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Malone v. Potter


January 15, 2010


The opinion of the court was delivered by: Margaret M. Morrow United States District Judge


This action was tried to a jury on March 3 through 6, 2009. On March 10, 2009, the jury returned a verdict for plaintiff Earnest Malone on his claims for disability discrimination under the Rehabilitation Act and retaliation for protected activity in violation of Title VII. The jury awarded Malone $300,000 in damages for emotional distress. Malone's entitlement to the equitable remedies of back and front pay was tried to the court on July 21, 2009. Having considered the evidence, the arguments of counsel, and the record in this action, the court makes the following findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure.


A. Summary of Relevant Background Evidence Adduced During Jury Trial

1. Malone's claims for disability discrimination under the Rehabilitation Act and retaliation for protected activity, i.e., filing EEOC complaints, were tried to the jury on March 3 through 6, 2009. As respects his Rehabilitation Act claim, Malone argued that his supervisor, Postmaster Tyrone Williams, failed reasonably to accommodate him and subjected him to adverse employment action on the basis of his disability when he changed his work assignments in 2007. Malone also argued that Postmaster McGee subjected him to adverse employment action on the basis of his disability when he transferred him to the Hub City Post Office in 2005. As respects his retaliation claim, Malone argued that his filing of EEOC complaints was a motivating factor behind these actions.*fn1

2. Malone is 53 years old and has a twelfth grade education.*fn2 He began working at the Compton Post Office as a letter carrier in 1978; that remained his official position through 2007.*fn3 Since 1999, he has filed at least ten employment discrimination claims against the Post Office.*fn4

3. Malone injured his right thumb in 1994, and filed a worker's compensation claim as a result. He subsequently underwent an operation in which his right thumb joint was fused to his hand.*fn5

4. Dr. Joan Wright, a hand surgeon, testified at trial regarding Malone's injuries. Wright first saw Malone on October 4, 1996.*fn6 Malone went to see Wright because he was concerned that a 25% impairment rating he had received on a worker's compensation claim was incorrect.*fn7 The percentage rating represents the degree to which the person is limited and is used to calculate a financial settlement.*fn8 Dr. Wright determined that Malone's rating was 31%.*fn9

5. At the time he first saw Dr. Wright, Malone was experiencing pain in his right hand due to the prior operation. The pain primarily occurred when Malone attempted to pinch.*fn10

Because of this pain, Malone had begun to favor his left hand over his right, and was experiencing pain in the left hand as well.*fn11

6. Over the course of Dr. Wright's treatment, Malone began to develop wrist and shoulder pain as well.*fn12 Dr. Wright attributed the shoulder pain to bursitis, an inflammation of the sac that separates the shoulder bone from the muscle.*fn13

7. Dr. Wright treated Malone's problems with physical therapy, anti-inflammatory medication, and splints.*fn14 She also concluded that he should avoid gripping, pinching, pushing, pulling and lifting over five pounds.*fn15 Dr. Wright selected five pounds as a limit because that was the maximum Malone told her he could lift.*fn16

8. Malone did not see Dr. Wright between May 2001 and January 2004.*fn17 In January 2004, he again visited Dr. Wright. He complained that he had been assigned to the Santa Monica Post Office and that the drive was causing him hand and shoulder pain.*fn18 At that point, Dr. Wright prescribed arm braces for Malone.*fn19

9. In January 2004, Malone also began to see a psychologist, Dr. Barbara Ammon, who testified at trial regarding her opinion of Malone's mental health. Ammon diagnosed Malone with anxiety disorder, NOS, and depressive disorder, NOS, in January 2004.*fn20

"NOS" stands for "not otherwise specified" and indicates that the disorders diagnosed by Dr. Ammon did not fit into any specific categort of disorder; Ammon testified that NOS is a "catch-all, left-over diagnosis."*fn21 Dr. Ammon stated that Malone's feelings of anxiety and depression resulted from a perception that he was mistreated at work.*fn22 When she saw him in January 2004, Dr. Ammon placed Malone on medical leave so that he could "regroup emotionally."*fn23 Malone was out of work on Dr. Ammon's orders until May 2004.*fn24

10. Dr. Ammon testified that Malone's emotional condition was stable between January 2004 and July 2006.*fn25 She placed him on medical leave for five months in 2005, however, after he became upset over a confrontation with a Postmaster Deer.*fn26 At this time, Malone experienced difficulty sleeping, suspiciousness, headaches, and gastrointestinal issues.*fn27

11. Malone returned to work in October 2005. During Malone's time at the Post Office, his supervisors had provided him with various limited duty job assignments to fulfill the Post Office's workers' compensation obligations. When he returned in October 2005, he was assigned to work as lobby director at the Hub City Post Office.*fn28

12. As described by Malone, the duties of a lobby director include greeting customers and assisting them to mail items, such as by helping them find the proper forms.*fn29 Malone was capable of performing the position.*fn30 He testified that he liked the job and enjoyed working with the public.*fn31

13. Dr. Ammon placed Malone on leave again for one month in June 2006, because she believed he had become increasingly "agitated" and "hopeless."*fn32

14. In July 2006, Malone returned to the Compton Post Office and was assigned to work as lobby director there.*fn33

15. In September 2006, Dr. Wright diagnosed Malone with carpal tunnel syndrome.*fn34

16. On July 12, 2007, Malone's supervisor, Postmaster Tyrone Williams told him that he could no longer work as lobby director due to a grievance decision in favor of the postal clerk's union.*fn35 Malone was assigned various duties including express mail delivery and custodial work. While he did not attempt the custodial assignment, he tried to deliver the mail and found he was unable to do it. Malone told Williams about his inability to deliver to mail, and Williams gave Malone a choice between delivering mail and going home.*fn36

Thereafter, Malone continue to receive job assignments consisting of various tasks, including mail delivery.*fn37

17. In July 2007, Dr. Wright placed the following restrictions on Malone: no repetitive or forceful bilateral hand gripping, pushing, pulling, lifting over five pounds, or overhead activities; a ten minute break after 50 minutes; no driving more than 30 minutes at a time; no standing more than 30 minutes without a break; and no manual opening of letters or stapling.*fn38 She testified that she added these restrictions because Malone was "having more problems."*fn39 As respects several of the restrictions, Dr. Wright could not recall specifically why she imposed them other than Malone's own description of his limitations.

18. In September 2007, Dr. Wright imposed a new limitation that Malone not do any street delivery of mail.*fn40 On September 14, 2007, he obtained a note from Dr. Wright to this effect.*fn41

19. Williams asked Malone to deliver mail on September 14, and sent Malone home when he refused. The same thing occurred on September 17 and 18.*fn42

20. On September 19, Malone received a new job assignment that included casing and carrying mail.*fn43 The job offer stated that Malone's restrictions would not be honored.*fn44 Malone became upset and walked out of the Post Office. He did not return to work again.*fn45

21. Dr. Ammon testified that Malone experienced nervousness in 2007 due to the changes in his job assignments and uncertainty as to whether there would be something for him to do when he arrived at the job site.*fn46 Because Malone was being given assignments outside his medical restrictions, Dr. Ammon placed him on leave on September 19, 2007.*fn47

Malone decided to file for disability retirement.*fn48 In December 2007, he applied for unemployment benefits.*fn49

B. Relevant Trial Evidence Regarding Malone's Ability to Work

22. Malone's future ability to work is one of main points of dispute between the parties. Malone contends that as a result of the Post Office's actions, he is mentally unable to work. The Post Office contends that Malone is capable of working. The court first considers the physical limitations on Malone's ability to work.

1. Physical Limitations

23. Dr. Wright testified that she did not believe Malone's physical restrictions prevented him from working in the future.*fn50

24. Dr. Thomas Grogan, an orthopedic surgeon testified as a defense expert regarding Malone's physical limitations. Hand injuries makes up 15% of his practice, and he has performed numerous hand surgeries.*fn51

25. Dr. Grogan examined Malone on September 23, 2008; the examination included x-rays of both hands, Malone's shoulders, and neck.*fn52 Dr. Grogan opined that Malone could lift up to twenty pounds.*fn53 He also concluded that Malone did not suffer from carpal tunnel syndrome,*fn54 and found Malone's shoulders to be in normal condition.*fn55

26. Dr. Grogan concluded that Malone's main problems were the improper positioning of the fusion of his right thumb and degeneration of his left joints, particularly the wrist joint.*fn56

The only physical restrictions Dr. Grogan would have placed on Malone were no lifting over ten pounds with one hand and no lifting over twenty pounds with both hands.*fn57 Like Dr. Wright, Dr. Grogan believed that Malone was physically capable of working.*fn58

2. Mental Limitations

27. Dr. Ammon prepared a report for Malone's disability retirement application. In connection with the report, she administered a variety of tests. The "Beck Anxiety Test" measures anxiety based on a patient's self-rating of the severity of various symptoms, such as "My heart races fast" and "I feel unsteady."*fn59 Malone scored a 43; Dr. Ammon stated that this score indicated "a severe level of anxiety."*fn60

28. Dr. Ammon also administered the "Beck Depression Inventory 2," a self-reported test similar to the Beck Anxiety Test. Malone scored 35; Dr. Ammon considered this score "severe" as well.*fn61

29. Finally, Dr. Ammon administered the Psycho Diagnostic Screening Questionnaire, another test based on the patient's responses to various statements. Based on this test, Dr. Ammon concluded that Malone suffered from anxiety and depression, albeit not from any specifically identifiable disorder.*fn62

30. Dr. Ammon found that Malone was "totally disabled" and "not able to return to the labor market."*fn63 She stated that his mental problems were not only "related to work" but also to his financial concerns.*fn64 Dr. Ammon opined that Malone would have difficulty returning to work because he was "suspicious and mistrustful of others."*fn65

31. Dr. Brian Jacks testified as a defense expert. In addition to reviewing the record in the case, Dr. Jacks interviewed Malone to formulate a diagnosis of his mental condition.*fn66

Like Dr. Ammon, he administered the Beck Anxiety Inventory and Depression Inventory as well as the Beck Suicide Scale and Wahler Physical Symptoms Inventory. The latter tests are similar to the Anxiety and Depression inventories in that they are based on the patient's written responses to various statements.*fn67

32. Dr. Jacks also administered the Minnesota Multiphasic Personality Inventory ("MMPI"), which he described as "the best psychological test which we have."*fn68 Unlike the Beck tests, which consist of 21 questions, the MMPI has 567 qeustions.*fn69

33. Dr. Jacks diagnosed Malone as suffering from dysthymia, a chronic low grade depression, characterized by intermittent mood changes or depression that lasts for at least two years.*fn70

Dr. Jacks described dysthymia as "a common form of depression" that does not usually cause "major impairments or difficulties in one's ability to function"; he stated that for patients with the condition, "it seems like . . . there's clouds outside even when it's sunshiny, and you feel that life is not satisfying or making you very happy."*fn71

34. Dr. Jacks testified that Malone's depression began in 1998 or 1999, and has not significantly worsened since that.*fn72 He noted that from 2005 to 2007, there were no increases or changes in Malone's symptoms, the frequency of his treatment or his medication.*fn73

35. Dr. Jacks identified several causes of Malone's depression: health issues and physical problems; excessive suspiciousness and mistrust of others; difficulty following instructions; and financial problems, as well as the present litigation.*fn74

36. Dr. Jacks opined that Malone should be prescribed anti-depressants but that he did not require further psychological counseling.*fn75

37. Dr. Jacks also stated that, in his opinion, although Malone's depression resulted in a lack of energy and difficulty with concentration, it did not impair his ability to work.*fn76 He did state, however, that Malone was not able to work for the month of September 2007.*fn77

38. Dr. Jacks was critical of Dr. Ammon's opinions. He noted that she did not review Malone's complete history, and did not consider whether his health issues were a cause of his depression.*fn78

39. After evaluating the testimony of both experts, the court finds that Malone suffers from mild depression that does not prevent him from working. In this regard, the court does not find Dr. Ammon's testimony that Malone is "totally disabled" due to psychological conditions credible. When asked to explain this opinion, Dr. Ammon stated in conclusory fashion that she did not believe Malone could ever return to the Postal Service, and that she believe he was not "at this time" able to return to the labor market. She offered no specific reasons or analysis supporting this conclusion.*fn79 In addition, the court accords Dr. Jacks' testimony greater weight based his credentials, the thoroughness of his testing, and his review of prior medical records. In particular, Dr. Jacks administered the MMPI test, which revealed that Malone had significant worries and concerns about his physical problems.*fn80 He also reviewed medical records indicating, contrary to Dr. Ammon's testimony, that Malone had sleep apnea, which contributed to his depression because he was unable to achieve a deep level of sleep.*fn81 Consequently, the court credits Dr. Jacks' testimony that there have been no significant changes in Malone's depression since 2005, and that Malone is presently able to work despite his dysthimia or low grade depression.

C. Testimony At Court Trial Regarding Malone's Efforts to Find Employment

40. Malone testified that he does not consider himself mentally prepared to return to the work force.*fn82 The court does not consider Malone's self-diagnosis an accurate indicator of his psychological capability to work.

41. Malone did not submit any written applications, cover letters or resumes to employers after leaving the Post Office, nor did he prepare a resume.*fn83 He did not attend any job interviews.*fn84 Malone testified that during the time he was receiving unemployment benefits, he did not believe he was capable of working and would not have accepted a job if one had been offered to him.*fn85

42. Malone's disability retirement became effective August 2008.*fn86 There was no evidence that Malone's disability retirement was approved based on his mental condition rather than his physical disabilities.

43. Malone has not made any efforts to find employment since he began receiving federal disability retirement benefits.*fn87

D. Testimony of Defendant's Expert Jerald Udinsky

44. Dr. Jerald Udinsky testified as a defense expert during the bench trial. Udinsky described himself as a "rehabilitation economist," a position he characterized as "an economist who is specialized in labor markets, employment, wages, and unemployment within labor markets."*fn88 He claimed to have a particular specialty in "the labor market activity of people with injuries . . . who have had to change jobs."*fn89

45. To form an opinion about the availability of employment for Malone, Udinsky considered Malone's employment record, worker's compensation records, unemployment records, and the depositions of Malone, Dr. Ammon and Dr. Wright; he also spoke with Dr. Grogan.*fn90

In addition, Udinsky conducted what he described as a "labor market survey" that focused in particular on the types of jobs for which Malone applied while receiving unemployment insurance.*fn91 The positions Udinsky considered were insurance salesman, mail room supervisor, receptionist, customer service representative and security guard. His labor market survey included calling companies by telephone and inquiring if jobs were available.*fn92 Udinsky asked the employers if the jobs required lifting more than 15 pounds.*fn93

46. Udinsky did not, however, consider Malone's educational background, an omission that considerably undermines the credibility of his opinions.*fn94 Udinsky justified this omission on by noting that Malone had "a considerable amount of experience" and could take classes to learn skills he lacked.*fn95

47. Udinsky's analysis also did not take Malone's psychological issues into account.*fn96 He simply assumed that Malone was capable of working.*fn97

48. Udinsky expressed a variety of opinions regarding what he considered a "normal and ordinary job search."*fn98 The court does not discuss these here, as it can conclude based on Malone's testimony, standing alone, that Malone did not undertake a reasonably diligent effort to obtain employment. Malone testified that he was simply going through the "protocols," that is, making the minimum effort necessary to continue to receive unemployment insurance and that he had no intention of working or accepting a position if one was offered.*fn99

49. Udinsky testified that he believed Malone could have found employment as a mail room supervisor because he "had skills in shipping and receiving."*fn100 He also testified that Malone could manage a store such as "Mailboxes R Us."*fn101 The court does not find this opinion credible, given that Malone had no supervisory experience during his thirty years of work at the Post Office.*fn102

50. Udinsky opined that Malone could work as a receptionist.*fn103 As Udinsky reached this opinion without considering that Malone had been diagnosed with carpal tunnel syndrome, the court does not find it credible.

51. Because Malone had mentioned looking for work as an insurance salesman at his deposition, Udinsky also considered the field of insurance sales.*fn104 He believed that Malone's disabilities as well as his "background . . . in a work environment where there's physical labor involved" gave Malone "experience when it comes to selling disability and liability insurance."*fn105 On direct examination, Udinsky testified that he did not consider Malone's level of education in evaluating his ability to succeed as an insurance salesman.*fn106

According to Udinksy, Malone could pass the licensing exam to work in insurance sales "based on the fact that he had been working at the post office for some time."*fn107 Despite this testimony, on cross examination, when asked about the basis for his opinion that Malone could pass the exam, Udinsky cited the fact that Malone had a high school diploma; apparently, he had consulted Malone's deposition during the recess to discover this fact.*fn108 Udinsky's testimony regarding Malone's ability to find work in insurance sales considerably undermined his credibility.

52. Udinsky also testified that he believed Malone could find work as a security guard.*fn109 He stated that he had selected this position to research because Dr. Wright had stated that it was compatible with Malone's physical restrictions.*fn110 He acknowledged, however, that some training would be required,*fn111 as it does not appear to be a comparable position to the lobby director position Malone performed at the Post Office.

53. Udinsky also testified regarding Malone's ability to find work as a customer service representative. Of all the positions discussed by Udinsky, this is the only one that the court finds both to be compatible with Malone's education and experience. It is, moreover, comparable to the lobby director position Malone held at the Post Office. Based on Malone's description, the lobby director job essentially resembles a customer service position.

54. Udinsky testified that the median income for customer service representatives was $31,873 in 2007. He testified in 2007-08, this figure increased 1.74 percent.*fn112

55. Udinsky calculated that if Malone had obtained work as a customer service representative on June 19, 2008, he would have earned $33,973 through July 20, 2009, the date of the court trial.*fn113 This calculation included Malone's earnings from disability retirement. It assumed that he would find a job nine months after leaving the post office and that his salary would begin at the 25th percentile. Udinsky calculated that if Malone continued working as a customer service representative through retirement, his future earnings would be $360,729. In this regard, he assume that Malone would reach the 75th salary percentile after three years of work.*fn114 This translates to a 20 percent salary increase in each of the first three years, and an increase consistent with inflation thereafter.*fn115 Udinsky did not cite any data to support his assumption that Malone would receive a yearly twenty percent salary increase as a customer service representative. Rather, he apparently based this assumption on his perception that Malone was "a mature person [and] a capable person."*fn116

It is not entirely clear how Udinsky formed this opinion of Malone.

56. Udinsky explained that Malone's receipt of disability retirement did not prevent him from working and that, as long as he earned less than 80 percent of his prior salary at the post office, he would continue to receive payments.*fn117

57. Malone's expert, Anand Khemlani, a certified public accountant, criticized Udinsky's conclusions with respect to the customer service representative, receptionist, and security guard positions.*fn118 He argued that Udinsky applied a one hundred percent probability that Malone would be able to obtain these positions, and did not factor in educational licensing requirements, economic conditions, and Malone's lack of personal drive.*fn119 The value of Khemlani's criticism was limited, however, as he was unable to identify a specific probability Udinsky should have utilized to account for the factors he identified.*fn120

E. Stipulated Facts Regarding Malone's Salary and Benefits

58. Malone would have earned a total of $111,404 in salary and benefits had he continued to work at the Post Office from September 19, 2007 through July 20, 2009.*fn121

59. Malone received a total of $45,770 in federal disability retirement benefits through July 20, 2009.*fn122

60. Had Malone worked for the Post Office through April 21, 2018, he would have earned $472,566 in salary and benefits reduced to present cash value. He would have earned $323,754 in retirement benefits, reduced to present cash value, from April 2018 through September 4, 2034, the end of his statistical life expectancy.*fn123 For the period from July 21, 2009 to September 4, 2034, Malone would receive a total of $460,152 in disability retirement benefits.*fn124 While the parties stipulated to these figures, the court does not find them particularly useful, as they appear to reflect a misunderstanding of the nature of the front pay remedy.

61. Any findings of fact that are deemed to be conclusions of law are incorporated herein as such.


A. Legal Standards Governing Back Pay, Front Pay & Reinstatement

62. "Title VII of the Civil Rights Act of 1964 permits courts to grant equitable remedies to employees who have been impermissibly discriminated against by employers with fifteen or more employees. See 42 U.S.C. § 2000e-5(g) (1994). The relevant remedies include reinstatement and awards of back pay and front pay."*fn125 Caudle v. Bristow Optical Co., Inc., 224 F.3d 1014, 1020 (9th Cir. 2000). "The district court has wide discretion in awarding remedies to make a Title VII plaintiff whole." Odima v. Westin Tucson Hotel, 53 F.3d 1484, 1495 (9th Cir. 1995) (citing Edwards v. Occidental Chem. Corp., 892 F.2d 1442, 1448 (9th Cir.1990)).

63. "Back pay is calculated by subtracting the actual wages a discharged employee earned subsequent to termination from the amount the employee would have earned absent the employer's discriminatory conduct." E.E.O.C. v. Sunfire Glass, Inc., No. CV-08-1784-PHX-LOA, 2009 WL 976495, *11 (D. Ariz. Apr. 10, 2009). Back pay is typically computed "from the date of the discriminatory act until the date of final judgment." Thorne v. City of El Segundo, 802 F.2d 1131, 1136 (9th Cir. 1986). Back pay awards "advance 'Congress' intent to make "persons whole for injuries suffered through past discrimination."'" Caudle, 224 F.3d at 1020 (quoting Loeffler v. Frank, 486 U.S. 549, 558 (1988) (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975)). Accordingly, "once a court finds unlawful discrimination, backpay should be denied only if denial 'would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination.'" Thorne, 802 F.2d at 1137 (quoting Albemarle Paper, 422 U.S. at 421)); see also Caudle, 224 F.3d at 1202; Odima, 53 F.3d at 1495.

64. "Front pay is the term used to describe damages paid as [prospective] compensation for training or relocating to another position. An award of front pay is made in lieu of reinstatement when the antagonism between employer and employee is so great that reinstatement is not appropriate." Caudle, 224 F.3d at 1020 (quoting Fadhl v. City and County of San Francisco, 741 F.2d 1163, 1167 (9th Cir.1984), overruled on other grounds, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (alteration original)).

65. "[R]einstatement, when it is feasible, is 'the preferred remedy' in a discrimination suit." Gotthardt v. National R.R. Passenger Corp., 191 F.3d 1148, 1156 (9th Cir. 1999) (quoting Cassino v. Reichhold Chems., Inc., 817 F.2d 1338, 1346 (9th Cir. 1987)). Nonetheless, "[a]wards of front pay are appropriate when it is impossible to reinstate the plaintiff or when it would be inappropriate due to excessive hostility or antagonism between the parties." Thorne, 802 F.2d at 1137 (citing Fadhl, 741 F.2d at 1167).

66. A plaintiff seeking an award of back pay or front pay has a duty to mitigate damages by making reasonably diligent efforts to obtain alternative employment. Caudle, 224 F.3d at 1020 (citing 42 U.S.C. § 2000e-5(g)(1)). In regard to front pay, the Ninth Circuit has observed:

"A court awarding front pay should consider a plaintiff's ability to mitigate her damages by finding other employment in the future. '[F]ront pay awards . . . must be reduced by the amount plaintiff could earn using reasonable mitigation efforts. . . . Thus, front pay is intended to be temporary in nature. An award of front pay does not contemplate that a plaintiff will sit idly by and be compensated for doing nothing.' Cassino, 817 F.2d at 1347 (citations and quotations omitted). 'Because of the potential for windfall, [front pay's] use must be tempered.' Duke v. Uniroyal, Inc., 928 F.2d 1413, 1424 (4th Cir. 1991)." Gotthardt, 191 F.3d at 1157.

67. Defendant bears the burden of establishing plaintiff's failure to mitigate. Odima, 53 F.3d at 1497. To satisfy this burden, defendant must prove that "during the time in question there were substantially equivalent jobs available, which [the plaintiff] could have obtained, and that [the plaintiff] failed to use reasonable diligence in seeking one." Id. (quoting EEOC v. Farmer Bros. Co., 31 F.3d 891, 906 (9th Cir.1994) (alteration and emphasis original)); see also Sias v. City Demonstration Agency, 588 F.2d 692, 696 (9th Cir. 1978) ("To satisfy this burden, defendant must establish (1) that the damage suffered by plaintiff could have been avoided, i.e. that there were suitable positions available which plaintiff could have discovered and for which he was qualified; and (2) that plaintiff failed to use reasonable care and diligence in seeking such a position").

68. On the other hand, the Ninth Circuit has held that back pay and front pay are not warranted where a plaintiff voluntarily withdraws from the workforce. Caudle, 224 F.3d 1020-2; see also Thorne, 802 F.2d at 1136 ("Our court has recognized, however, that the backpay period may terminate earlier if the plaintiff has voluntarily removed herself from the job market," citing Sangster v. United Airlines, Inc., 633 F.2d 864, 868 (1980)).

B. Calculation of Back Pay

69. The difference between the amount Malone would have earned at the Post Office through the date of judgment and the federal disability benefits he received through judgment is $78,022.95.*fn126 This is the amount of back pay to which Malone is entitled before further mitigation is considered.

70. As noted above, the court has found that Malone did not exercise reasonably diligent efforts to find alternative employment at any time after leaving the Post Office. Even discounting Udinksy's opinions regarding what constitutes a reasonable job search, Malone's own testimony is sufficient to establish that he did not make a reasonable effort to find work. During the period Malone was receiving unemployment, before he began to receive disability payments, he did not prepare a resume, mail applications, or attend interviews. While he filled out the forms necessary to receive unemployment benefits,*fn127 and made certain inquiries about the jobs he listed on the form, Malone's testimony made it clear that he did not really attempt to find work. Indeed, his testimony that he would not have accepted a job during the period he was receiving unemployment underscores the fact that he did not make any real effort to locate work. After Malone began receiving disability payments, he ceased all efforts to find work. Based on these facts, the court concludes that the Post Office satisfied the second prong of the showing it must make to establish that Malone did not reasonably attempt to mitigate damages. The Post Office must also establish, however, that comparable jobs were available. Odima, 53 F.3d at 1497.

71. While the Post Office offered Udinsky as an expert to satisfy this aspect of its burden, his testimony had substantial credibility problems. Udinsky opined that Malone could obtain positions that required specific skills and experience without fully considering Malone's background. Thus, the court must reject the majority of Udinsky's testimony. It credits, however, Udinsky's conclusion that Malone could have found work in the customer service field. Unlike other opinions Udinshy offered, this opinion was corroborated by Malone's own testimony that he enjoyed and could perform the lobby director position. Further, neither Dr. Wright nor Dr. Grogan testified that Malone's physical limitations would prevent him from succeeding in a customer service position. The court therefore concludes that the Post Office has carried its burden of establishing that it is more likely than not that Malone could have found a customer service position, and that such a position would have been substantially similar to his previous lobby director position. As to the time within which Malone could have found such a position, the court finds Udinsky's estimate that he would have had to undertake a nine-month job search reasonable. Udinsky testified that if Malone had obtained a customer service position on June 19, 2008, he would have earned $33,973 through July 20, 2009. This equals $86.01/day ($33,973/395 days). Accordingly, the court finds that, had Malone made reasonable efforts to mitigate his damages, he would earned $49,282.78 through the date of judgment. Thus, the court concludes that Malone is entitled to $28,740.17 in back pay.

72. The court cannot accept the Post Office's argument that, because Malone did not make reasonable efforts to find work, he is not entitled to economic damages. The Ninth Circuit in Odima expressed disapproval of the rule that "[i]f an employer proves that a plaintiff failed to look for work, the employer is not required to prove that jobs were available." Id. It observed that "[defendant] notably cites no Ninth Circuit authority for this purported exception to the general rule, and we can find none."*fn128 Although the Post Office has carried its burden of proving that customer service jobs were available to Malone, it has not established that jobs were available that would have paid him the equivalent of his Post Office salary. Malone is entitled to an award of back pay equal to the difference between what he would have earned at the Post Office absent its illegal conduct and what he could have earned had he made reasonable mitigation efforts. See Loeffler, 486 U.S. at 558 (purpose of back pay is to make plaintiff whole).

73. The Post Office's argument to the contrary relies on Caudle, in which the Ninth Circuit held that plaintiff's "withdrawal from the workforce in September 1995 barred her recovery [of lost wages] under Title VII as of that date because the withdrawal was voluntary." 224 F.3d at 1020. In Caudle, plaintiff was terminated in March 1995, when she was eight months pregnant. She gave birth in April 1995 and began seeking employment without success. Id. at 1019. In September 1995, plaintiff "elected to stay at home with her child for a period that she originally anticipated would last approximately three years." Id. The Court explained:

"The [district] court apparently found Caudle's decision to withdraw from the workforce [was] not only uncompelled by her situation but also unaffected by the defendant's discriminatory behavior. In holding that the voluntariness of Caudle's withdrawal precluded her recovery for lost pay during the ensuing period, the district court correctly focused on the general objective underlying Title VII remedies and the plaintiff's duty to mitigate damages generally:

ensuring that the plaintiff is made whole. Caudle never alleged (and there is no reason otherwise to believe) that her decision to withdraw from the workforce in September 1995 was in any way affected by Bristow's discriminatory termination of her employment. She therefore failed to show that her diminished income after that date was not 'voluntary' and was thus an injury for which she would need to be 'made whole' by Bristow. Absent any injury, an award of back pay or front pay is plainly unwarranted under 42 U.S.C. § 2000e-5(g)(1). " Id. at 1020-21 (alterations added and footnote omitted).

74. Malone's situation differs from Caudle's. The district court found that Caudle left the labor market to care for her child, a decision unrelated to her prior termination. Malone, by contrast, applied for disability retirement only after the Post Office failed to provide the type of reasonable accommodation to which the jury found he was entitled. Malone's situation resembles that of the plaintiff in Szedlock v. Tenent, 139 F.Supp.2d 725 (E.D. Va. 2001). There, plaintiff left her employment at the CIA and applied for medical disability retirement after the CIA failed to reasonably accommodate her. Id. at 728-29. Defendant advanced essentially the same argument put forth by the Post Office here. It contended that "neither a back pay nor a front pay award is warranted because defendant's unlawful conduct -- the failure to provide reasonable accommodations -- did not result in plaintiff's discharge and claim for lost wages. Instead, any lost wages were the result of plaintiff's voluntary pursuit of a medical disability retirement." Id. at 733. The court rejected the argument:

"Defendant's argument fails ultimately because plaintiff's pursuit and acceptance of the [disability retirement] was the direct result of defendant's failure to accommodate her disability. Simply put, when defendant failed, over an extended period of time, to accommodate plaintiff's disability . . . and when defendant thereafter concluded that there were no positions in the CIA, at plaintiff's experience level, in which she could perform with or without a reasonable accommodation -- she was left with no option but to pursue and accept the [disability retirement]. It follows, then, that her lost wages are a direct result of defendant's unlawful conduct. Thus, it was defendant's failure to provide plaintiff with the reasonable accommodations she sought -- to which the jury found she was legally entitled -- that compelled plaintiff to seek and accept the [disability retirement]. In a real sense, plaintiff's claim for lost wages is the result of discrimination, and she is thus entitled to some equitable relief in the form of back pay or front pay to place her in the position she would have enjoyed absent discrimination. See Albemarle, 422 U.S. at 421." Id.

75. The court similarly cannot accept Malone's argument that he had no obligation to mitigate damages because the Post Office's conduct caused him mental distress that rendered him unable to work. Malone cites several cases for the proposition that under Title VII, "an employee who cannot mitigate damages because of the unlawful actions of the employer can still receive back pay." See Johnson v. Spencer Press of Maine, Inc., 364 F.3d 368, 384 (1st Cir. 2004); see also Lathem v. Department of Children and Youth Services, 172 F.3d 786, 794 (11th Cir. 1999) ("[A] Title VII claimant is entitled to an award of back pay where the defendant's discriminatory conduct caused the disability"); Durham Life Ins. Co. v. Evans, 166 F.3d 139, 157 (3d Cir.1999) ("Because [the employer's] conduct affirmatively impaired [the employee's] ability to mitigate her damages, it would be inequitable to reduce her back pay award in this case"). This principle has no application in the present case, because Malone's psychological capability to work is a factual question, and the court has found that he is mentally capable of working. As Malone's psychological issues do not prevent him from working, the court need not consider the degree to which such conditions were "caused" by the Post Office. Malone argues that the jury's award of emotional distress damages indicates that it credited Dr. Ammon's testimony that Malone would be unable to work in the future. Malone's psychological capacity to work in the future was simply not before the jury, and the court does not find Dr. Ammon's testimony regarding Malone's ability to work credible.*fn129

76. Although neither party has briefed the issue, "[a]n award of prejudgment interest on a back pay award is appropriate." Domingo v. New England Fish Co., 727 F.2d 1429, 1446 (9th Cir. 1984). The interest rate used to calculate prejudgment interest is within the discretion of the trial judge. W. Pac. Fisheries, Inv. v. SS President Grant, 730 F.2d 1280, 1288 (9th Cir. 1984). This discretion must be exercised with a view to the fact that prejudgment interest is an element of compensation, not a penalty. Id.; Jung v. Potter, No. CV 04-429-PHX-MHM, 2008 WL 2620905, *6 (D.Ariz. July 1, 2008). In calculating prejudgment interest, the court will use the weekly average Treasury Bill rate, see id., see also Blankenship v. Liberty Life Assur. Co. of Boston, 486 F.3d 620, 628 (9th Cir. 2007) ("Generally, 'the interest rate prescribed for post-judgment interest under 28 U.S.C. § 1961 is appropriate for fixing the rate of pre-judgment interest unless the trial judge finds, on substantial evidence, that the equities of that particular case require a different rate,'" quoting Grosz-Salomon v. Paul Revere Life Ins. Co., 237 F.3d 1154, 1163-64 (9th Cir. 2001)), and calculate interest at the date of judgment. On January 15, 2010, the applicable rate was 0.41%, yielding prejudgment interest of $271.50.

C. Availability of Reinstatement

77. As noted, "reinstatement, when it is feasible, is 'the preferred remedy' in a discrimination suit." Gotthardt, 191 F.3d at 1156. The court has seriously considered the possibility of awarding reinstatement. Considering Malone's testimony that working at the Post Office is the only job that interests him, and his unwillingness to look for work elsewhere, the court believes that reinstatement has considerable appeal as an appropriate equitable remedy. The court does not believe, despite Malone's contention to the contrary, that this is a case where hostility between the parties would prohibit reinstatement. During the ten years prior to this litigation, Malone filed at least ten employment discrimination claims against the Post Office, indicating that the parties had an ability to co-exist as employer-employee while at the same time being legal antagonists. While this case may have generated some additional hostility between the parties, the court does not believe, considering their past history, that the hostility is so excessive as to foreclose reinstatement.

78. The court concludes that reinstatement is impossible for a different reason, however. The position of lobby director has apparently been eliminated throughout the Los Angeles Postal District since March 2009.*fn130 The testimony at trial indicated that lobby director was the only existing position at the Post Office that Malone was capable of performing within his restrictions.*fn131 As there is no indication that any position that Malone can perform is presently available at the Post Office, the court finds that reinstatement is not appropriate at this time. It therefore considers the appropriate front pay award.

D. Calculation of Front Pay

79. The evidence presented during the court trial and in both parties' post-trial briefs reflects a fundamental misunderstanding of the nature of front pay. Front pay is intended to be a temporary award. As the court stated in Glenn-Davis v. City of Oakland, No. C 02-2257 SI, 2008 WL 410239, *3 (N.D. Cal. Feb. 12, 2008), prior to adopting a three-year front pay period:

"The Ninth Circuit has noted, in the context of discussing a plaintiff's duty to mitigate damages, that 'front pay is intended to be temporary in nature.' Cassino v. Reichhold Chemicals, Inc., 817 F.2d 1338, 1347 (9th Cir.1987); see also Boehm v. American Broadcasting Co., Inc., 929 F.2d 482, 488 (9th Cir. 1991) (noting that 6 year front pay period 'is longer than customary in federal discrimination actions, [but] it is not so unsound as to warrant reversal'). In addition, courts have noted that '[t]he longer a proposed front pay period, the more speculative the damages become.' Peyton v. DiMario, 287 F.3d 1121, 1128 (D.C. Cir. 2002) (internal citation and quotation omitted)."

80. Malone seeks to recover salary and benefits through 2018, and retirement benefits through 2034 -- a front pay period of twenty five years. The court has not identified a single case in which front pay was awarded for so long a period. In fact, in Peyton, the D.C. Circuit concluded that an "award of 26 years of front pay was unduly speculative and therefore an abuse of discretion." 287 F.3d at 1129; cf. Gotthardt, 191 F.3d at 1157 (noting that district's court award of an eleven-year front pay period "seem[ed] generous," but concluding that it was not an abuse of discretion under the circumstances of the case). While it might have been expected that the Post Office would argue for a more reasonable front pay period, it appears to have accepted Malone's position that the appropriate period is the remainder of his life expectancy. This may well have been because Udinsky's opined that, coupled with his disability retirement payments, Malone's earnings from employment over this period would exceed what he could have earned had he remained employed at the Post Office.*fn132 The court must therefore exercise its discretion to determine the appropriate length of the front pay period.

81. "Factors that courts have considered in determining the amount of a front pay award include: (1) the length of prior employment; (2) the permanency of the position held; (3) the nature of the work; (4) the age and physical condition of the employee; (5) possible consolidation of jobs; and (6) myriad other nondiscriminatory factors which could validly affect the employer/employee relationship." Sanders v. City of Newport, 602 F.Supp.2d 1195, 1201-02 (D. Or. 2009) (citing Reneau v. Wayne Griffin & Sons, Inc., 945 F.2d 869, 871 (5th Cir.1991)).

82. Evaluating these factors, Malone had worked for the Post Office nearly twenty years at the time his employment terminated. By itself, this tends to indicate that Malone would have remained at the Post Office for a significant time.

83. On the other hand, the permanency of the position Malone held prior to termination suggests that a front pay period of more than several years would be unduly speculative. Although Malone's letter carrier position was permanent in the sense that he was not hired on a temporary basis, the fact that Malone's employment depended on the availability of limited duty positions adds an element of speculativeness to his continued future employment. Based on the evidence at trial, the jury could have concluded that permitting Malone to remain as a lobby director rather than transferring the position to a window clerk was a reasonable accommodation which the Post Office could have provided without undue hardship. Considering the elimination of the lobby director position, however, it is uncertain whether it would have continued to be economically feasible for the Post Office to employ Malone in that capacity for a significant period into the future. As there was no evidence that Malone could perform any other position at the Post Office, the length of time for which he would have been able to continue working for the Post Office is highly speculative.

84. Further, Malone's physical condition adds to the speculative nature of his continued ability to work for the Post Office. Dr. Wright regularly added to Malone's physical limitations. Considering this, it is likely that his limitations would have reached a point where the Post Office would no longer have been able to accommodate him.

85. Finally, Malone's deposition testimony indicated that he contemplated retiring at age 58.*fn133

At trial, Malone attempted to explain that he did not in fact mean that he would retire at 58. He testified that what he meant was "if my health was good [at 58] and I was feeling good, I would have kept working."*fn134 Considering Malone's incentives to testify that he would have worked for a longer period, the court does not find this testimony credible; the court's credibility determination is reinforced by Malone's arguably fraudulent conduct in applying for unemployment benefits despite his belief that he was unable to work and his unwillingness to accept a job if one were offered to him. Finally, given Malone's mental and physical issues, the court finds it unlikely that he would have continued "feeling good" past age 58.

86. Considering all the evidence in the record, the court finds that it would be unduly speculative to conclude that Malone would have continued his employment with the Post Office longer than five years, even absent the discriminatory and retaliatory conduct found by the jury. The court accepts Malone's testimony that he intended to work until age 58; however, considering his health problems, and the uncertain future availability of work within his increasing physical restrictions, the court concludes he is unlikely to have continued work after age 58, and would likely have taken disability retirement at that point. Under the circumstances, and particularly considering Malone's testimony that he intended to stop working at age 58, the court finds that a five-year period of front pay is sufficient to place Malone in the position he would have occupied but for the Post Office's discriminatory actions. Accordingly, Malone is entitled to five years of front pay. Cf. Jung, 2008 WL 2620905 at *3 (awarding front pay for five years to a postal worker who had been performing temporary light duty tasks and who prevailed on Rehabilitation Act claim).

87. The stipulated facts indicate that Malone's annual earning capacity at the Post Office beginning in 2009 was $61,330.*fn135 The court has concluded that Malone could have mitigated his damages by obtaining a customer service job. To calculate the amount of mitigation that should be offset, the court will use the median salary for customer service representatives identified by Udinsky, $31,873.*fn136 Applying Malone's annual disability retirement benefit of $25,951,*fn137 his annual loss over the front pay period was $3,506.00. Accordingly, Malone is entitled to $17,530.00 in front pay.

88. Any conclusions of law that are deemed to be findings of fact are incorporated herein as such.


For the reasons stated, the court concludes that Malone is entitled to $28,740.17 in back pay, $271.50 in prejudgment interest, and $17,530.00 in front pay. The court will enter judgment for these amounts and for the $300,000 in emotional distress damages awarded by the jury.

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