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Marshall v. BNSF Railway Co.

United States District Court, D. Kansas

January 10, 2020

Ervin J. Marshall, Jr., Plaintiff,
BNSF Railway Co., Defendant.



         Plaintiff Ervin J. Marshall, Jr. filed this lawsuit against his former employer, BNSF Railway Company, alleging discrimination, retaliation, harassment and constructive discharge in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. After resolving defendant's motion for summary judgment, three claims remain for trial-plaintiff's claim that his August 19, 2016 decision to retire constituted a constructive discharge based on his age; plaintiff's claim that he was subjected to age-based working conditions so intolerable that it resulted in plaintiff's constructive discharge; and plaintiff's claim that his August 19, 2016 decision to retire constituted a constructive discharge in retaliation for his reports of age discrimination and harassment. This matter is presently before the court on the parties' motions in limine (docs. 65, 66). As set forth in more detail below, those motions are granted in part, denied in part, and retained under advisement in part.

         As a threshold matter, several of the issues raised by both parties are unopposed by the other party and, accordingly, each of those issues may be granted as unopposed. Specifically, defendant's Motion in Limine A, F and G and plaintiff's Motion in Limine Nos. 1, 3, 4, 8, 9, 12, 13, 14 and 16. The court turns, then, to those issues that are disputed by the parties.

         Evidence of Lost Wages (Defendant's Motion in Limine B and C)

         Defendant seeks to exclude all evidence of lost wages based on plaintiff's admission that he has made no effort to secure alternative employment since leaving the railroad. It is defendant's burden to establish that plaintiff did not exercise reasonable efforts to mitigate damages. See McClure v. Independent Sch. Dist. No. 16, 228 F.3d 1205, 1214 (10th Cir. 2000). The court cannot conclude on this record, as a matter of law, that plaintiff's failure to seek alternative employment precludes an award of lost wages. Plaintiff indicates that the evidence will demonstrate that any mitigation efforts on his part would have been futile in light of his age, his unique position at the railroad and his seniority level at the railroad, coupled with the fact that he was precluded from seeking employment at any railroad employer by accepting retirement benefits. See Walsh v. Scarsdale Union Free Sch. Dist., 2019 WL 6789581, at *6 (S.D.N.Y. 2019) (collecting cases discussing that a plaintiff's age and seniority level are pertinent factors in whether efforts to find a substantially equivalent position would have been futile). This remains an issue of fact at this juncture.

         Defendant next asserts that, to the extent evidence of lost wages is permitted, the court should offset those wages by the amount that plaintiff has received in retirement benefits.[1]

         Defendant does not contend that such benefits must be deducted from a damages award as a matter of law and, in fact, defendant recognizes that such benefits under some circumstances may be considered a collateral source that should not be deducted. See, e.g., EEOC v. Consol Energy, Inc., 860 F.3d 131, 149-50 (4th Cir. 2017) (discussing circumstances under which employer-provided benefit may be treated as collateral). Nonetheless, defendant argues that an offset is appropriate because plaintiff, in response to an interrogatory, calculated his lost wages by reducing that number by the amount he has received in retirement benefits. According to defendant, plaintiff should be “held” to the calculation that he performed in that response. The court rejects this argument. While plaintiff's calculations in the interrogatory response included a deduction for retirement benefits, plaintiff's claim for lost wages in the pretrial order (filed several months after the interrogatory response) contains no such limitation. Defendant did not object to that claim as inconsistent with the prior interrogatory response or as impermissibly expanding the scope of the claim. The court, then, will not limit plaintiff's claim to his interrogatory response. To the extent plaintiff obtains a verdict and an award of lost wages, defendant may file a post-trial motion asserting that retirement benefits should be offset as a matter of law, if appropriate.[2]

         Evidence of Compensatory Damages and Punitive Damages (Defendant's Motion in Limine C)

         Defendant seeks to exclude any evidence relating to compensatory or punitive damages on the grounds that such damages are unavailable under the ADEA. Plaintiff concedes that such damages are not available for his ADEA discrimination claims, see Bruno v. W. Elec. Co., 829 F.2d 957, 967 (10th Cir. 1987) (punitive damages not available under the ADEA in light of ADEA's liquidated damages provision); Villescas v. Abraham, 311 F.3d 1253, 1259 (10th Cir. 2002) (noting that it is established law in Tenth Circuit that damages for emotional distress are not available under the ADEA), but asserts that, at a minimum, it is an open question whether such damages are available in the context of his ADEA retaliation claim. As explained below, the court grants defendant's motion on this issue. No. evidence of emotional distress or evidence pertaining to punitive damages will be permitted at trial.[3]

         It should be noted that neither party has cited to the court any cases that address whether compensatory and punitive damages are available in an ADEA retaliation case. Defendant cites to one District of Kansas case, Oglesby v. Hy-Vee, Inc., 402 F.Supp.2d 1296 (D. Kan. 2005), in which the court granted summary judgment in favor of the defendant on an ADEA harassment claim because plaintiff suffered no economic loss as a result of the alleged harassment and could not recover compensatory damages on that claim-significantly, a discrimination claim. Oglesby, then, is not helpful to the court on the issue of whether such damages are available in an ADEA retaliation case. Plaintiff, on the other hand, directs the court to Villescas for the principle that the Circuit expressly left open the question of whether emotional distress damages are available in a private sector ADEA retaliation case, see Villescas, 311 F.3d at 1261 (“We, of course, express no opinion with respect to whether compensation for emotional distress would be available in a private sector retaliation claim under § 626(b).”), but otherwise cites only to Title VII retaliation cases based on the tenuous argument that ADEA retaliation claims should be “evaluated the same way.”

         In analyzing this issue, the court begins with the statutory framework of the ADEA. The ADEA prohibits discrimination against an employee based on age and prohibits retaliation against an employee who has complained of age discrimination. 29 U.S.C. § § 623(a), 623(d). While those substantive provisions of the ADEA are patterned on Title VII, the ADEA's remedial provisions are based on part of the Fair Labor Standards Act of 1938 (FLSA), see 29 U.S.C. § 216(b), subject to certain modifications and limitations. See Villescas, 311 F.3d at 1257; 29 U.S.C. § 626(b). In a private-sector ADEA suit, the district court is authorized to afford “such legal or equitable relief as may be appropriate to effectuate the purposes of” the ADEA. Villescas, 311 F.3d at 1257; 29 U.S.C. § 626(b) and (c). That relief may include “without limitation” judgments compelling reinstatement, backpay, payment of wages owed, injunctive relief, declaratory judgment, attorney's fees, and an additional equal amount as liquidated damages in cases of willful violations. 29 U.S.C. § 216(b). In addition, the remedies section of the FLSA, § 216(b), incorporated into the ADEA, at 29 U.S.C. § 626(b), specifically refers to the anti-retaliation provision of the FLSA and states that that any employer who violates that subsection “shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of” that specific section. 29 U.S.C. § 216(b). Villescas, 311 F.3d at 1257. Significantly, these provisions authorizing “legal relief” and the anti-retaliation clause have been part of the ADEA since its inception in 1967. See Goico v. Boeing Co., 347 F.Supp.2d 986, 994-95 (D. Kan. 2004) (citing 29 U.S.C. § 626 (1970)).

         Although the ADEA's authorization to grant “such legal . . . relief as may be appropriate” could have been “broadly interpreted to include tort-type damages for mental anguish and punitive damages, an overwhelming majority of courts-including the Tenth Circuit-have long held that such is not the case.” Id. at 995 (citing Bruno v. Western Elec. Co., 829 F.2d 957, 966 (10th Cir.1987) and other cases reaching the same conclusion). The Seventh Circuit, however, has carved out an exception for ADEA retaliation cases. By way of background, in Travis v. Gary Community Mental Health Center, 921 F.2d 108 (7th Cir. 1990), the Seventh Circuit found that a 1977 amendment to the FLSA (which added the separate remedy provision for retaliation claims using language essentially identical to the “appropriate legal relief” provision found in § 626(b) of the ADEA) changed the FLSA to now permit a plaintiff to recover punitive damages and compensation for emotional distress on an FLSA retaliation claim. In reaching that decision, the Seventh Circuit reasoned:

Appropriate legal relief includes damages. Congress could limit these damages, but the 1977 amendment does away with the old limitations without establishing new ones. Compensation for emotional distress, and punitive damages, are appropriate for intentional torts such as retaliatory discharge.

Id. at 112. In a subsequent case addressing whether the ADEA authorized compensatory and punitive damages in discrimination cases, the Seventh Circuit held that it did not but cited to Travis as controlling authority for an “exception” making such damages available in FLSA and, by extension, ADEA retaliation cases. Moskowitz v. Trustees of Purdue University, 5 F.3d 279, 283-84 (7th Cir. 1993). Moskowitz, however, added no substantive holding or extensive reasoning on the issue and in fact its ...

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