Ortega v. Chicago Board of EducationOrtega v. Chicago Board of Education
MEMORANDUM OPINION AND ORDER
Linda Ortega was a tenured teacher in the Chicago Public School (“CPS”) system. She taught fifth grade at Hedges Elementary until the principal of that school terminated her after determining she no longer met the requirements for her position. Ortega brought this lawsuit alleging intentional discrimination by the principal and her employer, the Chicago Board of Education (“the Board”), in violation of the Americans With Disabilities Act (“ADA”), 42 U.S.C. §§ 12111-117. Summary judgment was entered in favor of thé principal because the ADA provides a right of action against the employer but not the employee’s supervisor. Ortega’s discrimination claims against the Board went to trial on October 13-16, and 19, 2015, and the jury returned a verdict in Ortega’s favor, awarding her $285,000 in compensatory damages.
Following the jury’s verdict, the parties appeared before the Court on numerous occasions to address disputes over the equitable relief, if any, to which Ortega might be entitled as a result of the jury’s finding of intentional discrimination. On August 15, 2016, the Court held a hearing to allow the introduction of additional evidence on the equitable relief question. After careful consideration of the evidence introduced at the equitable relief hearing, as well as the evidence submitted at trial and the legal briefs filed thereafter, the Court now con-eludes that Ortega is entitled to equitable relief in the form of back pay, prejudgment interest,- front pay, and lost pension benefits, as more fully set forth below.
Governing Principles
The ADA incorporates the remedies available to a plaintiff in a Title VII discrimination action. . See 42 U.S.C. § 12117(a); 42 U.S.C. § 1981a(a)(2). Those remedies include compensatory damages “for future. pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniaxy losses.” 42 U.S.C. § 1981a(b)(3). For employers such as the Board (more than 500 employees), compensatory damages are capped at $300,000, although the jury is not informed of this cap. See 42 U.S.C. § 1981a(b)(3)(D), § 1981a(c)(2). The jury’s $285,000 compensatory award is within the statutory cap, and is not before the Court in this opinion. Instead, the issue to be decided is whether Ortega is entitled to one or more of the remedies specifically excluded from the jury’s compensatory award, namely, “back pay, interest on back pay, or any other type of relief authorized under ... [42 U.S.C. § 2000e-5(g)].” 42 U.S.C. § 1981a(b)(2).
Back pay and other forms of equitable relief are available in an ADA case, see 42 U.S.C. § 1981a(a)(2); 42 U.S.C § 2000e-5(g)(1), but the decision of whether to award them is reserved for the trial court. See Pals v. Schepel Buick & GMC Truck, Inc.,
Back Pay
A. Overview
“Complete relief for a victim of discrimination generally will include an award of back pay; indeed, such an award is presumptively proper once a violation has been shown.” Ilona of Hungary, Inc.,
Ortega seeks an award of net lost wages through August 15, 2016
The Board argues, on the other hand, that Ortega’s entitlement to back pay-should be limited in two respects: first, by her failure to mitigate her damages; and, second, by a stipulation to a back pay amount to which the parties agreed during the trial. The Board has been inconsistent about whether it "is seeking to impose both of these limitations at the same time, and its. most current position on that question remains unclear.' In addition, the Board takes issue with Ortega’s calculation of net lost wages, and further argues that Ortega should not recover any prejudgment interest because of her purported delay in this litigation. Taking these arguments into- account, the Board provides the Court with three back pay options. First, the Board suggests that Ortega is entitled to net lost wages only through June 19, 2012 (the date on which she allegedly stopped mitigating her damages) in the amount of $33,335, to which the Board would add $2,333.45 in lost pension contributions, for a total back pay award of $35,668.45. R. 179 at 7. In what the Court will assume is an alternative calculation, the Board argues Ortega is entitled to the stipulated amount of $215,835-in back pay, although the Board is unclear whether it believes tiie stipulated amount is subject to further deductions.
• The Court will begin by reviewing the evidence regarding Ortega’s job history. The Court then will address 'the Board’s affirmative defense of failure-to mitigate, followed by The Board’s argument that the parties’ trial stipulation serves to limit the amount of Ortega’s back pay award. Next, the Court' will resolve disputed issues related to the net lost wages calculation and prejudgment interest on net lost wages.
Ortega began her employment with the Board on January 26, 1998. R. 139 at 79 (Tr. Transcript 143); R. 184 at 40-41; Def. Ex. X.
On June 19, 2010, Ortega moved from the reassigned teacher’s pool to the substitute teacher’s cadre. The substitute teacher’s cadre is the second-year benefit given to a tenured teacher who has not found another teaching position after spending one year in the reassigned teacher’s pool. The pay of a cadre substitute teacher is substantially less than the pay of a reassigned teacher. If a teacher’s time in the cadre is up and she still has not been appointed to a permanent position, her employment with the Board is terminated. R. 141 at 127-29 (Tr. Transcript 191-93). Ortega supplemented her income as a cadre substitute teacher with a job as a part-time professor at City Colleges of Chicago. Id. at 167-68 (Tr. Transcript 231-32). Her employment with the Board ended altogether sometime in 2011. See R. 184 at 165.
For more than a year after her final .separation from the Board, the only income Ortega received was her part-time City Colleges salary and unemployment compensation. R. 139 at 173-74 (Tr. Transcript 237-38). In May 2013, she was offered and accepted a job as a human services caseworker with the State of Illinois. Initially, she received a trainee salary of $38,000 per year, which then increased to $48,000 per year. Id. at 174-75 (Tr. Transcript 238-39); R. 184 at 165.
The following is a summary of Ortega’s job history:
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C.' Failure To Mitigate
“Liability for back pay begins at
An employer may avoid the accrual of back pay by showing that the plaintiff failed to mitigate her damages. See Graefenhain v. Pabst Brewing Co.,
1. Diligence
Ortega kept detailed records to document her job applications in the first three years following termination of her tenured position at Hedges Elementary. See R. 139 at 166-67 (Tr. Transcript 230-31). She testified that in the first school year after she was reassigned (2009-2010), she applied for 127 teaching positions. Id. at 166 (Tr. Transcript 230). The next school year (2010-2011), she applied for about 326 teaching positions. Id. In the third school year following her reassignment (2011-2012), she applied for 487 teaching positions. Id. Ortega testified that after June 2012 she “decided not to continue investing [her] time and energy [in applying for teaching jobs with the Board]” because “it became apparent to [her] that [she] was not going to obtain [such] a job.” Id.
The Board argues it has met its burden of proof on its failure to mitigate defense after June 2012
That is exactly what Ortega did here. She testified that she submitted hundreds of job applications each year, and she .never testified that she stopped aggressively looking for a job. Nor did she ever admit that she made no applications whatsoever after a certain point. In testimony not tied to any definite time period, she stated that she “applied for at least a thousand jobs,” which included “not just ... high-income [jobs],” like her old teaching position, but non-teaching jobs as well, including “everything that [she] thought [she] might be eligible for.” R. 139 at 167 (Tr. Transcript 231). Nevertheless, after three years of searching for a comparable teaching'job, she decided to focus her search on any employment for which she was qualified.
The Board cites Williams v. Imperial Eastman Acquisition Corp.,
The Supreme Court has recognized that “[t]he extended time it frequently takes to obtain satisfaction in the courts may force-a discrimination claimant to suffer through years of underemployment or unemployment before being awarded the job claimant deserves.'... The claimant cannot'afford to stand aside while the wheels of justice grind slowly. toward the ultimate resolution 'of the lawsuit. The claimant needs work that will feed a family and restore" self-respect'. A job is needed— now.” Ford Motor Co.,
Implicit in the holdings of the cases approving of a plaintiff lowering her job expectations after a lengthy search for comparable work is the conclusion that, once a lower paying job is accepted, the plaintiff may recover back pay damages without being required to make further mitigation efforts. As one court stated, “a plaintiff must continue his efforts at mitigating his, post-verdict but pre-reinstatement losses. Where, however, the plaintiff is genuinely unable to find work or is forced to ‘lower his sights’ and accept an inferior position, the defendant will be responsible for the difference (however great) between what the employee would have been earning and what he actually earned during the period prior to his reinstatement;” Coleman,
2. Likelihood That Ortega Might Have Found Comparable Employment
Even if the Court were to conclude that Ortega’s efforts to mitigate her damages were less than diligent, the Board still has not met its burden of proof on the second issue of whether it was reasonably likely that Ortega would have obtained another teaching job had she continued looking after June 2012. See, e.g., Gracia,
On the rare occasion that CPS principals interviewed me in person or on the phone, while I was a reassigned teacher, they dwelled , on how I became a reassigned teacher, I was offered a job twice and both job-offers:got retracted. Even when I had stated that it was under litigation and was not allowed to talk about the subject, the administrators pressed on.
R, 166 at 8 (¶ 12). While Ortega’s post-trial testimony regarding the reasons the two potential job offers never came to fruition arguably is speculative, just as speculative is the conclusion the Board asks the Court to draw from Ortega’s experience with the two potential jobs — that it was reasonably likely she would have gotten another teaching position had she kept looking.
■ The Board also .cites to the fact that another tenured teacher testified at trial that she got'a teaching position at Hedges Elementary shortly after being placed in the reassigned teacher’s pool. But the teacher’s testimony does not cover the circumstances'under which she obtained her job at Hedges, which, in any event was in the fall of 2010, while Ortega was still looking for comparable teaching positions with the Board. Without information about whether her situation was similar to Ortega’s, the Court is unable to draw a non-speculative inference that the ability of the teacher in question to get a job in the fall of 2010 has any bearing on whether Ortega would have been able to do so' after June 2012.
Finally, the Board introduced additional evidence at the equitable relief hearing through the testimony of Kathryn Gray, the current manager of the reassigned teacher’s pool. The Board argues that “Ms. Gray testified that 58% of the teachers in the reassigned teacher’s pool found full-time teaching positions at the Board despite the fact that they were typically limited to- five months in the pool.” R. 179 at 6. Ms. Gray testified that she was not the manager of the pool during the relevant time period, R. 184 at 214, and it is by no means clear that current statistics have any meaning for the earlier time period when Ortega was a member of the pool. Ortega testified-that “[w]hen [she] was a reassigned teacher [in the] 2009 through 2010 academic year, it was a well known fact that reassigned teachers are blacklisted and most are not rehired as full-time tenured teachers.” R. 161 at 5 (¶ 7).
While Ortega’s testimony regarding the chances of a reassigned teacher finding a permanent position may be speculative, it would appear that Gray’s testimony, though, couched in statistics, is just as speculative. As far as the Court can tell, Gray’s 58% estimate is not grounded in any objective data. And Gray could not provide a breakdown in terms of ■ how many teachers who got hired from the reassigned teacher’s pool were, like Ortega, over the age of 40 and tenured more than ten years, characteristics which Ortega argues would make her chances of finding a permanent position lower than average. See R. 184.at 230. Moreover, even if Gray’s testimony regarding the percentage of teachers who find a job during their five
- In sum, the Court finds that neither Gray’s testimony nor any other evidence cited by the Board satisfies' the Board’s burden of proof on the issue of whether Ortega would have found another teaching position had she continued looking past June 2012. See Pierce v. Atchison, Topeka & Santa Fe Ry. Co.,
D. Trial Stipulation
1. Background
The Board’s second argument for limiting Ortega’s back pay award requires some background information regarding how the trial stipulation came about. Prior to‘trial, the parties agreed to an advisory jury verdict on the back pay-issue. See Seventh’ Circuit Pattern Civil Jury Instruction 3.11, Committee Comment a (“The court may empanel the jury as an advisory jury on the [back pay] issue; or the parties may, with the court’s consent, agree'that the jury will decide the issue.”). During trial, however, it became apparent 'that neither side was’ fully prepared to present evidence to the jury on the back pay issue.
As a result of the parties’ agreement, the Court gave the following jury instruction:
If you find the plaintiff has proven her claim of discrimination by a preponderance of the evidence, you may award her as damages any lost wages she would have received from the defendant if she had not been displaced from her position at Hedges Elementary School minus the earnings the plaintiff received from other employment during that time that she would not otherwise have received. It is plaintiff s burden to prove that she lost wages and their amount. If she fails to do so for any periods of time for which she seeks damages, then you may not award damages for that plaintiff.... The parties have agreed ... that the amount of back pay at issue is $215,835. This amount is only relevant if you find plaintiff has proven liability. By stipulating, the defendant does not admit any liability.
R. 141 at 139-40 (Tr. Transcript 707-08).No instruction was requested by the Board or given to the jury for the Board’s failure to mitigate defense, notwithstanding that, prior to entering into the stipulation, the Board had anticipated presenting that issue to the jury as indicated by its pre-trial proposed jury instructions. The Board now argues that Ortega’s back pay award should be limited to no more than the $215,835 stipulated amount.
2. Analysis
The Seventh Circuit has said that “[sjtipulations regarding the nature of trial proceedings are crucial to the prompt and efficient disposition of litigation. Therefore, once made, a stipulation is binding unless relief from the stipulation is necessary to prevent a ‘manifest injustice’ or the stipulation was entered into through inadvertence or based on an erroneous view of the facts or law.” Graefenhain,
The Court’s review of the record indicates a number , of factors relevant to its exercise of .discretion here. First, the circumstances surrounding the stipulation suggest there was no meeting of the minds regarding what the stipulated amount wás meant to represent. While both parties argue what they “understood” the stipulation to cover,
Second, the Board cannot argue it will be prejudiced if the Court does not hold Ortega to the stipulation. Ortega “is not materially changing her positions or arguments in any way, such as if she was now seeking to recover a type of damages -that she never requested or was seeking to proceed on entirely new theories.” Hathaway,
Third, it would be unfair to hold Ortega to the stipulated amount when the confusion surrounding the stipulation came about as á result of the Board’s desire, for strategic reasons and despite its lack of preparation, to submit the back pay issue to the jury for “advisory” purposes. At the very least, if the stipulation in fact was an accommodation to both parties and Ortega did intend to agree to a final number, there is a strong case to be made that the stipulated amount was intended to reflect net back wages and to take into account the Board’s failure to mitigate defense.
Fourth, it was explicitly recognized by the parties that several back pay issues, such as pension amounts, recovery for health benefits, and whether the Board was entitled to off-set the amount of the back pay award with unemployment compensation, would be dealt with after trial. Ortega’s counsel also explicitly preserved the issue of whether Ortega was entitled to ■additional amounts in back pay for the period after the jury reached a verdict through the date on which judgment was entered. While it is true that, other" than these items, Ortega’s' counsel did not expressly reserve adjustments to the stipulated back pay amount, the opposite also is true; that is, nowhere in the record does it clearly show that the parties intended by entering into the trial stipulation to preclude other matters from being raised post-trial for purposes of the Court’s final determination on the back pay issue. Further, the Court repeatedly warned the parties that the jury’s verdict regarding back pay was for advisory purposes only, and that the Court would retain final decision-making authority on the issue. See, e.g,, R. 127 at 50-54; R 141 at 194. Although the Court’s-comments were made in the context of discussions regarding pension benefits, it would not have been unreasonable for Ortega’s counsel to have taken the Court’s statements to mean that additional evidence would be allowed after the jury verdict to enable the Court to reach a final conclusion regarding the entire back pay amount.
For all of the above reasons, the Court, concludes that the stipulation is not binding, and the Court will decide the back pay issue independent of the trial stipulation based on the evidence introduced at trial and at the post-trial equitable relief hearing.
E; Lost Wages
The Court now turns to the net lost wages calculation, which includes two components: (1) the total amount of wages Ortega would have received from the Board if she had not been displaced from her position at Hedges Elementary; and (2) Ortega’s actual earnings from other employment during the same time period. See Horn v. Duke Homes, Div. of Windsor Mobile Homes, Inc.,
X. Projected Earnings
Ortega retained an actuary to determine the amount of her lost earnings. To calculate what Ortega’s salary would have been had she not been terminated, the actuary began with the undisputed fact that, during Ortega’s final year of full tenured employment, she received an annual salary of $81,646.07. See R. 184 at 166; Pl. Exs. 7, 13. The actuary then relied on the salary schedules attached to the Chicago Teacher’s Union Collective Bargaining Agreements (“CBAs”) to determine what Ortega’s salary would have been for each of the applicable school years for which she was
Another way in which the actuary’s calculations might have been slightly off were that they may have failed to account for the fact that an employee moves up a step on the anniversary date of his or her employment with the Board rather than at the start of the next school year. Ortega’s anniversary date was January 26. R. 184 at 41. Therefore, Ortega would have begun a school year in September at her previous step and moved up to the next step about mid-way through the school year. The actuary’s projected salary figures for each school year relied on the annual salary amounts shown in the CBA for each new step, when, according to the Court’s interpretation of Via’s testimony, Ortega’s actual sailary for a given school year would have been a blend of the salary shown on the CBA schedule applicable to that'school year for her old, carry-over step (September through-January) and the salary for her new, or next step up (February through June).
Ortega argues that, after adjustments are made to her actuary’s calculations tó reflect what she believed the evidence at the hearing showed regarding step increases, her salary in the years following her termination would have been as follows:
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The total lost earnings through August 2016 sought by Ortega is $547,359. R. 178 at 6. While these numbers partially address the mistakes in some of the actuary’s assumptions, they still appear to be somewhat inaccurate. Ortega appears to assume she would have moved to a step 15 after spending only one year at step 14 when Via testified there was a four year wait before moving from step 14 to 15. And
The Board argues that Ortega’s lost earnings had she not been terminated amount to only $524,062. See R. 179 at 7. The Board’s salary projections are shown on Exhibit Z, which was a document generated by the Board for purposes of the equitable relief hearing and introduced during Via’s testimony. Via testified, however, that he was not involved in the preparation of Exhibit Z, and he was never asked whether he could attest to the accuracy of the calculations reflected in it. R. 184 at 52. Although Ortega did not object either to the admission of that document for lack of foundation, or to Via’s testimony concerning the information contained in that document for lack of personal knowledge, the Court takes Via’s admission of lack of personal knowledge into account in deciding what weight to give that document. The Board’s salary calculations on Exhibit Z show only a biweekly pay figure, not an annual pay amount, and do not indicate the lane or step from which that biweekly pay figure is derived. Further, Via testified he did not know what lane or step was being applied. Therefore, it is difficult for the Court to make any kind of assessment as to the degree to which Exhibit Z accurately reflects what Ortega’s salary would have been.
“In determining the proper award of back pay, a court must make sure that any award is not speculative and does not put the plaintiff, in a better position than she was before her termination.” Hathaway,
The Board argues the Court should disregard the calculations of Ortega’s actuary because of the “numerous inaccuracies” the Board claims its cross-examination revealed. But the discrepancies resulting from predictions and/or presumptions made by the actuary did not call into question the basic accuracy of his calculations; they only suggested that his calculations were slightly off (the difference between the Board’s calculation of loss wages and Ortega’s revised calculation is around 4.5 percent). And, as previously noted, exactness is not required.
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The step freeze went into effect in June 2015, when the 2012-2015 CBA expired. But in the 2015-2016 school year, Ortega would have remained at Step 15a in any event. After expiration of the 2012-2015 CBA, the Board and the Chicago Teachers Union failed to reach agreement on a new CBA, so there are no new salary schedules to apply to the 2015-2016 school year (and later). The actuary testified - that he assumed that had there been new salary schedules, they would have provided for at
Summary of Projected Earnings.
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2. Actual Earnings
The actuary' obtained Ortega’s' actual earnings information from her tax returns, and then made adjustments to reflect that the relevant earnings figures are for school years rather than tax returns. See Exhibit 13. The Board also uses Ortega’s tax returns to determine her actual earnings. See R. 179 at 7 (citing to
3. Net Lost Wages
Putting together the above information, Ortega’s net lost wages for each school year through August 15, 2016 are as follows:
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Ortega’s total net lost wages from June 2010 through August 2016 amounts to $322,788.
F. Prejudgment Interest
Prejudgment interest is presumptively available on a back pay award. See Shott v. Rush-Presbyterian-St. Luke’s Med. Ctr.,
1. The Issue op Delay
The Board argues that the Court should deny . Ortega an award of prejudgment interest because of her “delays in filing, serving and prosecuting this case.” R. 179 at '8-9. Ortega was required to bring her civil action against the. Board within 90 days of receiving a right to sue notice from the .Equal Employment Opportunity Commission (“EEOC”). 29 C.F.R. § 1601.28(e)(1). There is no contention that Ortega’s filing of this lawsuit was untimely under this provision.
The Court does not agree that Ortega should be denied prejudgment interest based on the fact that she could have filed this lawsuit and served the Board earlier than she did. The definition of “delay” is “the act of postponing, hindering, or causing something to occur more slowly than normal.” https://www.merriam-webster. com/dictionary/delay. The Board does not contend that Ortega filed her lawsuit or served the Board outside the time periods permitted by the applicable rules. Congress already has set forth what it believes is a reasonable time for filing suit and serving a complaint, and Ortega did those things within those deadlines. By definition, therefore, she did not do anything slower “than normal.” To impose some other, shorter timeline would be arbitrary and create unnecessary uncertainty, as well as penalize employment discrimination plaintiffs for exercising procedural rights to which they are entitled under the discrimination statutes and federal rules of civil procedure.
In addition, the Board fails to take into account substantial delay during the administrative process (prior to Ortega’s filing of an EEOC complaint) for which Ortega claims the Board was responsible. See R. 166 at 2 (“Upon participating in the arbitration process, Board lawyer Edward J. Wong III ... delayed about six months in submitting the Board’s response.”). It would not be fair to impose a penalty on Ortega for delay in the EEOC proceeding without taking into account delay caused by the Board in investigating and administratively resolving Ortega’s complaints pri- or to her filing of the EEOC complaint, and the slippery slope of such a comparative analysis were the Court to embark on that path is obvious.
The Board also claims Ortega should be penalized for the delay caused by her missing certain court deadlines during this litigation, which purportedly prevented the Court from ruling on the Board’s disposi-tive motions and Ortega’s demand for equitable relief in a timely manner. R. 179 at 8. The Court again rejects the Board’s delay argument. While Ortega missed one or two deadlines following the jury’s verdict, she did so by only a week or less. There has been no showing by the Board that those missed deadlines actually caused delay in the timing of any court ruling or the overall progression of the case, and the Court is skeptical that they did.
In addition, as is often the case, both parties have been responsible for some delay. See Coleman,
Ortega’s argument regarding difficulties she has had with the Board during these post-trial proceedings brings up another point. Most if not all of the information necessary to determine the back pay amount was within the Board’s control. Had Ortega simply presented her best estimates, the Court might have concluded that was sufficient and resolved the back pay issues sooner.
In sum, despite whatever role Ortega may have played in any delay that has occurred in this case before or after trial, the Court finds that delay should not count against her in regard to her entitlement to prejudgment interest according to the law. See Hunter,
2. A Mount op Prejudgment Interest
Both parties agree that the proper prejudgment interest rate is 3.25 percent. R. 179 at 8-9; R. 180 at 3 n. 2; R. 184 at 104, 106; see Arroyo v. Volvo Grp. N. Am., LLC,
Neither party addresses the method for calculating prejudgment interest. The actuary obviously applied some method for his interest calculation but it was not explained either'in his report or during his testimony at the hearing. And the Court' cannot adopt Ortega’s method for calculating prejudgment interest in her post-equL table relief hearing brief, which relies to some extent on the concededly inaccurate figures presented by her actuary, because the Court does not fully understand it.
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The total amount of prejudgment interest is $47,511.
H. Back Pay Through The Date Op Judgment
The Board has conceded that, absent the Court ruling in its favor on its failure to mitigate defense, Ortega is entitled to back pay through the date judgment is entered in the case. See R. 139 at 261 (Tr. Transcript 325); see also R. 127 at 52. The parties have provided calculations of back pay through the August 15, 2016 equitable relief hearing. In McKnight v. General Motors Corp.,
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Thus, Ortega’s projected earnings are $95,500 for the 2016-2017 school year, and $38',964 ($97,410 x 4/10
Front Pay
In addition to back pay, Ortega seeks an award of front pay. “[F]ront pay is the functional equivalent of reinstatement because it is a substitute remedy that affords the plaintiff the same benefit (or as close an approximation as possible) as the plaintiff would have received had she been reinstated.” Williams v. Pharmacia, Inc.,
The Board argues the Court should deny Ortega’s request for front pay because the Board has offered to reinstate her. But Ortega has rejected the Board’s offer. The question, therefore, is whether the Board’s rejected offer of reinstatement cuts off Ortega’s right to recover front pay. The same issue was addressed by the Supreme Court in Ford Motor Co. — only in the context of a claim for back pay. The defendant in Ford Motor sought to cut off the accrual of damages while litigation over the plaintiffs’ discrimination in hiring claim was pending by offering the plaintiffs the job that previously was denied to them. The Supreme Court noted that a discrimination plaintiff has a duty to mitigate his damages by using “reasonable diligence in finding other suitable employment.”
The Board is correct (R. 179 at 2-3 n.l) that this case does not raise any issue related to the “unconditional” part of the offer of employment discussed in Ford
The accrual of damages for a discriminatory discharge is not terminated merely because the employee refuses an offer of reinstatement; instead, it is only “an unreasonable refusal ... [which] will preclude recovery of front pay.” Since the employer bears the burden of proof as to the adequacy of an offer of reinstatement, the employer must initially make an offer which is sufficiently specific to support a finding that the tendered employment is comparable to the employee’s prior job. Only after receiving an appropriately detailed offer is the discharged employee requiréd either to accept the offer or to provide specific reasons why it is inadequate.
Thus, under the two-step approach outlined in Graefenhain, the initial question is whether the Board’s offer of reinstatement is for a job that is comparable to Ortega’s prior job. The Board bears the burden of proof on that issue. Id. If the Board’s reinstatement offer is not for a comparable job, the Court need not evaluate Ortega’s reasons'for rejecting it. If the offer is for a comparable job, the Court then goes oh to examine Ortega’s reasons for refusing the offer. Only if the offer is inadequate because it'is not for a comparable job, or, the offer is adequate but Ortega’s reasons for rejecting it are valid, does the Court move on to the task of calculating an award of front pay in lieu of reinstatement.
A. The Board’s Reinstatement Offer
The Board did not offer to reinstate Ortega to her former teaching position at Hedges Elementary. Instead, the Board offered to return Ortega to the reassigned teacher’s pool for four years or until such time as she received an offer for a permanent teaching job. During her period of employment as a reassigned teacher, Ortega would receive the same salary and benefits to which she would have been entitled as a permanent assigned teacher at Hedges. And, while teachers in the reassigned teacher’s pool typically 'switch schools every few weeks to allow them to maximize their contacts within the Board to assist in the search for a permanent assignment,
Whether an offer of reinstatement is adequate to trigger the Ford Motor rule requiring the plaintiff to accept it or forego recovery of further damages “is largely a fact question, which requires weighing the employee’s prior experience and job skills against the terms and conditions of the offer. Since predominantly factual, the trial court’s determination as to the adequacy of a reinstatement offer will be upset on appeal only if clearly erroneous.” Graefenhain,
Under the mitigation doctrine, the employee “need not go into another line of work, accept a demotion, or take a demeaning position.” [Ford Motor,458 U.S. at 231 ,102 S.Ct. 3057 .] An employee “need not ‘seek employment which is not consonant with his particular skills, background, and experience’ or ‘which involves conditions that are substantially more onerous than his previous position.” [Id. at 231 n.16,102 S.Ct. 3057 ].
Graefenhain,
As an initial matter, the Board’s equivocation on whether it has offered to reinstate Ortega at all is enough to give the Court serious pause over whether it needs to even address front pay versus reinstatement, notwithstanding that the Board argues at length on the issue. The Board has stated that Ortega’s “contention that the Board has ‘offer[ed] to reinstate [her] as a reassigned teacher ... for four years,” is incorrect and. that, in fact, “[t]he Board has repeatedly denied four years is an inappropriate period for equitable- relief in this case and has not ‘offered’ .to reinstate Plaintiff. Rather, pursuant to the Court’s request, the Board has described for Plaintiff what reinstatement will entail if the Court orders it.” R. 162 at 4 (emphasis added).
If Ortega does not request reinstatement (which she does not), and the Board has not offered reinstatement (which the Board'contends it has not), then the Court is left wondering why the parties are even talking about anything other than the qúestion of the sufficiency of the evidence on Ortega’s front pay request. The Board’s “offer” apparently is to comply with a court order of reinstatement, but the Board says it can comply only with a court order of reinstatement for a period of four years. And a four-year reinstatement is not a comparable job with “virtually identical” characteristics to Ortega’s previous job at. Hedges. The Board contends four years in the teacher’s pool is an appropriate offer because Ortega requested front pay for only a four year period. But reinstatement
Even apart from the time .limit, the Court rejects the Board’s contention that its offer of reinstatement
Job Responsibilities and Working Conditions. Ortega argues that a reassigned teacher’s job requires moving from' one school to another. Not only does this mean more travel than if she were a permanent teacher assigned to a-particular school, it also means that developing meaningful relationships with colleagues and students is almost impossible because of the “con-stante] rotation] from school to school.” R. 149 at 7. While the Board states that Ortega would be able to opt out of the rotation system, it specifically made this option for one year at a time and “at the discretion of the Board unit which operates the Pool,” Therefore, the Court cannot say Ortega is incorrect that the reinstatement offer would require her to travel to different schools in contrast to her former permanent assignment at a single school.
Ortega also points out that a reassigned teacher does not have control over either the subject she is teaching or her schedule. A regularly appointed teacher’s schedule includes preparation periods, but a reassigned teacher usually has to forfeit those preparation periods to substitute in other classes. R. 161 at 6 (¶9). A reassigned teacher does not have her own classroom, and instead fills in wherever there is a need, even when assigned to one specific school. Often this means teaching a class she might not be qualified to teach, such as math or sciencé, or even a class like physical education that Ortega could not teach because of her disability. It could even mean she is assigned to do nothing more than clerical work. Id. at 5-6 (¶ 8).
Even when assigned to a specific classroom, Ortega argues the job differs significantly from the job of a regularly assigned teacher:
To be a reassigned teacher is to be at the mercy of the students for whose teacher one is temporarily substituting. One does not have control over the emergency lesson plans that are rarely updated nor represent cohesive academic goals. There is no time before the schedule gets, thrown in one[’]s hands to revamp or replenish the emergency lesson plans that usually do not reflect higher order thinking and hence, contribute to classroom chaos. Most of the time a couple of students relay the last concept covered. Many times the substitute is the babysitter until the end of the class period.
Id. at '6 (¶ 9). Ortega also argues that teachers in the pool experience a “lower standard of treatment” because they are not the regularly assigned teacher. According to Ortega, a student who behaves poorly to a substitute suffers little by way of consequences. Id. at 7 (¶ 10). She tells of one instance when she was a reassigned teacher at a high school for three weeks and a student threatened to shoot her on two different occasions if she did not give him an A,
All of these conditions of employment lead to lack of job satisfaction, according to Ortega. “There is not an opportunity for an academic relationship to develop. The on-going rotation of classes and schedules makes it impossible to adequately use pe-dagogies and methods that propel individual] growth.” Id. Ortega also mentions miscellaneous matters related to job conditions, such as her belief, based on personal experience, that the union representative is not as accessible to reassigned teachers as he or she is to a tenured assigned teacher, even though reassigned teachers also pay union dues. Id.
Ortega’s testimony is based on her own personal experience when she was in the reassigned teacher’s pool from 2009 to 2010. The Board did not offer any evidence to contradict her testimony on the above points. The Court therefore has no basis to question the veracity or accuracy of Ortega’s testimony, which the Court found logical and credible. Accordingly, the Court concludes consistent with Ortega’s testimony that the Board’s offer of reinstatement does not provide Ortega with the same conditions of employment she had when she was an assigned, tenured teacher at Hedges.
Opportunities for Advancement. Ortega argues that, even if she is paid the same as a tenured teacher and even if the Board allows her to opt out of the normal rotation involved in the reassigned teacher’s pool, “[t]he perpetually changing schedule of a reassigned teacher does not allow for the same professional growth that assigned tenured teachers experience.” Id. at 7 (¶ 11). “When [she] was [a] reassigned teacher, [she] was not allowed to participate in professional development and espe-dally, outside of the school conferences, trainings or seminars,” because she “was not deemed eligible or worthy to be exposed to new pedagogies, methods, textbooks, or authors.” Id. According to Ortega,
[a] reassigned teacher gets deprived of professional growth. A substitute or reassigned teacher does not get to teach before or after school programs. When [she] was a regularly appointed teacher at -Hedges Elementary, [she] taught reading classes before and after school, oversaw the ballroom dancing classes, and taught summer school. Every summer school application that [she] submitted as a reassigned teacher, the Board made it a point to overlook. If assigned to one school a year, a reassigned teacher is not allowed to participate in a two to three year graduate cohort that represents the latest professional demands and that are subsidized by the Board and scholarships. [Ortega’s] track record shows that [she] [is] frequently taking graduate courses to meet and exceed [her] professional expectations. Being a reassigned teacher would deprive [her] of access to subsidized graduate courses that are deemed necessary for employment.
Id. at 8-9 (¶ 13).
The Board did not offer any evidence to counter this testimony. Therefore, the Court finds that the opportunities for advancement of a reassigned teacher are not the same as a full-time, assigned teacher with tenure.
Status. According to Ortega, a reassigned teacher is a substitute teacher by another name. And the difference in prestige between a tenured teacher and a substitute teacher is readily apparent. Among those differences to which Ortega testified is the attitude of colleagues (id. at 7 (¶ 11) (“colleagues ... perceive a reassigned teacher as... not qualified for the job”)), and the attitude of students and parents (id. at 6 (¶ 8) (“Students would ask ‘why don’t you become a teacher?”’). Ortega claims that “parents and Board employees made the assumption that something was wrong with [her]” because she was in the reassigned teacher’s pool. She was embarrassed by this attitude. Id. (“There I was[,] a substitute with a Bachelor of Science from Northwestern University and a Master in Education from Loyola University with 60 graduate hours, while parents and other CPS teachers also wondered why I was not a tenured assigned teacher,... To be a tenured assigned teacher and be degraded to reassignfed/substitute status was grotesquely humiliating.”).
While it coúld be concluded that Ortega was hypersensitive to what she may only expect but does not know others are thinking, she does cite to a few specific instances in which her abilities apparently were questioned as a result of her status. In addition, the Court has no doubt based on the evidence at trial and the post-trial hearing that the status of a reassignéd teacher who functions as a substitute is less than the status of a permanently assigned teacher. Again, the Board has not offered any contrary evidence.
Despite the Board’s contention that its offer of reinstatement terminated its front pay liability, the Court must conclude that the Board’s offer guarantees Ortega a comparable position in terms of salary and benefits only for a limited period of four years. The Board’s offer to be reinstated into the reassigned teacher’s pool is not an offer of a “substantially equivalent job,” within the meaning of Ford Motor Co. See Pierce,
B. Ortega’s Reasons Foe Rejecting Reinstatement
Given the Court’s finding that the Board’s offer of reinstatement was inadequate, it is unnecessary for the Court to decide whether Ortega’s reasons for rejecting
The Board’s argument derives from the frequently made observation . that reinstatement is the “preferred”, remedy in unlawful employment termination cases. See, e.g., Hicks v. Forest Pres. Dist. of Cook Cnty., Ill.,
Take first the employee’s disinclination to return to working for his employer. If the disinclination is rational and sincere (rather than a maneuver to get front pay), it is a good reason for allowing the employee to elect his alternative remedy of front pay. The employer’s dislike of the employee’s returning is a far more problematic ground for declining to order reinstatement. This would be obvious in a case of racial discrimination in which the employer pleaded hostility to the entire group (blacks, or women, or whomever) to which the plaintiff belonged, as a ground for refusing to order reinstatement. To decline, to order reinstatement in.such a case would reward the employer for the very attitudes that precipitated his violation of the law, by giving him a choice of remedies.
The intermediate case is where the employer dislikes the employee for reasons independent of the latter’s membership in a protected class, and where the feasi-of awarding front pay,in lieu of reinstatement makes the burden on the court of supervising a coerced employment relation between the parties disproportionate to any gains from giving the plaintiff his preferred remedy. In such a case a refusal to order reinstatement would be within the trial judge’s equitable discretion.
Id.
The Board mostly cities to cases involving the “problematic” employer-opposed situation.
The Board argues in favor of its offer of reinstatement by focusing almost exclusively on the fact that the principal who terminated Ortega would not be her supervisor under the Board’s reinstatement offer.
While the Court does not credit Ortega’s testimony that the entire Board was and is likely to continue to conspire against her, the Court has no doubt that Ortega’s testimony is sincere and that her feelings of distrust, lack of confidence, and trauma from her experiences with the Board (apart from her experiences with the principal) are very real. Those feelings were exacerbated by the hundreds of rejections she received of her CPS job applications following her termination from June 2010 through June 2012. The Court also believes that returning to the Board’s employment as a reassigned teacher would indeed, as Ortega testified, feel to her like “insult to injury.” Id. at 10 (¶ 15). Given that Ortega’s feelings are sincere, the only additional question is whether they are a valid legal basis for rejecting the Board’s offer of reinstatement.
The Board argues Ortega’s feelings are not a valid basis for turning down reinstatement because they are not justified by actual, currently existing workplace hostility. But several courts have rejected that argument. See, e.g., Stafford v. Elec. Data Sys. Corp.,
In one case, the Third Circuit rejected the argument that animosity did not prevent reinstatement because the supervisors who discriminated against the plaintiff were no longer employed by the defendant. Feldman v. Philadelphia Hous. Auth.,
In another case, the plaintiff conceded the lack of “ ‘open hostilities’ between himself and former [] co-workers/supervisors,” but argued that any honest and trusting employer-employee relationship he may have had with [his former employer] and its managerial personnel during
The Court does not believe it could order Plaintiff back to work ... even at a different [] facility, and expect him to have any realistic chance of future success. Such a placement would leave both parties “walking on eggshells” ad infini-tum — Plaintiff worrying about how new supervisors would react to having someone working for them who has already sued the company because of prior supervisors’ conduct,' and EDS having to be concerned with the potential of being charged with retaliating against Plaintiff as a result of his having previously sued the company every time Plaintiffs supervisors criticized his work. Reinstatement of Plaintiff to employment at EDS under these circumstances ... “would be a harbinger of disaster and a catalyst to more litigation.”
Id. (internal citations omitted).
In an, attempt to directly address Ortega’s loss of faith in the Board as an employer, the Board’s offer of reinstatement includes a provision that if Ortega believed she was being treated unfairly, she could appeal directly to the Board’s attorney in these post-trial proceedings, who represented to the Court she would personally assume responsibility for resolving the issue. While the Court appreciates the motivation behind this promise, Ortega is entitled to question (as she does) the ability of the Board’s counsel to advocate on her behalf, or, at the very least, to act in a neutral capacity as opposed to in the bests interests of the Board. Moreover, in the end, the Board is suggesting the exact sort of thing that the Seventh Circuit (and the Stafford court, above) recognized was a good reason for denying reinstatement:
If Price is reinstated, every time he is denied credit for a sale, or denied a raise or a bonus, or has a squabble with Hal-verson, he will be tempted to run to the district court for further equitable relief ancillary to the reinstatement order or even for a finding of contempt of the order. There is an analogy to the common law’s refusal to grant specific performance of a contract of employment. A federal district court is not equipped to be the labor relations equivalent of a domestic relations court. Reinstatement in the circumstances that we have described would be justified only if front pay could not be computed.
Id. at 325-26 (emphasis added).
Aside from the practicality of reinstatement in these circumstances, several courts also have recognized that reinstatement may not be viable “because of psychological injuries suffered by the plaintiff.” Abuan v. Level 3 Commc’ns, Inc.,
Like the plaintiffs in the above cases, Ortega’s perceptions about the Board’s post-termination conduct, whether accurate or not, may be sufficiently strong and extreme as to render reinstatement an inadequate remedy, because her perceptions have destroyed her “ability to be an effective member of Defendant’s workforce.” Abuan,
C. Amount Op Front Pay Award
Front pay begins when back pay ends (date of judgment) and continues for whatever period of time will make the plaintiff whole. Barbour v. Merrill,
The plaintiff bears the .initial burden of, providing the district court “with the essential data necessary to calculate a reasonably certain front pay award,” including “the amount of the proposed award, the length of time the plaintiff ex.pects to work for the defendant, and the applicable discount rate.” McKnight II,
Ortega testified that prior to her termination she intended to work as a teacher, and, specifically, for the Board, until retirement age. Although there was
Neither party provides the Court with an exact pension vesting date. It is undisputed, however, that Ortega’s pension would have vested had she not been terminated on or about her 20 year service anniversary date. The evidence showed that Ortega was first employed by the Board on January 28, 1998, so if that date were the date for when the pension vesting period began to run, vesting would occur on January 28, 2018. But the Board represents that when Ortega’s full salary and benefits were terminated in June 2010, she had worked for the Board for eleven years, R. 144 at 8, which means, had she not been terminated, she could have anticipated her pension vesting approximately nine years later or sometime in 2019. Since both parties appear to agree that the correct date ■ is approximately four years after the date of trial (which concluded on October 19, 2015), the Court will use October 31, 2019 as the pension vesting date.
Pursuant to the Court’s discussion on the back pay issue earlier in this opinion, Ortega will be receiving back pay through November 30, 2017. Therefore, if Ortega’s pension-vesting date is chosen for termination of the front pay award, Ortega would be entitled to front pay for a period of 23 months (December 1, 2017 through October 31, 2019).
The Court concludes that Ortega’s request for 23 months in front pay is reasonable and not overly speculative. In Pierce, the Seventh Circuit upheld an award of front pay for a period of ten years based on the plaintiffs testimony that his intention had been to work until his retirement.
Similarly, here, the Court find’s Ortega’s testimony that, given her qualifications, exemplary job performance, and thirteen years of experience as a teacher at Hedges, it was realistic for her to expect to have worked as a teacher with CPS through her retirement age to be credible. The Court credits Ortega’s commitment to teaching, her testimony that she derived much of her self-esteem from her position as - a tenured teacher, and her incentive to continue in her teaching position until her pension would have vested, as justifying using, at a minimum, her pension-vesting date as the date through which front pay should run. In addition, the Court considers other factors, such as the relatively short 23 month period between now and the vesting date,- Ortega’s age, and the longevity of her employment with the Board prior to her termination, as justifying a front pay period through the pension-vesting date.
The Board has taken a two-prong approach in arguing that the front pay award sought by Ortega is unduly speculative. First, the Board argues that Ortega has a reasonable prospect of obtaining comparable employment sooner but for her failure to mitigate her damages. “When a defendant’s front pay objection is predicated upon the same objections regarding mitigation of damages which we have rejected with .regard to back pay, we reject the front pay argument as well.” Donlin,
Second, the Board also argues the opposite, namely, that Ortega would likely have been laid off prior to her pension vesting date. The Board’s present contention that Ortega might have been subject to lay-off
As the Board’s only objections to front pay lack merit, the' Court will award Ortega front pay through October 81, 2019.
Turning to the calculation of the 23 month front pay award; the fact that Ortega’s actuary did not testify regarding the amount of a front pay award does not prevent this Court from using .his testimony to make its own front pay calculation. See Downes,
As discussed previously in this opinion, the Court will add a two percent pay increase for each of the following school years (2018-2019 and 2019-2020), and then subtract Ortega’s required pension contribution of 2 percent to arrive at- an annual salary figure .to use in calculating a gross lost'Wages for. the remaining two years in which front pay will be awarded:
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Thus, Ortega’s gross lost wages for August 2018 through June 2019 is $99,358, and her gross lost wages for August 2019 through October 2019, (three months) is $101,346 x 3/10, or $30,404.
To arrive at a total front pay award, the Court must subtract Ortega’s anticipated actual wages in the applicable time period from her gross lost wages. The Court will start with the actual earnings figure it previously used for the 2016-2017 academic year of $53,212, and apply an additional 2 percent increase for- each year thereafter. This results in $54,276 for Ortega’s actual earnings in the 2017-2018 school year; $55,362 for Ortega’s actual earnings in the 2018-2019 school year; and $56,469 for Ortega’s actual earnings in the 2019-2020 school year.
Applying these calculations leads to the following summary of Ortega’s front pay award:
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Ortega’s total front pay award is $85,653. The Court will apply the present cash value rate suggested by Ortega of 2.5% (to which the Board offers no objection), to arrive at a’ discounted front pay award of $83,512.
Pension Benefits
The Seventh Circuit has said that, “[i]n order to make plaintiffs whole, a "‘discharged employee should be compensated for pension, benefits lost through the wrongful termination.” Graefenhain,
The first option is to award Ortega “whatever would have been paid into the pension fund on [her] behalf.” Id. The Board appears
The second option is for the Court to treat Ortega as a vested employee entitled to receive a pension award based on employment from when she was first hired until damages are settled, and to liquidate her pension benefits as of that date. Loeb,
Ortega seeks an award of pension benefits using this second approach. That is, she seeks an award of the present value of her lost pension benefits incurred as a result of her termination, and she presented the testimony of her actuary to support that award. R. 184 at 110. The formula used by the actuary to arrive at his estimate of Ortega’s lost pension benefits was based on an annual salary figure he calculated according to the governing rules of the Fund. To apply those rules, the actuary had to make certain assumptions about what Ortega’s future salary would have been had she not been terminated. After making those assumptions and applying the formula, the actuary arrived at an average annual salary figure of $93,891. Ortega’s anticipated pension amount is based on that average annual salary figure. R. 184 at 113. According to the actuary, this average salary figure led to a monthly pension benefit amount of $2,927.
The Court rejects the Board’s approach to calculating Ortega’s pension benefits because it does not come close to placing Ortega in the same position.she would have been in had she not been unlawfully terminated. Instead, the Court concludes that the second approach used by Ortega’s actuary is the more appropriate method for calculating Ortega’s lost pension benefits
The actuary calculated the amount of Ortega’s lost pension benefits to ■ be $515,990. He arrived at that figure by assuming Ortega would have started to receive her pension at the age of 62, and used a mortality table to estimate the total period of time for which the monthly pension would have been payable. He then added up each monthly payment and discounted the total to its present value using the discount value of 2.5 percent for the first 20 years and 2.85 percent thereafter. R. 184 at 114. Because the actuary has provided the Court with a reasonable basis to calculate a cash-out pension award, and the Board does not present any evidence to contradict the actuary’s calculations, the Court finds that Ortega has met her burden of proof on establishing an amount for her lost pension benefits. The actuary’s calculations were based on higher salary figures than the ones adopted by the Court in this opinion. Nevertheless, the difference is only slight and those slightly higher figures are more than offset by the fact that the actuary used an earlier settlement date for calculating Ortega’s lost pension benefits than that to which Ortega otherwise would have been entitled.
Even if the Court were to consider the Board’s arguments, it likely would find that they lack merit. On the first issue, social security payments are collateral to pension benefits, and under the collateral source rule the Court does not take those payments into account in determining the proper award of employment discrimination damages. See O’Grady,
On the second issue, Ortega testified she took a cash pay-out from her teacher’s pension fund in the amount of the $60,419 because of the- financial stress she was experiencing after being terminated - from her job. R. 184 at 162-63. The actuary testified that he took into account the cash payout by reducing his net pension loss amount by the amount Ortega received from the payout. Id. at 114-15,
The actuary also testified that if Ortega had not taken the cash payout, her net pension loss would have been reduced to only $169,273 (as opposed to the $515,990 cash out value he was estimating it to actually be). An argument could be made that Ortega should be responsible for the higher pension loss she incurred because she voluntarily cashed in the pension. But the Court is not convinced of the merits of that argument. For example, in Hillmann v. City of Chicago,
In any event, the Board’s argument regarding Ortega’s withdrawal of funds from her teacher’s pension all but ignores the question of whether the Board or Ortega should bear the burden of the higher loss occasioned by- Ortega’s withdrawal of her retirement funds. Instead, the Board’s primary argument is that Ortega could mitigate the loss caused by her withdrawal of the pension funds by relying on the Reciprocal Act. According to the Board, the Reciprocal Act allows a person like Ortega who works for multiple public entities over time to patch together the necessary service credits to vest in her pension though service at more than one agency. R. 184 at 142.
In the first place, the actuary testified that even if Ortega took advantage of the Reciprocal Act, she still would ■ suffer a pension loss in the amount of approximately $169,273. R. 184 at 114-15. Based on the actuary’s testimony, the Court finds that, at the very least, Ortega would be entitled to recover $169,273 in lost pension benefits, not zero pension benefits as the Board argues. More problematic for the Court, however, is the fact that the Board did not actually ¡present any evidence to establish that Ortega satisfied all the technical requirements of the Reciprocal Act to avoid any pension losses other than the $169,273 to which her actuary testified. Thus, the Court cannot say based on the current record that Ortega in fact would be able to reestablish her pension along the lines argued by the Board. While the' Board’s counsel asked Ortega’s actuary questions suggesting Ortega’s losses could be avoided through use of the Reciprocal Act, questions of counsel are not evidence. And the actuary’s testimony in ■ response to those questions confirms the • Reciprocal Act’s application in only the broadest terms. No actual analysis of whether Ortega could in fact satisfy the requirements of the Reciprocal Act was performed. For instance,-the Board could have presented expert testimony of the State Employees Retirement System demonstrating the application of the Reciprocal Act to Ortega’s ■current state pension. This is an issue of mitigation on which the Board bears the burden of proof, as opposed to an issue of damages on which Ortega bears the burden
The only other issue raised by the Board is whether the actuary properly accounted for any pension benefits Ortega will receive from her current job with the state government. In Graefenhain, the Seventh Circuit recognized that “‘[pension] benefits may not be available where an award would make a plaintiff more than whole, such as ... where [the] defendant can prove that the new employer’s pension plan would provide plaintiff with approximately the same benefit he lost due to the defendant’s discriminatory firing.’”
There is some logic to the actuary’s approach. Whether Ortega ultimately becomes entitled to future pension benefits from her current state pension is presently unknown, dependent on whether she remains employed in her current job long enough for that pension to vest. The most recent statement in the record from Ortega’s state pension account dated June 30, 2016 indicates that her state pension will vest with eight years of service, that she had 38 months of service credit as of the June 30, 2016 statement date, and that if her pension ultimately does vest, she will receive a pension in the amount of $1,691 per month. If the Court were to offset the actuary’s $2,927 lost monthly benefit amount with the $1,691 pension benefit Ortega will gain if she becomes entitled to her state pension, then her lost pension benefit from her job with the Board would only be $1,236 per month. The anticipated vesting date for Ortega’s state pension is in approximately 3.5 years (on or about May 1, 2021).
On the one hand, if the Court awards Ortega the full amount of her pension loss to which the actuary testified, it runs the risk of over-compensating Ortega should her state pension ultimately vest. On the other hand, if the Court awards Ortega the amount of her pension loss to which the actuary testified less the amount of her expected state pension, it runs the risk of under-compensating Ortega should her state pension ultimately not vest. Accordingly, the Court will choose a middle course. The Court will reduce Ortega’s lost pension benefit award as testified to by her actuary by the difference between $2,927 and $1,236,
CONCLUSION
Based on the foregoing analysis, the Court awards Ortega the following equitable relief:
(1) Back pay through August 15, 2016 in the amount of $322,788, plus $47,511 in prejudgment interest, plus additional back pay and prejudgment interest through the anticipated date of judgment of November 30, 2017 of $60,398, for a total back pay award of $430,697;
(2) Front pay in the amount of $83,512; and
(3) Lost pension benefits in the amount of $216,716. The Court will retain jurisdiction until August 1, 2021, and if, at that time, no motion has been filed for additional lost pension benefits, the case will be dismissed with prejudice.
The Court will retain jurisdiction until August 1, 2021, and if, at that time, no motion has been filed for additional lost pension benefits, the case will be dismissed with prejudice.
Notes
. The Court directed a verdict against Ortega on her related retaliation claim against the Board.
. Both parties provide back pay calculations through August IS, 2016, the date of the equitable relief hearing. The Court addresses the appropriate ending date for the back pay calculation later in this opinion,
. Ortega originally indicated that, in addition to pension amounts, she would be seeldng compensation for lost health benefits and vacation time. R. 157 at 2-3. But the evidence introduced at the equitable relief- hearing showed that those other benefits would be accounted for in the calculation of lost wages. See R. 184 at 53-54. Ortega has not pursued the issue and the Court therefore assumes she has withdrawn any request previously made for a separate award to reflect these additional benefits.
.Ortega does not ask for a tax-component award to offset the increased tax burden she might incur as a result of receiving a lump sum back pay award. See Equal Emp’t Opportunity Comm’n v. N. Star Hospitality, Inc.,
. Entry of judgment has been delayed following the jury’s verdict by, among other things, the parties’ protracted wrangling over the equitable relief issues in the case. The question of delay is specifically raised by the Board and will be addressed - later in this opinion.
. The Board’s most recent filing seems to suggest no further deductions. See R. 179 at 1. In an earlier filing, however, the Board deducted Ortega’s actual earnings and her- alleged failure to mitigate from the stipulated back pay damages, to arrive at $77,982 as the purported amount to which Ortega was entitled to recover in net lost wages. See R. 155 — 1 (Exhibit A). The Board then added $5,458.74 in lost pension contributions without explaining where that figure came from, for a total suggested back pay award of $83,440.74. Id..; see also R. 163 at 3, ¶ 4b.
. The Board previously represented that the largest amount to which Ortega would be entitled is $215,835 in net lost wages plus $15,108.45 in lost pension benefits for a total of $230,943.45. See R. 163 at 3 n,4. The Board's current calculations for its “worst case’’ scenario are slightly higher than these earlier figures, as "logically they should be because the current numbers represent back pay through a .later date. .
. Prejudgment interest is only available on the lost wages portion of the back pay award. See Williamson v. Handy Button Mach. Co.,
. Exhibit references are to documents that were admitted at the August 15, 2016 equitable relief hearing.
. There is a suggestion in the record, but no proper evidentiary support for it, that Ortega’s employment with the Board continued through mid-March 2012. See R. 166-6 at 4 (stating that Ortega’s participation in the teaching cadre was terminated on August 29, 2011, but that she continued to be employed by the Board as a day-to-day substitute teacher until March 14, 2012). Neither party has sought to clarify the matter any further, and Ortega’s exact ending date does not appear to be relevant to any disputed issue.
. See also Nord v. U. S. Steel Corp.,
. Although the Board originally attempted to argue Ortega’s job search was less than diligent even before June 2012, it later stipulated that Ortega took adequate steps to mitigate her damages prior to that date. See R. 184 at 61.
. Contrary to the Board’s argument that Ortega stopped applying to jobs with the Board entirely after June 19, 2012, Ortega testified at the post-trial equitable relief hearing that she applied to approximately 50 permanent teaching jobs (as opposed to summer teaching positions) with the Board after that date. See R. 184 at 69-71. The Board asks the Court to disregard this testimony' on the ground that it; is inconsistent. with ■ Ortega's trial testimony. But read in context, Ortega's trial testimony was merely about her shift in focüs due to her frustration from not being able to get another teaching job, and her desperation regarding the need to be employed. The Board has not cited to any part of Ortega's trial testimony where Ortega specifically was asked to clarify whether “not investing her time and energy" meant she in fact applied to no jobs with the Board after June 2012. As far as the Court can tell, the first time that question was asked was at the equitable relief hearing where Ortega responded by estimating she had made approximately-50 post-June 2012 applications for teaching jobs with the Board. She testified that she estimat- . ed the number because the Board’s job application system changed after June 2012 to make it no longer possible to track the teaching positions for which she had applied. See R, 184' at 62-69. Ortega testified that at trial she did not volunteer (since she was not asked) information'about post-June 2012 job applications with the Board because, without the records, she had only her testimony to prove them. Id. at 176. And because counsel’s questioning at trial did not specifically raise the mitigation issue regarding Ortega’s post-Jitne 2012 job search efforts, Ortega would not have necessarily been aware of the need to be more precise to rebut the mitigation argument the Board now makes. The Court finds Ortega’s explanation for any perceived inconsistencies between her trial testimony and her equitable relief hearing testimony concerning the number of post-June 2012 job applications she ma'de with the Board to be credible. Nevertheless, for purposes of this discussion, the Court will assume' based on Ortega’s trial testimony that she did not apply to any permanent teaching jobs with the Board after June 19, 2012.
. See, e.g., Hunter v. Allis-Chalmers Corp., Engine Div.,
. But compare Graefenhain,
. See, e.g., Smith v. Am. Serv. Co. of Atlanta,
. See Sprogis v. United Air Lines, Inc.,
. See Smith v. Great Am. Restaurants, Inc.,
.Recently, an employer challenged a district court's holding that the employer was required to prove a reasonable likelihood that the plaintiff could have found a job had her search continued even though the employer successfully had demonstrated that the plaintiff never even looked for one. But the Seventh Circuit rejected that challenge. See Stragapede,
. The original ground for sustaining the objection was that Ortega’s belief regarding why the job offers were rescinded was speculative and/or based on hearsay. See R. 139 at 168— 70, 172 (Tr. Transcript 232-34, 236). Later, Ortega made an offer of proof and the Court disallowed the same testimony on the ground that it was not relevant to the merits issue of whether Ortega was terminated by the Hedges principle for discriminatory reasons. Id. at 255 (Tr. Transcript 319).
. Ortega’s testimony at the equitable relief hearing suggested the job offers were never actually extended, as opposed to extended and then revoked. Ortega testified one of the principals said he was waiting on funding but never contacted her again, and the other principal later explained he could not hire her because she lacked a state endorsement that Ortega claims she originally was told was not needed for the position in question. R. 184 at 66-68.
. It appears the reassigned teacher's pool rriay have 'undergone changes after Ortega participated in it, as Gray testified that teachers spend five months in the pool whereas during trial the evidence was that teachers, including Ortega; were placed in the pool for a full year. In-addition, even..the Board’s attorney seemed to acknowledge a difference between the stigma of being in the reassigned teacher’s pool during the mitigation time period when Ortega was looking for a job and currently. See R. 184 at 189 (asking Ortega whether that stigma had been "reduced” as a result of there now being "thousands of teachers” in the pool looking for jobs because of budget cuts made by the Board in recent years).
. The Board miscites Mattenson v. Baxter Healthcare Corp.,
. Initially, Ortega’s counsel was unprepared to present evidence concerning Ortega's lost pension benefits. The Court directed the parties to try to reach agreement outside of the jury on the pension amounts because those numbers should have been independently ascertainable and not subject to reasonable dispute. See, e.g,, R, 140 at 238 (Tr, Transcript 566) ("If it’s stipulated to, it’s a pretty easy damage analysis for a jury or for me ... [s]o I encourage you for maybe the fifth time today to try and reach an agreement on this.”); see also R. 139 at 136, 263 (Tr. Transcript 200, 327). Later, defense counsel admitted she was unprepared to cross-examine Ortega regarding either the amount of income Ortega had earned from her job with the State of Illinois or what Ortega’s salary would have been had she remained employed by the Board. See R. 139 at 137, 140 (Tr. Transcript 201, 204). Defense counsel stated she was unprepared because she had understood that lost wages would be decided by the Court. But, as the Court reminded counsel, the parties had agreed to have the jury render an advisory back pay verdict, Id. at 137 (Tr. Transcript 201).
. The stipulated amount apparently took into account the off-set to which the Board claimed it was entitled. As it turns out, Ortega was correct about the unemployment compensation benefits. See, e.g., Hathaway v. New Dimension Ctr. for Cosmetic Surgery,
. See, e.g., R. 164 at 2 (Ortega) (it was understood that the stipulated amount was inaccurate and needed to be adjusted for "step up” increases in salary); R. 155 at 6 (Board) (the "understanding” was that the parties’ stipulation "only signified agreement that Ortega lost a certain amount of wages between her layoff and trial” and did not include possible off-set for Ortega’s failure to mitigate).
. The Court also notes the Board has a different counsel in these post-trial proceedings than it had during the trial, and neither party has submitted an attorney affidavit to support their assertion about what was "understood.”
. The stipulated amount was to have replaced the advisory jury verdict on the back pay amount. And the advisory back pay verdict clearly would have accounted for Ortega's actual earnings and the Board's failure to mitigate defense. See R. 154 at 26 (Jury Instruction 26); R. 139 at 136-37 (Tr. Transcript 200-01); R. 119 at 60 (Defendant’s Proposed Jury Instruction No, 31 on mitigation defense); R. 127 at 49-54 (Pretrial Jury Instruction Conference). Therefore, presumably the stipulated back pay amount also accounted for Ortega’s actual earnings and failure to mitigate defense, unless those items were specifically 'excluded when the stipulation was presented to the Court, which they were not. If the parties intended to permit a further credit for the Board's mitigation defense outside of the stipulation, then presumably the parties would have submitted the mitigation issue to the jury for an advisory verdict, as they had intended to do prior to entering into the stipulation. Yet the mitigation issue was not submitted to the jury. This suggests the Board too understood that its mitigation defense was accounted for in the stipulated back pay amount.
. See K. 155-1 (taking stipulated amount of $215,835 and then subtracting from that amount $65,961.50 for Ortega’s failure to mitigate after June 2012, and $71,891.50 ($33,-958 + $37,933.50) for Ortega's actual earnings, to arrive at a total suggested back pay award of $77,982).
. The terms "lane” and “step” refer to the pay structure for union employees set out in the CBAs. "Lanes” are determined based on educational credentials. R. 184 at 40, 47. Employees may move into a higher lane by adding to their educational credentials, as Ortega appears to have done when she obtained a masters degree and skipped from Lane III to Lane V in October 2006. See Def. Ex. Y at page 10. "Steps” are based on years of experience, with each step representing a pay increase within a given lane. R. 184 at 40, 47. The number of steps in each lane varies, Employees generally will move up a step every year. Id. at 40, 47-48. An employee who reaches the highest step in a lane will remain at that salary level indefinitely unless and until he or she obtains the credentials needed to move-into a higher lane. Id. at 48. The highest lane Ortega achieved was Lane V. At all relevant times, the highest possible step within Lane V was Step 16,
. See also Geraty v. Vill. of Antioch,
. While counsel for the Board suggested in her cross-examination of the actuary that teacher salaries were in fact frozen, she appeared later to specify that her reference tó a salary freeze was really a reference to a freeze in lane or step adjustments. See R. 184 at 127. In any event, questions of counsel are not evidence, and since the Board did not submit any -evidence of a salary freeze other than Via’s testimony .concerning the step freeze, only the latter has any evidentiary support in the record.
. "The ADA adopts Title VII’s procedures in requiring a plaintiff to file a timely charge with the EEOC and to receive, in return, a right-to-sue notice from the EEOC before filing suit against an employer. See 42 U.S.C. § 12117(a) (incorporating 42 U.S.C. § 2000e-5); E.E.O.C. v. Harris Chernin, Inc.,
. See R. 184 at 164 (“[She] found every public agency where [she] could file ... at every level. At the local, at the state, at the federal. [She] contacted even ... government attorneys [at the U.S. Justice Department] that [she] knew [were not] ... in a position to interfere, but [she] was just so desperate to get somebody to help [her] out.”).
. The Board cites Martyne v. Parkside Medical Services,
. See Coleman,
. Ortega might have argued for a higher prime rate as either the average prime rate figure, see Washington,
. According to Ortega, she applied a percentage to the total lost wages plus prejudgment interest calculation of her actuary. But the Court cannot determine how Ortega arrived at the $19,153.19 figure on which her percentage calculation is based. At one point she says that figure is the "difference between Plaintiff’s [adjusted] and Defendant’s calculations, R, 178 at 6, and at another point, she says it is the difference between her actuary’s gross amount and that amount "adjusted to reflect the alleged error in step designation." R, 180 at 3. These are two different calculations, and, in any event, neither leads to the $19,153.19 figure. And even apart from the mysterious $19,153.19 figure, the approach of applying a percentage to the actuary's total lost wages plus prejudgment interest calculation is obviously - inaccurate because some portion of the prejudgment interest amount to which the percentage is applied is excess interest to which Ortega is not entitled.
. See Shorter v. Hartford Fin. Servs. Grp., Inc.,
. See also Pace v. Pottawattomie Country Club Inc.,
. Ortega’s annual salary as a teacher is spread out over a ten rather than twelve month period (August through June),
. The Court calculated prejudgment interest on net lost wages for 2016-2017 of $42,288 ($95,500 less $53,212) beginning June 2017 for a 6 month period ($692). It calculated prejudgment interest on net lost wages for 2017-2018 (through November 30, 2017) of $17,254 ($38,964 less $21,710) beginning on August 2017 for a 4 month period, dividing the four months in monthly installments and applying prejudgment interest on the compounded monthly amount through November 30, 2017 ($164).
. The reason why front pay awards are limited in duration is that the plaintiff .is. expected to have found a permanent replacement job by that | date, thereby mitigated his damages . down to zero. Williams,
. Going forward, the Court will drop the artifice of referring to an "offer to comply with a court order of reinstatement!’ and refer simply to the Board’s offer of reinstatement.
. The Board argues Ortega's testimony about a student threatening to shoot her is inadmissible hearsay. R. 162 at 4. But a "threat” constitutes verbal conduct which falls outside the hearsay rule. See United States v. Pate,
. See also Susan K. Grebeldinger, The Role Of Workplace Hostility In Determining Prospective Remedies For Employment Discrimination: A Call For Greater Judicial Discretion In Awarding Front Pay, 1996 U. ILL. L. REV. 319, 320, 362 (1996) (reinstatement "does not always serve the interests of the victims of discrimination, the employers, or society”; front pay can serve the same remedial functions and may better serve to make a plaintiff whole in a given case).
. In addition to Price,
.The Board represents to the Court that the person in question no longer works at Hedges or as a principal, and would not be working at any of the schools on the "high needs” list to which Ortega might be temporarily assigned.
. See R. 161 at 2 (¶ 2) (“In attempting to remedy the situation,' I went through every chain of command including, but not limited to: district, CPS Board, CPS Law Department, CPS Equal Opportunity Compliance Office, CPS Office of the Inspector General, CPS Local School Council and Community Relations, CPS Business Center, Illinois Educational Labor Relations Board, CPS City of Chicago Commission on Human Relations, Illinois Department of Human Relations, Illinois State Board of Education (ISBE) Legislative Committee, ISBE Finance and. Audit Committee, IRS and U.S. Department of Justice.”).
. See R. 161 at 2 (¶ 2) (the Board’s attorneys and agents asserted in numerous filings in administrative proceedings before various state and local agencies to whom she had complained about her termination that she “did not have.the credentials to teach at Hedges” and was "not qualified” for her job).
. Ortega doés not explain what she means by a "dock” in salary, but presumably she was asked to agree to either a salary decrease or a salary freeze.
. Ortega testified that she does not want to leave her current job with the state government because her "skill set is not in question,” she "meet[s] and/ or exceed[s] [her employer’s] expectations, and she does "not feel [she] ha[s] to look over [her] shoulder on a daily basis.” R. 161 at -9 (¶ 15). In some circumstances, similar testimony might be a basis for. saying that the employee voluntarily chose a different career, which would warrant a denial of front pay. But here, Ortega’s choice to pursue a lower paying career must be viewed in light of the, fact that “[defendant's conduct caused [her] shift in career goals,” Baker,
. See also Baker,
. A lengthy award of front pay combined with a liquidated damages award is particularly inappropriate. See Hybert,
. See also Donlin v. Philips Lighting N. Am. Corp.,
. Compare Equal Emp't Opportunity Comm'n v. HBE Corp.,
. It is not contradictory to say that future anticipated lay-offs make the prospect of Ortega currently getting a job with the Board speculative, while at the samé time saying, as the Court does in a moment, that current layoffs do not affect the likelihood that Ortega would have continued to work for the Board had she not been fired. The two situations are different, the first dealing with the effect of lay-offs on Ortega’s current, actual position of not having a permanent teaching job, and the second dealing with the effect of lay-offs on the hypothetical situation Ortega would have been in had she not been terminated.
. Compare Hathaway v. New Dimension Ctr. for Cosmetic Surgery,
. In Downes,
. The Board offers no argument or discussion as to how it calculated Ortega’s lost pension benefits or why it chose the method it did.
. The Public School Teachers’ Pension and Retirement Fund of Chicago ("the Fund”) was created by the Illinois legislature to administer the pension and retirement fund for Chicago public school teachers and other members. The Pension Code provides that revenues for the Fund "shall be comprised of contributions from at least four sources: (1) deductions from teachers’ salaries; (2) employer contributions; (3) appropriations from the State, and (4) earnings on investments.” Bd. of Trustees of Pub. Sch. Teachers’ Pension & Ret. Fund of Chi. v. Bd. of Educ. of City of Chi.,
. Compare Gracia,
. Technically, Ortega would have been entitled to pension benefits as part of both her back pay and front pay awards, which would have made October 31, 2019 the appropriate settlement date for her lost pension benefits. Ortega originally requested that the Court award her both past and future pension benefits using the date on which her pension would have vested as the settlement date. See R. 157 at 1-2. She then retreated from that position and stated she sought an award of lost pension' benefits as part of a back pay award running through the dat.e of judgment only, In her final submission, she has sought lost pension benefits- based on her actuary’s calculations, which assumed- ■ employment only through the August 15, 2016' equitable relief hearing. A later- settlement date such as the date of judgment would have resulted in a longer period of employment on which to base the pension amount resulting in a larger lost pension benefits award. By assuming employment with the Board only through August 15, 2016, Ortega is seeking to recover less than her actual lost pension benefits even insofar as her back pay award is concerned.
. See 40 ILCS 5/20-101 (‘‘Continuity and -preservation of pension' credits. There is established a plan for the continuity and preser- , vation of pension credit, in accordance with the provisions hereof,, in the case of employees transferring employment from one governmental unit to another. The purpose of this plan is to assure full and continuous pension credit for all service in. public employment which is covered by a retirement system.”).
. This amount represents the value of Ortega's state pension resulting from her state employment in the time period in which she is receiving lost pension benefits as part of her back pay award. To the extent that Ortega’s state pension benefits might increase by her continued employment with the state government, those increased pension benefits would be from continued employment with the state in a non-overlapping time period with her pension damages award against the Board. They therefore would not off-set Ortega’s lost pension benefits from her employment with the Board.