. Plaintiffs only other evidence of pretext is that he was a “solid” candidate for the position and that Max Hankins, the successful candidate, was no more qualified than plaintiff. Defendant, however, does not violate Title VII or § 1981 by choosing a white, American candidate whom it deems qualified over a qualified candidate of Iranian descent and national origin unless it did so with discriminatory intent.
See Durham v. Xerox Corp.,
In short, there was no showing at trial that defendant’s proffered reason for failing to select plaintiff for the maintenance mechanic position was pretextual and the court is simply not persuaded, by a preponderance of the evidence, that plaintiffs race or national origin was a motivating factor in defendant’s decision to deny him the maintenance mechanic position.
2. Tool Room Technician Position
The court finds that plaintiff has established a prima facie case of race and
*1235
national origin discrimination with respect to the tool room technician position — there were promotional opportunities available that were filled by persons outside the protected class; he applied for the promotion; he was qualified for the promotion; and despite his qualifications he was not promoted.
See Sprague v. Thorn Americas, Inc.,
The court also finds that defendant has articulated a legitimate, nondiscriminatory reason for failing to select plaintiff for the tool room technician position — the panel’s belief that plaintiff would require “constant supervision” and possessed poor verbal skills. Defendant offered evidence that the tool room technician position required an individual to work independently and communicate effectively with others. Defendant has also offered evidence that the interviewing panel believed in good faith that plaintiffs work habits and verbal skills were not in accord with these requirements.
The burden, then, rests on plaintiff to persuade the court, as the trier of fact, that race or national origin was a motivating factor in defendant’s decision to deny plaintiff the tool room technician job.
See Elmore v. Capstan, Inc.,
Finally, plaintiff suggests that defendant’s proffered reasons for its promotion decision is pretextual because Mr. Hansen testified that he verified his conclusions about plaintiffs initiative by visiting with Paul Nickel, among others. Mr. Nickel, however, testified that he never said anything to Mr. Hansen about the degree of supervision required by plaintiff. The court finds that the testimony of Mr. Hansen is not so inconsistent with that of Mr. Nickel as to cause the court to conclude that defendant’s articulated reason for its hiring decision is pretextual. Although Mr. Nickel may not have expressly indicated to Mr. Hansen that plaintiff required a significant amount of supervision, Mr. Nickel probably said something to Mr. Hansen that was not particularly helpful to plaintiffs cause. The court believes that Mr. Hansen heard something from Mr. Nickel that, in the end result, reinforced his belief that plaintiff required a high level of supervision and lacked initiative. Thus, any discrepancies in the testimony of these two individuals is best attributed to innocent misrecollection rather than any discriminatory purpose or motive.
In sum, the court is simply not persuaded, by a preponderance of the evidence, that plaintiffs race or national origin was a motivating factor in defendant’s decision to deny him the tool room technician position.
B. Retaliation Claim
Plaintiff claims that defendant terminated his employment in retaliation for his engaging in protected activity — the filing of an EEOC charge and subsequent lawsuit. After carefully considering the evidence and arguments presented at trial and assessing the credibility of witnesses, the court is persuaded that defendant unlawfully retaliated against plaintiff when it terminated plaintiffs employment. Judg *1236 ment is entered in favor of plaintiff on this claim.
1. Liability
The general approach to Title VII suits set forth in
McDonnell Douglas Corp. v. Green and Texas Dep’t of Community Affairs v. Burdine
also applies to retaliation claims under § 704(a).
Berry v. Stevinson Chevrolet,
As an initial matter, the court concludes that plaintiff has established a pri-ma facie case of retaliation. He engaged in protected activity by filing an EEOC charge in October 1996 and a lawsuit in June 1997. Defendant terminated his employment in August 1997. Finally, as described below, a causal connection exists between plaintiffs activity and defendant’s adverse employment action.
In order to establish a causal connection between his protected activity and defendant’s adverse employment decisions, “plaintiff must show that the individual who took adverse action against him knew of [plaintiffs] protected activity.”
Williams v. Rice,
In light of the foregoing, the court concludes that Ms. Van Wagoner had knowledge of plaintiffs protected activity and decided to terminate his employment based on that activity. Ms. Van Wagoner may not have decided to terminate plaintiffs employment based solely on his October 1996 charge. As plaintiff pointed out at trial, Ms. Van Wagoner may have thought that she was “in the clear” because plaintiff had received his right-to-sue in March 1997 and, to Ms. Van Wagoner’s knowledge, had not filed a lawsuit. Nonetheless, the court concludes that Ms. Van Wagoner seized the opportunity to terminate plaintiff based on the cumulation of plaintiffs protected complaints — both formal and informal — over the course of his employment.
The court also finds that defendant has articulated a facially nonretaliatory reason for terminating plaintiffs employment — two back-to-back complaints about plaintiffs harassing conduct, with one complaint involving allegations of physical touching. The burden then reverts back to plaintiff to demonstrate that defendant’s articulated reasons are a mere pretext for retaliation. Plaintiff has met his burden and has persuaded the court that defendant’s proffered reasons for plaintiffs discharge were pretextual and that defendant unlawfully retaliated against him.
Throughout the trial of this case, defendant’s witnesses consistently maintained that plaintiffs conduct warranted immediate discharge because he was the subject of two back-to-back complaints of harassment, with one complaint involving allegations of physical contact. In light of the evidence presented by plaintiff, however, the court simply does not believe defendant’s proffered reasons. First, it is clear that defendant, despite its insistence to the contrary at trial, did not treat as serious the complaints against plaintiff at the time the incidents were reported. When Marei Randel described the nature of her complaint against plaintiff to Ms. Van Wagoner, Ms. Van Wagoner simply explained to Ms. Randel that “she should directly tell [plaintiff] that he should not talk to her in that manner and not to continue the discussion.” There is no evidence that Ms. Van Wagoner felt the need to pursue the issue any further after giving this advice to Ms. Randel. Moreover, Mr. Flaherty, the individual to whom Ms. Randel first reported the incident, testified that he did not encourage or suggest to Ms. Van Wag *1238 oner that she (or anyone else) mete out any discipline in response to Ms. Randel’s complaint. Similarly, there was no evidence presented at trial that the complaint made by Jarrod Johnson was regarded as serious enough to warrant plaintiffs termination. The memorandum drafted by Ms. Van Wagoner with respect to her discussion with Mr. Johnson does not reflect that Ms. Van Wagoner intended to take any further action with respect to his complaint. Thus, the court does not believe that defendant, at the time of the report-ings, perceived the complaints of Ms. Ran-del or Mr. Johnson as serious enough to warrant significant disciplinary action against plaintiff. In fact, contrary to its own policy, defendant did not even interview plaintiff with respect to the allegations.
Other evidence presented at trial persuades the court that defendant’s proffered explanation for plaintiffs discharge is pretextual. Bob Armor testified that he was uncomfortable with the termination decision and questioned whether an employee could be terminated based solely on the alleged incidents. When the court asked Pat Flaherty whether he considered the conduct sufficient to warrant discharge, Mr. Flaherty was visibly uncomfortable and struggled to articulate a response. Mr. Flaherty also testified that it was unusual that plaintiff was not asked for his side of the story prior to his discharge.
Plaintiff presented substantial evidence at trial that defendant treated similarly situated employees differently. Specifically, plaintiff compared his treatment with that received by Charles Berry and Roger Almageur. Mssrs. Berry and Almageur were the subjects of sexual harassment complaints, at least one of which was surely deemed by defendant to be considerably more serious than Ms. Randel’s complaint against plaintiff. In June 1995, several female employees complained that Mr. Berry had made unwelcome comments of a sexual nature in the workplace. He was not discharged and, in fact, received only a verbal warning. Bob Armor, Pat Flaherty and Jennifer Van Wagoner signed off on the verbal notification. In May 1996, three female employees in the service bureau department resigned their employment in light of inappropriate conduct by Mr. Almageur. Mr. Almageur, a supervisor, was accused of asking one of his female subordinates to engage in sex with him, of questioning her about her sexual relationship with her significant other and telling her that sex with him (Mr. Almag-eur) would be better. He was also alleged to have discussed his sex life in front of several female employees in explicit detail, including discussions about engaging in sex with two women at one time. In response to these complaints, Ms. Van Wagoner had a discussion with Mr. Almageur (which did not occur with plaintiff) in which they agreed that Mr. Almageur would take the next available sexual harassment course and would not discuss his personal life with employees. No further action was taken.
Defendant urges that plaintiffs conduct is distinguished from other employees who engaged in inappropriate behavior but received more lenient treatment because one complaint against plaintiff involved allegations of physical contact. Again, the court does not believe defendant’s explanation and' views it instead as a mere attempt to justify an action for which no lawful explanation exists. Bearing on the court’s conclusion here is evidence presented at trial that another employee, Chris Shaw, was given only a written warning and brief suspension after pushing another employee down an aisle during a heated exchange. Plaintiffs alleged behavior, albeit annoying, seems strikingly short of the kind of touching which would rise to the level of seriousness claimed by defendant at trial. 9
*1239 The court wishes to make clear that it respects the rights of management to make disciplinary decisions in the workplace. The court is not second-guessing the abstract fairness of the procedures employed. It recognizes that bad, and even unfair, decisions can be made without unlawful motivations. What the court does conclude here, in the strongest of terms, is that defendant’s purported rationale so does not hold up, that its procedures were so off the mark, and that the credibility of the main actor in the deci-sionmaking process (Ms. Van Wagoner) was so bad, that the court is firmly convinced that the decision to terminate plaintiffs employment was unlawfully retaliatory.
2. Remedy
Having concluded that defendant unlawfully retaliated against plaintiff, the court turns to address the appropriate remedy for the violation. Under Title VII, the court may award a successful plaintiff any appropriate relief, including reinstatement, back pay “or any other equitable relief’ the court deems appropriate. See 42 U.S.C. § 2000e-5(g). Moreover, the Civil Rights Act of 1991 expressly provides that a successful Title VII plaintiff may recover compensatory and punitive damages. See 42 U.S.C. § 1981a(a). 10
The court turns first to the issue of back pay. Ordinarily, a back pay award covers the time period up until the date of judgment.
See Daniel v. Loveridge,
The court concludes that an award of back pay is appropriate and necessary to make plaintiff whole in this case.
See Albemarle Paper Co. v. Moody,
Clearly, plaintiff had an obligation to use reasonable methods to mitigate his damages.
See
42 U.S.C. § 2000e-5(g)(1) (amounts earnable with reasonable diligence reduces back pay allowable);
EEOC v. Sandia Corp.,
Nonetheless, the court is not inclined to award plaintiff $29,557.44 in back pay. Plaintiff was earning $10.39 per hour at the time of his discharge. In light of the unemployment rate in Johnson County, the court is convinced that plaintiff could have found other employment and earned at least minimum wage, or half of his hourly wage at defendant. See 29 U.S.C. § 206 (setting minimum wage at $5.15 per hour). There is no reason why plaintiff should not or could not have obtained some gainful employment over this period, even if the impediments discussed below might have prevented him from obtaining comparable employment. Thus, the court concludes that a back pay award of $14,-778.72 (half the amount requested by plaintiff) is sufficient to make plaintiff whole for his injuries.
Compensatory damages are ordinarily awarded for emotional pain, suffering, mental anguish and other nonpecuniary losses.
See
42 U.S.C. § 1981a(b)(3). While plaintiffs testimony was “not the most graphic and detailed display of emotional and mental anguish and distress,” the court concludes that the evidence supports some award for such anguish and distress.
See Wulf v. City of Wichita,
The court now turns to address whether reinstatement or front pay is the appropriate remedy to redress plaintiffs future losses. Reinstatement and front pay are mutually exclusive remedies for the same injury.
James v. Sears, Roebuck
&
Co.,
Plaintiff testified that he desired reinstatement to his assistant press operator position. According to plaintiff, he has had great difficulty securing other employment in light of the circumstances surrounding his discharge from defendant. When potential employers ask plaintiff his reasons for leaving defendant, he tells them the truth—that he was terminated for alleged sexual harassment. Understandably, these employers have shied away from hiring plaintiff. Significantly, defendant did not oppose reinstatement and did not suggest that reinstatement was unworkable for any reason.
See id.
(reinstatement may not be appropriate where evidence shows that a “productive and amicable working relationship would be impossible”) (quoting
Prudential Fed. Sav.,
Lastly, the court turns to address the issue of punitive damages. In a Title VII case, punitive damages may be awarded “if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(l). The defendant’s acts need not have been “extraordinarily egregious” to support a finding of punitive damages.
Adakai v. Front Row Seat, Inc.,
C. COBRA Claim
COBRA requires employers, if a qualifying event occurs, to provide former employees the opportunity to continue health care coverage under the employer’s plan at the former employee’s expense. 29 U.S.C. § 1161;
Smith v. Rogers Galvanizing Co.,
Defendant was both the sponsor and the administrator of the insurance plan. Thus, it was defendant’s duty under COBRA to timely notify plaintiff that he could elect continuation coverage. 11 Although defendant maintains that proper notification was given to plaintiff on the day of his discharge, plaintiff alleges that he did not receive notice of his COBRA rights until January 15, 1998 — more than five months after his discharge.
Although COBRA contains no specific requirements as to the manner in which notice must be given, the Tenth Circuit has recognized that “a good faith attempt to comply with a reasonable interpretation of the statute is sufficient.”
Rogers Galvanizing,
Defendant has not met its burden of showing that adequate COBRA notice was given. Defendant’s evidence at trial demonstrated only that Ms. Slavski prepared plaintiffs COBRA paperwork on August 3, 1997, put the completed forms in an envelope and gave the envelope to Ms. Shrider. Ms. Slavski was not present at plaintiffs discharge meeting. Although Ms. Shrider was present at the meeting, she did not testify at trial and, consequently, the court has no information with respect to Ms. Shrider’s standard COBRA notification practices or whether she attempted in good faith to deliver the documents to plaintiff. Thus, the court concludes that defendant has not met its burden of showing a good faith attempt to comply with the notification requirements of COBRA.
The court turns, then, to address the appropriate remedy. Plaintiff did not incur any medical bills or related expenses *1243 during the relevant period. He does, however, seek statutory penalties in the amount of $100 per day from August 4, 1997 through January 9, 1998. 12 Although COBRA permits the court to assess statutory penalties of up to $100 per day against a plan administrator for failure to comply with notice requirements, the imposition of penalties is committed to the discretion of the trial court. See 29 U.S.C. § 1132(c)(1).
Here, plaintiff does not claim to have been prejudiced or injured in any way as a result of defendant’s failure to notify him of his COBRA rights. Although plaintiff vaguely testified that he needed to go to the doctor but declined to do so because he was not insured, he did not point the court to any specific medical problems for which he desired to seek medical treatment. He referred only to a routine dental examination that he elected to cancel. Moreover, there was no showing at trial that defendant acted in bad faith or otherwise intentionally withheld plaintiffs COBRA notification paperwork. At most, the evidence demonstrated a possible oversight on the part of defendant. In the absence of any showing of prejudice to plaintiff or bad faith on the part of defendant, the court is not inclined to impose penalties to the extent requested by plaintiff and, instead, imposes a lump sum penalty of five hundred dollars ($500.00) to deter defendant from similar oversight in the future.
See Moothart v. Bell,
under § 1132(c)(1)(B) in the absence of a showing or prejudice or bad faith.”) (citing
Rodriguez-Abreu v. Chase Manhattan Bank, N.A.,
IT IS THEREFORE ORDERED BY THE COURT THAT judgment be entered in favor of defendant Graphic Technology, Inc. on plaintiffs discriminatory failure-to-promote claims.
IT IS FURTHER ORDERED BY THE COURT THAT judgment be entered in favor of plaintiff Bijan Daneshvar on his claim of retaliation in the amount of $14,-778.72 in back pay; $25,000.00 in compensatory damages; and $50,000.00 in punitive damages, and that judgment be entered in *1244 favor of plaintiff on his COBRA claim in the amount of $500.00.
IT IS SO ORDERED.
Notes
. Because § 1981 does not protect individuals from discrimination based on national origin,
see Aramburu v. Boeing Co.,
. Plaintiff does not recall the woman’s name.
. The court has obtained a transcript of Ms. Van Wagoner's testimony. During the course of her testimony, she responded with "I don't remember,” "Not that I remember,” "I can’t remember,” or "I really don't remember” a total of 71 times. She replied, "I don't know” a total of 19 times. She responded with "I don’t recall,” “I can't recall,” or "Not that I recall” a total of 14 times. Finally, she responded, “I have no idea” a total of 3 times. These figures do not even take into account that numerous times she replied, "no” when opposing counsel asked Ms. Van Wagoner whether she remembered certain events.
. Plaintiff, for example, filed an earlier EEOC charge against defendant in 1993 and a subsequent lawsuit in 1995. Plaintiff also filed at least one workers' compensation claim during the course of his employment and a complaint with OSHA.
. The court applies the same standards and burdens to plaintiffs § 1981 and KAAD claims as applied to his Title VII claims and reaches the same conclusions under all statutes.
See Aramburu v. Boeing Co.,
. The same elements apply to plaintiff's retaliation claim under § 1981.
See Roberts v. Roadway Express, Inc.,
. Not surprisingly in light of her overall testimony, Ms. Van Wagoner claimed not to remember whether she knew about plaintiffs June 1997 lawsuit at the time of his discharge. Plaintiff, however, claims that his lawsuit was the subject of rumors in defendant's facility prior to his discharge. A summons was not issued to defendant until November 1997. For that reason, the court finds the evidence to be inconclusive whether Ms. Van Wagoner had knowledge of plaintiff's lawsuit prior to plaintiff's discharge.
.In its responses to plaintiff's first interrogatories, defendant identifies Ms. Van Wagoner, Mr. Armor and Mr. Flaherty as tire individuals who made the decision to terminate plaintiff’s employment.
. The court also bears in mind that defendant repeatedly argued during the course of the trial that, in light of the low unemployment rate in Johnson County and the resulting difficulty defendant experienced in hiring and retaining assistant press operators, it would not have terminated plaintiff unless absolutely *1239 necessary. The court, however, finds that this evidence actually bolsters plaintiff's showing of pretext. In light of defendant's great need for assistant press operators, the court simply does not believe that it terminated plaintiff for the reasons articulated. Rather, the court concludes that defendant used these two complaints as an excuse to discharge an employee who had been a "nuisance” by complaining about discriminatory treatment in the workplace.
. ‘ For 'purposes of this case/it is irrelevant whether plaintiff recovers compensatory and punitive damages under § 1981 or whether he recovers those damages under Title VII. The court, however, is not awarding plaintiff damages under both statutes.
Roberts v. Roadway Express, Inc.,
. Courts are split on whether an employer who is also a plan administrator has fourteen days or forty-four days to notify a beneficiary.
See Roberts v. National Health Corp.,
. Although the issue is not relevant in light of the court's decision to impose a statutory penalty of $500 (rather than plaintiffs request of $100 per day), daily penalties could not be assessed from the day of plaintiff’s discharge. As discussed in note 11 of this opinion, defendant would have had either a 14- or 44-day grace period in which to give plaintiff notice. Thus, the appropriate measure for calculating any daily penalties would begin on either August 18, 1997 or September 18, 1997. Moreover, it is unclear why plaintiff’s proposed stop-date is January 9, 1998 rather than January 15, 1998, the day he received notice. In any event, this, too, is not relevant to the court’s analysis here.