Opinion
No. C97-0023.
February 2, 1999.
ORDER
The plaintiff in this case, James Frazier (Frazier), was a long-term employee of IBP, Inc. (IBP), the defendant in this case. Frazier suffered a work-related injury to his right shoulder. IBP terminated Frazier's employment on February 2, 1995. Frazier filed a lawsuit in this court claiming that the termination of his employment was in violation of the FMLA and in violation of public policy of the State of Iowa. A jury trial was held concerning these issues on November 16 — 18, 1998. At the close of plaintiff's case and again at the end of the trial, IBP moved for judgment as a matter of law with regard to Frazier's FMLA claim. This court reserved ruling on the issue. The jury found that IBP violated both the FMLA and the public policy of the State of Iowa when it terminated Frazier's employment. The jury awarded $80,000 in lost wages and $40,000 in emotional distress damages.
Post-trial motions were filed both by the plaintiff and the defendant in this case. Specifically, the defendant has moved for judgment as a matter of law, or alternatively, a new trial on plaintiff's Family and Medical Leave Act (FMLA) claim, and on plaintiff's claim that his discharge was in violation of public policy (docket number 35). In connection with that motion, the defendant has also asked this court to not award plaintiff liquidated damages or front pay under the FMLA, or to order reinstatement (docket number 35). Finally, the defendant moves for judgment as a matter of law, or alternatively, a new trial on the jury's award of emotional distress damages and back pay to the plaintiff (docket number 35).
By virtue of the jury's finding that the defendant violated the FMLA when it terminated plaintiff's employment, the plaintiff in this case has moved this court to award liquidated damages, attorneys' fees, costs, and equitable relief in the form of front pay (docket numbers 36 and 37). The plaintiff has also moved this court to award prejudgment interest on the jury award based upon the fact that his discharge was in violation of public policy (docket number 37).
Judgment as a Matter of Law
"Judgment as a matter of law may be granted when `a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party.'" Sip-Top, Inc. v. Ecko Group, Inc., 86 F.3d 827, 830 (8th Cir. 1996) (quoting Fed.R.Civ.P. 50(a)(1)). In evaluating a motion for a judgment as a matter of law, the court must view the evidence in a light most favorable to the party that prevailed with the jury. Vetter v. Farmland Indus., Inc., 120 F.3d 749, 752 (8th Cir. 1997) Also, in considering a motion for judgment as a matter of law, a court must:
(1) resolve direct factual conflicts in favor of the nonmovant, (2) assume as true all facts supporting the nonmovant which the evidence tended to prove, (3) give the nonmovant the benefit of all reasonable inferences, and (4) deny the motion if the evidence so viewed would allow reasonable jurors to differ as to the conclusions that could be drawn.Sip-Top, Inc., 86 F.3d at 830, quoting Jones v. Edwards, 770 F.2d 739, 740 (8th Cir. 1985). "A jury verdict is to be overturned `[o]nly when there is a complete absence of probative facts to support the conclusion reached.'" Vetter, 120 F.3d at 752, quoting Ryther v. KARE 11, 108 F.3d 832, 845 (8th Cir. 1997), cert denied, 117 S. Ct. 2510 (1977). However, the nonmoving party is not entitled to the benefit of unreasonable inferences or those "at war with the undisputed facts." Sip-Top, Inc., 86 F.3d at 830, quoting Schneider v. Chrysler Motors Corp., 401 F.2d 549, 555 (8th Cir. 1968). "A reasonable inference is one "which may be drawn from the evidence without resort to speculation." Id., quoting Hauser v. Equifax, Inc., 602 F.2d 811, 814 (8th Cir. 1979). Judgment as a matter of law is appropriate when the record is void of any proof beyond speculation to support the verdict. Id. "In ruling upon a motion for judgment as a matter of law, the court does not weigh or evaluate the evidence nor does it consider the credibility of the witnesses." Rasmussen v. Quaker Chemical Corp., 993 F. Supp. 677, 681 (N.D. Iowa 1998) (citing Stobner v. Lingenfelter, 115 F.3d 576, 578 (8th Cir. 1997).
Motion for A New Trial
The standard for granting a new trial is set forth in Fed.R.Civ.P . 59.
A new trial may be granted to all or any of the parties and on all or part of the issued in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States . . ."
District courts enjoy broad discretion in choosing whether to grant a new trial. Pulla v. Amoco Oil Co, 72 F.3d 648, 656 (8th Cir. 1995). In evaluating a motion for a new trial, a court may balance and weigh the evidence, believe or disbelieve the witnesses, and grant a new trial even where there is substantial evidence to sustain the verdict. White v. Pence, 961 F.2d 776, 780 (8th Cir. 1992). The ultimate test for determining whether to grant a new trial is "whether there ha[s] been a miscarriage of justice." Id.
Plaintiff's FMLA Claim
IBP argues that it is entitled to judgment as a matter of law on Frazier's FMLA claim because Frazier failed to prove that his serious health condition included a period of "incapacity." Frazier argues that a reasonable jury could have determined that the medical evidence established that he was incapacitated for the required period. Frazier points to the medical notes of Drs. Patterson and Pape, and to the fact that he was later placed on work restrictions until September 26, 1995. Frazier claims that he is entitled to rely on post-termination medical evidence to show that he was suffering from a serious health condition at the time he was discharged in violation of the FMLA. Finally, Frazier argues that because IBP did not require medical certification prior to taking medical leave, IBP cannot rely upon Frazier's lack of medical evidence to defeat his claim. This court agrees with IBP.
Under the FMLA, 29 U.S.C. § 2612(a)(1)(D), an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period because of a serious health condition that makes the employee unable to perform the functions of the position of such employee. Any eligible employee who takes leave under § 2612 of this title for the intended purpose of the leave shall be entitled, on return from such leave to be restored by the employer to the position of employment held by the employee when the leave was commenced. 29 U.S.C. § 2614(a)(1)(A).
A "serious health condition" includes a physical condition that involves inpatient care or continuing treatment by a health care provider. 29 U.S.C. § 2611(11). The applicable regulations provide, in relevant part, that a "serious health condition" includes, at a minimum, a period of incapacity of more than three consecutive days together with subsequent multiple treatments or related periods of incapacity. 29 C.F.R. § 825.114(a)(2)(V); Beal v. Rubbermaid Commercial Prods., 972 F. Supp. 1216, 1222 (S.D. Iowa 1997). "For a condition to qualify under the FMLA, there needs to be both a period of incapacity and continuing subsequent treatment by a health care provider." Id. at 1225. See also Martyszenko v. Safeway, Inc., 120 F.3d 120, 123 (8th Cir. 1997) (noting that courts applying the FMLA require a showing of incapacity). Furthermore, under the express terms of the FMLA, "continuing subsequent treatment" must, in fact, be "continuing" in order to qualify for FMLA leave. Id.; 29 U.S.C. § 2611(11)(B). Such treatment, including examinations and evaluations concerning the serious health condition, implicate the FMLA only to the extent that the importance, duration, and frequency of the treatment requires absence from work. Martyszenko, 120 F.3d at 123.
Frazier was seen by Dr. Patterson at Mercy Care North in Cedar Rapids on January 11, 1995 for his right shoulder pain. Dr. Patterson's notes contain the following statement, "[h]e is going to go into work tomorrow." Nowhere in Dr. Patterson's notes does it indicate that Frazier was instructed to stay off of work. Nor does it place any limitations on Frazier, such as weight limits. As a result of this visit, Dr. Patterson referred Frazier to Dr. Pape, an orthopedic surgeon.
Dr. Pape saw Frazier on January 25, 1995. Dr. Pape's notes of the January 25, 1995 visit indicate that Dr. Pape recommended physical therapy and the use of anti-inflammatory drugs, but placed no work-related restrictions on Frazier whatsoever. Furthermore, as Dr. Pape testified to in his deposition, he was under the impression that Frazier was working at the time of his visit, and that Frazier should continue working as long as it was tolerable for him to do so. Dr. Pape further testified that he wanted to see how Frazier did with his prescribed exercise regimen before he decided to take Frazier off of work completely. Finally, Dr. Pape's notes indicate that Frazier was instructed to return to see Dr. Pape in eight weeks. Frazier did not do this. According to Dr. Pape's notes, Frazier forgot his March 22, 1995 appointment and then failed to show up for his rescheduled appointment of March 28, 1995. Dr. Pape did not see Frazier again until June 7, 1995. Dr. Pape's notes of September 26, 1995 indicate that Dr. Pape was releasing Frazier to return to work with weight and range of motion restrictions. The physical therapy notes indicate that Frazier did not start his physical therapy treatment until August 8, 1995 and continued with such treatment through August 30, 1995.
After a review of the record, this court finds it to be void of any medical evidence showing that Frazier was incapacitated for the requisite period. To the contrary, Frazier's treating physician, Dr. Pape, was under the impression that Frazier was working during the period Frazier now claims to have been incapacitated. Furthermore, the record does not show "continuing subsequent treatment" by a health care provider, as required. Frazier saw Dr. Patterson on January 11, 1995, Dr. Pape on January 25, 1995, and then saw no one until June 7, 1995. Such sporadic treatment is not consistent with a serious health condition.
Frazier's argument that his post-termination medical evidence supports the jury's finding that he suffered from a "serious health condition" in January of 1995 must fail as well. Granted, evidence of the employee's medical condition after he is terminated is relevant to whether the employee suffered from a "serious health condition" at the time of his termination. Bauer v. Varity Dayton-Walther Corp., 118 F.3d 1109, 1112 (6th Cir. 1997). However, the medical evidence Frazier contends supports his FMLA claim is for treatment taking place six to eight months or more after his termination and cannot be determinative.
This case is factually distinguishable from the case so heavily relied upon by Frazier, George v. Associated Stationers, 932 F. Supp. 1012 (N.D. Ohio 1996). In George, the plaintiff began feeling ill on December 31, 1994. Id. at 1013. On January 3, 1995 the plaintiff awoke to find his skin covered with vesicles, called his employer and told them that he could not work because he had chicken pox. Id. It was then decided that plaintiff's employment would be terminated. Id. On January 6, 1995 the plaintiff saw a doctor who confirmed that plaintiff was suffering from chicken pox. Id. at 1014. At this time the plaintiff was instructed to remain off of work until all vesicles were dry and to schedule a follow-up appointment. Id. In support of plaintiff's claim that he was terminated in violation of the FMLA, his treating physician submitted an affidavit which stated that plaintiff was sick with chicken pox prior to January 6, 1995 and that had plaintiff presented himself earlier, the doctor at that time would have ordered him to remain off of work until his vesicles dried up, approximately six days. Id.
In Frazier's case, no doctor ordered him to remain off of work. To the contrary, Frazier's doctor believed that Frazier was still working while he was undergoing treatment. Furthermore, in George, the medical evidence relied upon was from an appointment taking place only three days after the plaintiff was terminated. Frazier would have this court rely on medical evidence from appointments taking place several months after he was terminated.
Finally, Frazier argues that IBP has waived its argument about his failure to prove incapacity because IBP did not demand certification of his inability to work before it fired him. A company's failure to require that an employee provide a document from their health care provider stating that the employee is unable to work does not lessen the plaintiff's burden to prove that his serious health condition involved a period of incapacity. The fact that the company did not demand certification of his health condition in February of 1995 did nothing to hinder plaintiff's ability to prove his case here. Plaintiff's physician testified that he thought plaintiff was working during this period of time. This testimony proves that the doctor did not believe plaintiff was incapacitated.
Taking all the evidence in a light most favorable to the plaintiff, there is no legally sufficient evidentiary basis for a reasonable jury to find for Frazier on his FMLA claim. He cannot prove that his health condition involved a period of incapacity. Therefore, judgment as a matter of law on Frazier's FMLA claim is appropriate.
FMLA — Liquidated Damages Attorneys' Fees
As a prevailing party under the FMLA, Frazier has moved this court to award liquidated damages in an amount equal to the jury's back pay award, plus attorneys' fees. In light of this court's finding that IBP is entitled to judgment as a matter of law on Frazier's FMLA claim, Frazier's request for liquidated damages and attorneys' fees is denied as moot.
Plaintiff's Public Policy Discharge Claim
In his complaint, Frazier alleged that IBP terminated his employment for filing a workers' compensation claim, thereby violating the public policy of the state of Iowa. This matter was submitted to the jury. The jury found in favor of Frazier on this claim. IBP contends that the evidence is undisputed that William Lamarr, the individual who made the decision to terminate Frazier, was unaware of Frazier's work-related injury. Lamarr claims that his decision to terminate Frazier was based upon excessive absenteeism. IBP also claims that the fact that Frazier's termination occurred after he filed a workers' compensation claim provides insufficient evidence to support the jury verdict. Therefore, IBP argues that it is entitled to judgment as a matter of law with regard to Frazier's retaliatory discharge claim.
If the discharge of an employee at will is in violation of public policy, then that employee has a cause of action in tort against the employer. Springer v. Weeks Leo Co., Inc., 475 N.W.2d 630 (Iowa 1991). This "public policy" exception to the general employment-at-will doctrine is grounded in the belief that employees should not be fired for reasons that violate public policy. Phipps v. IASA Health Servs. Corp., 558 N.W.2d 198, 202 (Iowa 1997). Discharging an employee because that employee filed a workers' compensation claim is in violation of public policy. Springer, 475 N.W.2d 630; Clarey v. K-Products, Inc., 514 N.W.2d 900, 902 (Iowa 1994).
"To recover damages under these circumstances, a plaintiff must establish (1) engagement in a protected activity, (2) adverse employment action, and (3) a causal connection between the two." Teachout v. Forest City Community Sch. Dist., 584 N.W.2d 296, 299; City of Hampton v. Iowa Civil Rights Comm'n, 554 N.W.2d 532, 535 (Iowa 1996). In proving the causal connection between the protected activity and the adverse action, merely showing that the plaintiff was engaged in the protected activity at the time the adverse action was taken is insufficient. Teachout, 584 N.W.2d at 302; Hulme v. Barrett, 480 N.W.2d 40, 42-43 (Iowa 1992); Phipps, 558 N.W.2d at 203. Evidence in addition to the timing of the adverse action is necessary to establish causation. Id.
Frazier testified that he contacted Brad Meyers of IBP and informed him of his work-related injury on either January 20 or January 23, 1995. This was corroborated by the phone records of Frazier's former wife, Joyce Taylor, and Ms. Taylor's testimony in court. Frazier testified that Meyers was upset to hear that Frazier had sustained a work-related injury. Meyers refuted Frazier's recollection of the facts. Frazier was then terminated from his employment with IBP on February 2, 1995. Lamarr testified that he was unaware that Frazier had sustained a work-related injury when he decided to terminate Frazier's employment. However, it was undisputed that Lamarr's office was very close to Meyers' office and that the two of them spoke numerous times a day. From this a reasonable jury could find that Lamarr, due to his close repeated contact with Meyers was aware of Frazier's work-related injury. Furthermore, Frazier testified to an "unwritten policy" of management employees to be hard on those who had sustained work-related injuries. Frazier also testified that his supervisor, Otis Pettit was aware of the fact that he had fallen while at work in December and responded by saying that he did not want to hear about any work-related injuries. Pettit, who is still an employee of IBP, denied that such an exchange took place.
Viewing this evidence in a light most favorable to Frazier, as is required in evaluation a motion for judgment as a matter of law, this court cannot say that there is a complete absence of probative facts to support the conclusion reached. The question ultimately rested upon a credibility determination, and the jury found Frazier to be more credible than those past and present employees of IBP. Furthermore, none of the inferences that were obviously drawn by the jury were "at war with the undisputed facts." Therefore, the jury's findings on this matter must stand. IBP's motion for a matter of law on Frazier's retaliatory discharge claim is denied. Moreover, this court finds that the verdict rendered by the jury on this issue is not against the weight of the evidence, or a "miscarriage of justice." Shaffer v. Wilkes, 65 F.3d 115 (8th Cir. 1995). IBP's motion for a new trial on this issue is also denied.
Plaintiff's Emotional Distress Damages
After hearing the evidence, the jury awarded Frazier $40,000 in emotional distress damages. IBP claims that this amount should be reduced because Frazier has failed to produce any evidence that he was treated for medical, psychological or emotional problems. Alternatively, IBP argues that it should receive a new trial on this issue as an award of $40,000 in emotional distress damages constitutes a "miscarriage of justice" in this case. Frazier contends that his testimony, along with the testimony of his former wife, in light of the deference due to a jury's emotional distress damages award, support the $40,000 award in this case.
"Emotional distress is a proper element of damage in a wrongful discharge case." Hamer v. Iowa Civil Rights Comm'n, 472 N.W.2d 259, 265 (Iowa 1991). See also Niblo v. Parr Mfg., Inc., 445 N.W.2d 351, 355 (Iowa 1989) (en banc) ("We know of no logical reason why a wrongfully discharged employee's damages should be limited to out-of-pocket loss of income, when the employee also suffers causally connected emotional harm."). Moreover, "[m]edical or other expert evidence is not required to prove emotional distress." Kim v. Nash Finch, Co., 123 F.3d 1046, 1065 (8th Cir. 1997). The testimony of the plaintiff alone can suffice to sustain his burden regarding emotional distress. Id. Furthermore, awards for emotional distress are "highly subjective and the assessment of damages is within the sound discretion of the jury." Jenkins v. McLean Hotels, Inc., 859 F.2d 598, 600 (8th Cir. 1988). "A verdict may not be considered excessive unless there is `plain injustice' or a `monstrous' or `shocking' result." Id., quoting Stafford v. Neurological Med., Inc., 811 F.2d 470, 475 (8th Cir. 1987).
The plaintiff was a long-term employee who worked at the production and supervisory levels. He and his wife testified to substantial emotional distress suffered by him. From this evidence, the jury awarded $40,000 in emotional distress damages. While this award was generous, this court cannot say it is shocking, monstrous, a miscarriage of justice or plainly unjust. The sound discretion of the jury shall not be disturbed. Therefore, IBP's motion for a reduction or for a new trial on the issue of emotional distress damages is denied.
Back Pay
IBP claims that this court erred in failing to properly instruct the jury on the defense of mitigation of damages and that as a result the jury awarded Frazier $80,000 in back pay. IBP now moves for judgment as a matter of law with regard to the jury's back pay award, or alternatively moves for a new trial be awarded on the issue of back pay, arguing that an $80,000 award is a miscarriage of justice. Frazier claims that the jury was properly instructed on the defense of mitigation. Frazier also claims that the $80,000 award is supported by the evidence of Frazier's work history and pay scale.
On the issue of back pay and mitigation of damages, this court instructed the jury as follows, in relevant part:
In order to recover on a claim that plaintiff's discharge violated the public policy of the State of Iowa, plaintiff must prove the following three things:
1. Plaintiff's report of a work-related injury was the determining factor in IBP's decision to terminate plaintiff's employment;
2. The termination of plaintiff's employment was a proximate cause of damage to plaintiff;
3. The nature and extent of such damage. Damages are explained in Instruction No. 5.
Jury Instruction No. 5, Damages, provides, in relevant part:
You are also instructed that the plaintiff has a duty under the law to "mitigate" his damages — that is, to exercise reasonable diligence under the circumstances to minimize his damages. Therefore, if you find by the preponderance of the evidence that the plaintiff failed to seek out or take advantage of an opportunity that was reasonably available to him, you must reduce his damages by the amount he reasonably could have avoided if he had sought out or taken advantage of such an opportunity.
IBP argues that this court should have modeled its instruction on back pay and mitigation of damages on Iowa Civil Jury Instruction No. 3100.1, which includes the following language, "if the Plaintiff has proved all these propositions, then you will consider the defense of mitigation as explained in Instruction No. ___."
In Iowa tort cases, liability against defendants is defeated where plaintiff's comparative fault exceeds 50% of the total fault which was a proximate cause of injury or damage. One element of comparative fault is an unreasonable failure to avoid an injury or to mitigate damages. Code of Iowa § 668.1. Accordingly, the Iowa Uniform Jury Instructions do not permit a finding of liability until comparative fault (including mitigation of damages) has been considered. This is not a comparative fault case that is governed by Code of Iowa, Chapter 668. The court concludes that it appropriately instructed the jury on mitigation of damages and refused to permit plaintiff's failure to mitigate to defeat liability.
This court has examined the instruction proposed by IBP and compared it with the instruction it gave the jury. This court finds that the instruction as given correctly and adequately explains the law concerning public policy discharge, back pay, and mitigation of damages. However, this court also finds that the jury's award of $80,000 in back pay lacks a legally sufficient evidentiary basis to uphold the award in its entirety.
At the time Frazier was discharged from IBP he was making $8.55 per hour working 40 to 45 hours per week. There is insufficient evidence for this court to predict, without resorting to speculation, any pay increases Frazier would have received over the three plus period at issue. Therefore, viewing the evidence in a light most favorable to Frazier and giving him the benefit of all reasonable inferences, and using a 45 hour work week, Frazier was making $21,118.50 per year or $406.13 per week at the time of his discharge. A total of 196 weeks and 4 days elapsed between the time Frazier was wrongfully discharged (February 2, 1995) and the date judgment in this case was entered in his favor. Therefore, Frazier has suffered $79,832.57 in lost wages. However, Frazier himself admitted to making $10,000 caring for his mother after he was discharged from IBP. Subtracting the $10,000 Frazier earned while caring for his mother from the total amount of lost wages, this court finds that Frazier is entitled to, at most, $69,832.57 in back pay rather than $80,000. Therefore, IBP's motion for a new trial on the issue of back pay is denied if within ten days of the date of this order, Frazier consents to a remittitur of the back pay award to $69,832.57. If Frazier refuses to consent to such a remittitur, this court will vacate the judgment and a new trial on the issue of back pay will be granted.
While the court acknowledges IBP's position that the calculation of lost wages should begin on September 26, 1995, the date Frazier was released by his treating physician to return to work, this court has chosen to rely upon Frazier's discharge date. There was evidence that Frazier could have returned to work at IBP on light duty. Therefore, instead of terminating Frazier on February 2, 1995, he could have returned to work on light duty.
This court has analyzed this damage award taking every possible scenario into consideration. While realizing that the benefits lost by Frazier during this time may have accounted for the $10,000 discrepancy, there is no evidence concerning benefits in the record, and this court opts to speculate no further. As stated above, the same is true of Frazier's pay increases. The employment and pay history submitted by the plaintiff provides insufficient evidence to support a finding that Frazier would have received any particular pay increase. Like most large employers, IBP probably grants raises on some unknown but regular basis. There is simply no evidence of this.
Front Pay
Frazier argues that he is should receive three years of front pay, starting on November 18, 1998, the date judgment was entered in his favor in this case, at the rate of $1800 per month. This equals a total of $64,800, reduced to $59,167 present value using a six percent discount rate. IBP claims that Frazier is not entitled to front pay at all. First, IBP claims that there is a low likelihood that Frazier would have continued his employment with IBP. Second, IBP argues that Frazier has failed to mitigate his damages by using reasonable diligence to obtain employment comparable to his at IBP. IBP claims that there were ample employment opportunities available to Frazier during the time for which he is seeking front pay.
In the context of a claim similar to that brought by plaintiff herein, the Iowa Supreme Court has held that future relief in Springer v. Weeks Leo claims is analogous to "front pay" in other employment discrimination claims. Smith v. Smithway Motor Xpress, 464 N.W.2d 282, 688 (Iowa 1990). Front pay is an equitable remedy that may be awarded in lieu of reinstatement where the relationship between the parties has deteriorated to the point that "a productive and amicable working relationship would be impossible." Denesha v. Farmers Ins. Exch., 161 F.3d 491, 501 (8th Cir. 1998) (quoting EEOC v. Prudential Fed. Sav. Loan Ass'n, 763 F.2d 1166, 1172 (10th Cir. 1985). The plaintiff bears the initial burden of proving the basis for a front pay award, after which the burden then shifts to the defendant to prove that an award of front pay is inappropriate. Rasmussen, 993 F. Supp. at 683 (citing Curtis v. Elecs. Space Corp., 113 F.3d 1498, 1503 (8th Cir. 1997). The calculation of the appropriate amount of front pay, which is uncertain by nature, is within the sound discretion of the district court. Hukkanen v. Intern. Union of Operating Eng'rs, 3 F.3d 281, 286 (8th Cir. 1993). While the Eighth Circuit has not provided a set list of factors for a trial court to take into consideration, the Sixth Circuit has provided the following factors: the plaintiff's duty to mitigate; the availability of other employment opportunities; the period within which one may be re-employed through the use of reasonable efforts; the work and life expectancy of the plaintiff; the use of discount tables to determine the present value of future damages; and any other relevant factors. Rasmussen, 993 F. Supp. at 683, citing Roush v. KFC Nat. Management Co., 10 F.3d 392 (6th Cir. 1993), cert denied, 513 U.S. 808 (1994).
Neither party argues that reinstatement is a proper equitable remedy in this case.
This court has considered all factors in this case relevant to the issue of front pay. This court recognizes that Frazier is a man with a shoulder injury, a termination for excessive absenteeism on his employment record, and a seventh grade education. This court also takes into consideration the fact that Frazier drew six months of unemployment compensation beginning in October 1995, during which time he was required to consistently look for work. However, this court also considers that Frazier has had over three and a half years from the time that he was terminated to find comparable work. Aside from the six month period in which Frazier sought work as required in order to be eligible for unemployment, this court notes that Frazier's other attempts to find other employment were far and few between. In fact, the plaintiff made only one job application in the year preceding his March 11, 1998 deposition. His desire to live at his mother's home and care for her for $400 per month, while very admirable, does not satisfy his obligation to seek out and maintain comparable employment which could have been done by now. This court must consider the fact that Frazier lives in Cedar Rapids, Iowa, a city with a good economy and ample job prospects especially for someone with plaintiff's work record, supervisory skills, and longevity at IBP. Finally, Frazier is under 50 years old, which means he has a substantial work and life expectancy remaining. For the aforementioned reasons, this court finds that Frazier is not entitled to front pay.
Interest
Frazier moves this court to award him prejudgment interest commencing from the time he filed his lawsuit in January of 1997 to the date judgment was entered in this case, November 18, 1998, at a rate of 10% pursuant to Iowa Code § 535.3. Frazier also claims that he is entitled to interest on his judgment after November 18, 1998 at the federal rate pursuant to 28 U.S.C. § 1961(a). IBP argues that Frazier is not entitled to prejudgment interest at all. Alternatively, IBP claims that if prejudgment interest is awarded, then the interest rate should be the federal rate rather than the state rate.
"Prejudgment interest is appropriate when the damage award does not otherwise make the plaintiff whole." Smith v. World Ins. Co., 38 F.3d 1456, 1467 (8th Cir. 1994). See generally MacDissi v. Valmont Indus., Inc., 856 F.2d 1054 (8th Cir. 1988) (noting that a generous front pay award could lead the trial court to conclude that award of prejudgment interest was inappropriate); Rasmussen, 993 F. Supp. at 684 (court exercised discretion against an award of prejudgment interest because punitive damages were returned in plaintiff's favor).
This court exercises its discretion in favor of an award of prejudgment interest on Frazier's back pay award. This is necessary as the plaintiff has been deprived of this money for several years. Furthermore, as the judgment entered in Frazier's favor is based upon IBP's violating a public policy of the state of Iowa, the rate of prejudgment interest shall be determined according to the law of the state of Iowa, Iowa Code § 535.3, while the rate of post-judgment interest shall be determined according to 28 U.S.C. § 1961. See Northwest Airlines, Inc. v. Flight Trails, 3 F.3d 292, 297 (8th Cir. 1993) ("Since state law provides the rule of decision in this case, the award of prejudgment interest is governed by state law."). Compare Mansker v. TMG Life Ins. Co., 54 F.3d 1322, 1330 (8th Cir. 1995) (determining the appropriate prejudgment interest rate is a question of federal law where the cause of action is based upon a federal statute).
Costs
Fed.R.Civ.P. 54(d) provides that, "costs shall be allowed as of course to the prevailing party unless the court otherwise directs. . . ." However, exactly which costs will be awarded is a matter left to the discretion of the district court. Poe v. John Deere, 695 F.2d 1103 (8th Cir. 1982); Linneman Const. v. Montana-Dakota Utility Co., 504 F.2d 1365 (8th Cir. 1974). As the prevailing party, Frazier has submitted his bill of costs in this case totaling $2,601.48. IBP takes issue with certain Court Reporter fees and with the fee for copies. Specifically, IBP contends that the court reporter fees incurred in taking the depositions of Otis Pettit, William Lamarr, James Frazier, and Joyce Taylor were not reflective of a fee "of the court reporter for all or any part of the transcript necessarily obtained for use in the case" since none of the testimony in those depositions was actually read into evidence. IBP also contests the $1,158.67 fee for copies as being unsubstantiated and exorbitant. Finally, IBP argued at the hearing held on this matter that the fees incurred for service were excessive because IBP did not attempt to secure a waiver of personal service from the defendants.
The general rule is that costs incurred in taking depositions will be taxed in favor of the prevailing party if the taking of the depositions was reasonably necessary at the time it was taken, even though they may not have been used at trial. Mendenhall and CMI Corp. v. Cedarapids, Inc., No. C86-0076 (N.D. Iowa Feb. 3, 1992) (order reviewing clerk's assessment of costs). Absent introduction into evidence of the deposition, a showing by the prevailing party that the deposition relied upon for cross-examination or impeachment purposes, or a showing that the deposition was useful, "in assisting a resolution of the contested issues," the costs incurred will normally not be allowed unless the prevailing party furnishes evidence that the deposition was reasonably necessary to the development of the case at the time the deposition was taken. The burden is on the party seeking costs to make this showing. This burden, however, must be balanced against the "heavy presumption favoring an award of costs to the prevailing party." Sun Ship, Inc. v. Lehman, 655 F.2d 1311, 1314-15 (D.C. Cir. 1981), citing Chicago Sugar Co. v. American Sugar Refining Co., 176 F.2d 1 (7th Cir. 1949), cert denied, 338 U.S. 948 (1950). Depositions taken "solely for discovery are not taxable as costs, but if the depositions were actually introduced in evidence or used at trial for impeachment purposes, then it is proper to conclude they were necessarily obtained for use in the case." Marcoin, Inc. v. Edwin K. Williams Co., 88 F.R.D. 588, 592 (E.D. Va. 1980).
The depositions of Pettit, Lamarr, Frazier, and Taylor were not introduced into evidence. Nor has the prevailing party in this matter made the necessary showing that these depositions were relied upon for cross-examination, impeachment, or was useful in resolving the contested issues. Therefore, the $899.00 incurred for the taking of these depositions is not taxable to IBP. Frazier's bill of costs is otherwise affirmed.
Upon the foregoing,
IT IS ORDERED
1. Defendant's motion for judgment as a matter of law on plaintiff's FMLA claim is granted.
2. Plaintiff's motion for liquidated damages and attorneys' fees under the FMLA is denied as moot.
3. Defendant's motion for judgment as a matter of law or for a new trial on plaintiff's public policy discharge is denied.
4. Defendant's motion for a new trial with regard to the award of back pay is granted unless plaintiff accepts the remittitur as outlined above.
5. Plaintiff's motion for front pay is denied.
6. Costs in the amount of $1702.48 are taxed to IBP.