UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

JENNIFER LANE, Plaintiff, v. GRANT COUNTY, a Washington municipal corporation, UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON Defendant. NO. CV--0-RHW ORDER ADDRESSING POST-TRIAL MOTIONS Before e Court are Defendant s Motion to Amend Judgment and/or For A New Trial, ECF No. ; Plaintiff s Motion for Attorney Fees and Costs, ECF No. 1, and Plaintiff s Motion for Award of Front Pay, Interest, Compensation for Tax Consequences, and Liquidated Damages Under FMLA, ECF No.. A hearing on e motions was held on August,, in Spokane, Washington. Plaintiff was present and represented by Steven Lacy. Defendant was represented by Jerry Moberg. On April,, e jury returned a verdict finding for Plaintiff on her Family Medical Leave Act (FMLA) restoration claim, and finding for Defendant on Plaintiff s interference claim and her Washington Law Against Discrimination (WLAD) disability discrimination claim. The jury awarded Plaintiff $0,000 in back pay damages. I. Defendant s Motion to Amend Judgment and/or For A New Trial Defendant moves e Court to enter judgment in its favor, notwistanding e jury verdict, order a new trial on e restoration claim so at e jury can be instructed on e key employee defense claim, or set aside e verdict on e ORDER ADDRESSING POST-TRIAL MOTIONS ~ 1

Restoration claim, and dismiss e action wiout any monetary award to Plaintiff. In e event e Court denies its motion, Defendant asks e Court to reduce e award for back pay from $0,000 to $,, because e record does not support e back pay award. A. Restoration Claim Defendant asserts e Court improperly instructed e jury on e FMLA restoration claim because it did not have a duty to restore Plaintiff to her prior job 1 as she was a key-employee. See ECF No. at. In order to properly analyze Defendant s position, it is necessary to review e proceedings of e case. On January,, e Court entered an order denying Plaintiff s Motion for Summary Judgment and granting Defendant s Motion for Summary Judgment. See ECF No. 1. Defendant made ree arguments in its Motion: (1) Plaintiff was not eligible for leave because certain exemptions preclude coverage under e FMLA; () e County s mistaken grant of leave did not preclude it from challenging Plaintiff s eligibility; and () even if eligible, Plaintiff is a key employee and is not entitled to reinstatement after her leave. See ECF No.. In her motion, Plaintiff argued Defendant failed to follow e regulations when it designated her as a key employee and notified her at it was eir intention to deny restoration. See ECF No.. The Court found e FMLA applied to Plaintiff, rejecting Defendant s argument at e personal staff exemption or e policymaker exemption precluded FMLA coverage. ECF No. 1. In addressing Plaintiff s argument, e Court found e notice provided by Defendant was adequate to provide e reasons for not restoring Plaintiff. Id. Plaintiff asked e Court to reconsider its decision, ECF No., and Defendant asked e Court to strike e retaliation claim, ECF No.. The Court 1 Defendant maintains e Court properly instructed e jury on e FMLA interference Claim. ECF No. at. ORDER ADDRESSING POST-TRIAL MOTIONS ~

granted Plaintiff s Motion for Reconsideration, agreeing wi Plaintiff at ere was a factual issue wi respect to e right to restoration claim, namely wheer ere was a substantial and grievous economic injury to e operations of e employer and wheer ere was a job to which she could return. See ECF No. 1. Prior to trial, e Court filed two sets of Proposed Jury Instructions. See ECF Nos. 1,. Bo sets of instructions contemplated two types of FMLA claims: an interference claim, i.e. using e taking of FMLA leave as a negative factor in an employment action; and a restoration claim, i.e.failing to restore Plaintiff to e same or equivalent position after her leave ended. The second set of Proposed Jury Instructions included four instructions specifically relating to Plaintiff s FMLA restoration claim: Instruction No..1,.,., and.. Instruction No.. set for e key employee defense: Defendant asserts it did not have to restore Plaintiff to e same or equivalent position because she is a key employee, restoring her to her position would have caused a substantial and grievous economic injury, and Plaintiff elected not to return to her employment after receiving e key employee notice. A key employee is defined as a salaried employee who is among e highest paid % of e employees employed by e employer wiin miles of e facility at which e employee is employed. In order to establish e Key Employee defense, Defendant has e burden to prove e following elements by a preponderance of e evidence. 1. That Plaintiff was a key employee;. That Defendant made a good fai determination at substantial and grievous economic injury would occur if Plaintiff were reinstated to her former job, or an equivalent position;. That failing to restore Plaintiff to her former job, or an equivalent position, was necessary to prevent a substantial and grievous economic injury to Defendant s operations;. That after Defendant made such determination, it promptly notified Plaintiff of its intent to deny restoration to e same or equivalent position, explaining e basis for its finding at substantial and grievous economic injury will result, and providing Plaintiff a reasonable time in which to return to work, taking into account e circumstances, such as e leng of e leave and e urgency of e need for Plaintiff to return; and. That Plaintiff did not give notice to Defendant at she intended to return to work. Defendant has e burden of proving is defense by a preponderance of e evidence. ORDER ADDRESSING POST-TRIAL MOTIONS ~

ECF No.. On e morning of trial, e Court ruled on a number of pretrial items, including e second set of proposed instructions. At e beginning of e hearing, e Court queried wheer e key employee defense applied to e facts of e case, and asked wheer Instruction No.. should be given, since ere was no dispute at Defendant could not meet e four element of e defense because it never provided Plaintiff wi a reasonable time to return to work. ECF No. at. Initially, bo parties indicated ey wanted e Court to provide Instruction No.. to e jury. Plaintiff s counsel en reconsidered and e Court explained its reasoning: My inking was is, Mr. Lacy, and I may have to explain myself, but normally your client would be given e option in at letter to say I don t want to take Family Medical Leave, I want to stay in my job, and at s what at whole provision is for, and at wasn t included in e letter. She couldn t stay in her job. They were going to abolish it. So I m wondering why ey would be able to avail emselves of e Key Employee Defense. ECF No. at -. The Court went on to explain it believed at if e jury was given Instruction., it would be appropriate to direct a verdict on at question since it was uncontroverted at Defendant could not meet its burden wi respect to e four element. ECF No. at. Plaintiff en agreed at Instruction No.. would not be given to e jury. Id. The Court en queried Defendant s counsel about Instruction.. Mr. Moberg responded he did not ink any of e Key Employee issues should be offered, and also agreed at e real issue before e jury is wheer Defendant Grant County would have made e same decision anyway. ECF No. at. This defense was set for in Instruction., as follows: Defendant asserts it did not have to restore Plaintiff to e same or equivalent position because it would have terminated Plaintiff s position even if Plaintiff had not ORDER ADDRESSING POST-TRIAL MOTIONS ~

The Court also asked Defendant s counsel about Instruction.0,.1 and.. Counsel stated at. was fine, but he also indicated he did not believe e Court should instruct e jury on e interference claim. ECF No. at. In response, e Court asked: You ink e instruction is written right, but it shouldn t be given because of and counsel responded: Yes, exactly. ECF No. at. On April,, e parties and e Court again discussed e jury instructions. See ECF No.. In stating its objections, Defendant indicated at it believed Instruction No. was a correct statement of e law, but it did not taken FMLA leave. Under e FMLA, an employer does not have to reinstate an employee at has taken FMLA leave if e employer would have terminated e employee even if e employee had not taken FMLA leave. An employee has no greater right to reinstatement an if e employee had been continuously employed during e FMLA period. Defendant has e burden of proving is defense by a preponderance of e evidence. ECF No.. Instruction.1 provided: Wi respect to Plaintiff s FMLA restoration claim, under e FMLA, an employee is entitled to return to e same or equivalent position wi equivalent employment benefits, pay, and oer terms and conditions of employment after her leave has ended, subject to e defenses in INSTRUCTION NOS.. and.. Plaintiff has e burden of proving is claim by a preponderance of e evidence. Defendant Grant County maintains it did not have to reinstate Plaintiff to her position for e reasons described in INSTRUCTION NOS.. and.. Instruction No, as given to e jury, stated: The Family Medical Leave Act (FMLA) requires employers to grant to an eligible employee up to twelve weeks of unpaid leave per year because of a serious heal condition at makes e employee unable to perform e functions of e position of e employee. ORDER ADDRESSING POST-TRIAL MOTIONS ~

believe e evidence supported any FMLA claim. ECF No. at. Defendant objected, as a technical matter, to e Court breaking up Plaintiff s claims into e two parts, namely, e interference and e failure to restore. ECF No. at. Upon inquiry, Defendant conceded it did not matter wheer e Court presented two separate claims. ECF No. at. At no point did Defendant indicate at it believed e Court was not correct in its statement of e law. On e contrary, Defendant specifically indicated its belief at e Court was correct in setting for e law wi respect to e FMLA claims. The jury was not given Instruction No.., e Key Employee defense, and Instruction No..1 was amended to take out any reference to Instruction No... In addition, Instruction No..a was added, incorporating language from e regulation at defined equivalent position. Under e FMLA, an employee who has taken FMLA has e right to be restored to her original position or to a position equivalent in benefits, pay, and conditions of employment upon return from leave. U.S.C. (a); see also Xin Liu v. Amway Corp., F.d 1, ( Cir. 0). The statute provides an exemption to is right to restoration. Subsection (b) permits an employer to deny restoration to eligible employees if e employee is considered a key employee; (A) such denial is necessary to prevent substantial and grievous economic injury to e operations of e employer; (B) e employer notifies e employee of e intent of e employer to deny restoration on such basis at e Plaintiff alleges at Defendant violated e FMLA in two different manners: (1) by interfering wi her FMLA rights; and () by failing to restore her to e same or equivalent position. ECF No. 1. A key employee is a salaried eligible employee who is among e highest paid percent of e employees employed by e employer wiin miles of e facility at which e employee is employed. U.S.C. (1)(b)(). ORDER ADDRESSING POST-TRIAL MOTIONS ~

time e employer determines at such injury would occur; and (C) in any case in which e leave has commenced, e employee elects not to return to employment after receiving such notice. U.S.C. (1)(b)(1). employee. The regulations set for e type of notice e employer must give e key C.F.R..(a) provides: An employer who believes at reinstatement may be denied to a key employee, must give written notice to e employee at e time e employee gives notice of e need for FMLA leave (or when FMLA leave commences, if earlier) at he or she qualifies as a key employee. At e same time, e employer must also fully inform e employee of e potential consequences wi respect to reinstatement and maintenance of heal benefits if e employer should determine at substantial and grievous economic injury to e employer's operations will result if e employee is reinstated from FMLA leave. If such notice cannot be given immediately because of e need to determine wheer e employee is a key employee, it shall be given as soon as practicable after being notified of a need for leave (or e commencement of leave, if earlier). It is expected at in most circumstances ere will be no desire at an employee be denied restoration after FMLA leave and, erefore, ere would be no need to provide such notice. However, an employer who fails to provide such timely notice will lose its right to deny restoration even if substantial and grievous economic injury will result from reinstatement. C.F.R..(b) provides: As soon as an employer makes a good fai determination, based on e facts available, at substantial and grievous economic injury to its operations will result if a key employee who has given notice of e need for FMLA leave or is using FMLA leave is reinstated, e employer shall notify e employee in writing of its determination, at it cannot deny FMLA leave, and at it intends to deny restoration to employment on completion of e FMLA leave. It is anticipated at an employer will ordinarily be able to give such notice prior to e employee starting leave. The employer must serve is notice eier in person or by certified mail. This notice must explain e basis for e employer's finding at substantial and grievous economic injury will result, and, if leave has commenced, must provide e employee a reasonable time in which to return to work, taking into account e circumstances, such as e leng of e leave and e urgency of e need for e employee to return. The FMLA provides employees wi a limited right to reinstatement. Instruction No.. set for e requirements contained in ese regulations. ORDER ADDRESSING POST-TRIAL MOTIONS ~

Sanders v. City of Newport, F.d, ( Cir. ). The right to reinstatement guaranteed by U.S.C. (a)(1) is e linchpin of e entitlement eory because e FMLA does not provide leave for leave s sake, but instead provides leave wi an expectation at an employee will return to work after e leave ends. Id. at. Evidence at an employer failed to reinstate an employee who was out on FMLA leave to her original (or an equivalent) position establishes a prima facie denial of e employee s FMLA rights. Id. In a failure to restore claim, e employer s intent is not a relevant part of e inquiry. Id. In Sanders, e Nin Circuit relied on e regulations to hold at it is e employer s burden to show at it had a legitimate reason to deny an employee reinstatement. Id. at 0. Similarly, in is case, e Court relied on e regulations in determining at before Defendant can take advantage of e exemption set for in section (b), it has a burden to show at it fulfilled e requirements of C.F.R..(a) and (b). See C.F.R..0(b)(stating at any violation of e FMLA itself or of e DOL regulations constitute interference wi an employee s rights under e FMLA); see also Xin Liu, F.d at 1. The regulations are written in mandatory language. The employer must give written notice to e employee at she was a key employee. The employer must explain e basis for e employer s finding at substantial and grievous economic injury will result. The employer must provide e employee a reasonable time in which to return to work. Here, it is undisputed at Defendant did not comply wi e regulations because it never provided Plaintiff wi a reasonable time in which to return to work. As a matter of law en, Defendant was precluded from relying on e key employee defense. Instead, e only defense available to Defendant was e defense set for in C.F.R.., and Instruction No. (a) An employee has no greater right to reinstatement or to oer benefits and conditions of employment an if e employee had been continuously ORDER ADDRESSING POST-TRIAL MOTIONS ~

.. Moreover, Defendant waived its right to object post-trial to e jury being instructed on e restoration claim. A review of e transcript reveals at Defendant agreed wi e Court s determination at e key employee defense did not apply. The Court never indicated at it did not intend to not instruct e jury on e restoration claim. Specifically, ere is noing in e record at suggests any discussion or agreement at e Court would not instruct e jury wi Instructions No.,.1 and. instructions dealing exclusively wi e Restoration claim. Defendant objected to having e jury be instructed on e interference claim, but did not indicate to e Court at it believed Instruction No.,.1, or. were incorrect statements of e law, or at e jury should not be given ese instructions. No where in e record did Defendant object to Instructions.1 and., which set for e elements of e restoration claim and its defense. The jury was properly instructed wi respect to e FMLA restoration claim and Defendant waived any objection to e jury being instructed on e restoration employed during e FMLA leave period. An employer must be able to show at an employee would not oerwise have been employed at e time reinstatement is requested in order to deny restoration to employment. C.F.R..(a). See Footnote. Instruction No..1 stated: Wi respect to Plaintiff s FMLA restoration claim, under e FMLA, an employee is entitled to return to e same or equivalent position wi equivalent employment benefits, pay, and oer terms and conditions of employment after her leave has ended, subject to e defenses in INSTRUCTION NOS.. and.. Plaintiff has e burden of proving is claim by a preponderance of e evidence. Defendant Grant County maintains it did not have to reinstate Plaintiff to her position for e reasons described in INSTRUCTION NOS.. and.. ORDER ADDRESSING POST-TRIAL MOTIONS ~

claim. B. Back pay Award Defendant argues e Court should reduce e jury s back pay award to e amount testified to by Plaintiff s expert, or order a new trial on e back pay damages. The Court agrees. There is noing in e record to support e jury s verdict of back pay in e amount of $0,000. The only evidence in e record regarding e amount of back pay came from Plaintiff s expert testimony, who testified at Plaintiff s back pay losses were $,. In her response, Plaintiff indicated she would elect to a reduction in e jury award, raer an have a new trial on is issue. The Court will amend e judgment entered on April,, ECF No. 1, to reflect e amended amount of back pay. II. Plaintiff s Motion for Attorneys Fees and Costs Plaintiff asks for her reasonable attorneys fees and costs plus a 1. multiplier. U.S.C. (a)() provides at in a FMLA action, e court shall, in addition to any judgment awarded to e plaintiff, allow a reasonable attorney s fee, reasonable expert witness fee, and oer costs of e action to be paid by e defendant. Courts have interpreted is to mean at e attorney s fees provision in e FLMA is mandatory. See Navarro v. General Nutrition Corp., 0 WL (N.D. Calif. Nov., 0) (reviewing cases where courts interpreted is provision to provide for mandatory fees). Defendant concedes Plaintiff is e prevailing party and acknowledges e requested rates are reasonable. Defendant asks e Court to segregate e fees because Plaintiff was unsuccessful wi respect to her FMLA interference/retaliation claim, her Washington Law Against Discrimination (WLAD) disability claim, and her breach of specific promise claim. Before e Court finalized e jury instructions, Plaintiff indicated at she was not going to argue is eory to e jury because e evidence has established ORDER ADDRESSING POST-TRIAL MOTIONS ~

The Court must use e lodestar meod to determine reasonable attorneys fees under e FMLA. Navarro, 0 WL at *. The lodestar is determined by a reasonable hourly rate multiplied by e reasonable number of hours expended. Hensley v. Eckerhart, 1 U.S., (). Plaintiff bears e burden of proving e reasonableness of bo e hourly rate and e number of hours expended. Id. at. A plaintiff is entitled to recover attorney s fees even for claims on which she did not prevail, if ey involve a common core of facts or are based on related legal eories. Mendez v. Cnty. of San Bernardino, 0 F.d 0, 1- ( Cir. 0). Claims are related for purposes of determining attorney s fees even ough ey are brought on e basis of different legal eories against different defendants if e claims arose from a common core of facts. McCown v. City of Fontana, F.d, 0 ( Cir. 0). On e oer hand, a plaintiff is not eligible to receive attorney s fees for time spent on unsuccessful claims at are unrelated to a plaintiff s successful claim. Id. A district court may reduce attorney s fees by a percentage, as long as e court sets for clear and concise reasons for adopting is approach. Ferland v. Conrad Credit Corp., F.d 1, ( Cir. 01). Here, e Court finds at all of Plaintiff s claims arose from a common core of facts. The common core of facts involved uncovering Defendant s motivation in terminating Plaintiff. While Plaintiff did not have to prove intent wi respect to her failure to restore claim, she had to defend against Defendant s claim at it a defense to e eory. ECF No. at -. Magistrate Judge Chen noted at [a]lough e attorney s fee provision in e FMLA is different from e attorney s fee provisions in oer civil rights statutes (e.g., Title VII) because e former is mandatory and not discretionary, courts have analyzed motions for attorney s fees under e FMLA in e same way as motions for attorney s fees under oer civil rights statutes. Navarro, 0 WL at *. ORDER ADDRESSING POST-TRIAL MOTIONS ~

would have terminated her even if she had not taken FMLA. Also, Plaintiff had to defend against Defendant s claim at it acted in good fai, which implicates Defendant s intent. Thus, Plaintiff s claims involved a common core of facts. Also, Plaintiff was successful in obtaining back pay, interest and front pay and her recovery was significant in relation to e hours reasonably expended on e litigation. The Court declines to exercise its discretion to segregate Plaintiff s request for attorney s fees. The reasonable attorney s fees calculated wi e lodestar meod are $,0.0 in attorney s fees, $,0 in expert fees, and remaining costs, $.0. Plaintiff asks e Court to enhance e lodestar amount. In determining wheer it is appropriate to enhance e lodestar fees, e Court considers additional factors including e time and labor required, e skill requisite to perform e legal services properly, e preclusion of oer employment by e attorney due to e acceptance of e case, e customary fee, time limitations imposed by e client or e circumstances, e amount involved and e results obtained, e experience, reputation, and ability of e attorneys, e undesirability of e case, e nature and leng of e professional relationship wi e client, and awards in similar cases. Kerr v. Screen Extras Guild, Inc., F.d, 0 As e Nin Circuit explained, Under Hensley, e reasonableness of a fee award is determined by answering two questions: First, did e plaintiff fail to prevail on claims at were unrelated to e claims on which he succeeded? Second, did e plaintiff achieve a level of success at makes e hours reasonably expended a satisfactory basis for making a fee award? McCown, F.d at 0. It is presumed at e novelty and complexity of e issues are fully reflected in e number of billable hours recorded by counsel, and us would not warrant an upward adjustment. Blum v. Stenson, U.S., () ORDER ADDRESSING POST-TRIAL MOTIONS ~

( Cir. ). The Court declines to enhance e lodestar fee. This was not an extraordinary case. While e Court wrestled wi e proper application of e Family Medical Leave Act, is case was e second FMLA involving e same defendant, same counsel, same players, and same department wiin Grant County. It was not complex nor were e proceedings drawn out. The lodestar amount accurately represents reasonable attorney s fees. III. Plaintiff s Motion for Award of Front Pay, Interest, Compensation for Tax Consequences, and Liquidated Damages under FMLA In addition to e jury award of back pay, Plaintiff is seeking additional damages in e form of front pay, interest on her past economic loss, a sum representing e tax consequences of her award, and liquidated damages. A. Front Pay Plaintiff asserts at reinstatement is not appropriate and asks e Court to award $,000 in front pay, based on her expert s testimony at Plaintiff s future economic damages are $,000. Defendant opposes any request for reinstatement and front pay because Plaintiff failed to mitigate her damages. U.S.C. (a)(1)(b) provides at any employer who violates e FMLA shall be liable for such equitable relief as may be appropriate, including employment, reinstatement, and promotion. Here, reinstatement is not an option because e record reflects at Plaintiff s former job or a similar or equivalent job is not available. In its response to e Court s inquiry, Defendant offered Plaintiff a job as Administrative ( Neier complexity nor novelty of e issues, erefore, is an appropriate factor in determining wheer to increase e basic fee award. ). Enhancing a fee award on account of contingency is improper. City of Burlington v. Dague, 0 U.S. (). Plaintiff s expert calculated front pay to e age of. ORDER ADDRESSING POST-TRIAL MOTIONS ~

Assistant in e Department of Public Defense. See ECF No.. There is no dispute at is position is not similar or equivalent to e position Plaintiff held prior to going on FMLA and prior to being terminated. In its response to Plaintiff s motion, Defendant identified a number of jobs at had become available since Plaintiff s departure from Grant County. It does not appear at Defendant ever offered Plaintiff ese jobs, nor is ere sufficient detail for e Court to determine wheer ese jobs were similar or equivalent. The Court finds as a factual matter at reinstatement to e same or equivalent position is not feasible. Similarly, ere is noing in e record at indicates it would be appropriate to order at Plaintiff be promoted into a position. Given e history of is case, en, it appears at employment is e only remaining specifically enumerated option for equitable relief. While courts have recognized at generally reinstatement is a preferred remedy, see Traxler v. Multnomah County, F.d 0, ( Cir. ), no courts have recognized at employment is preferred. Also, reinstatement may not be appropriate where e plaintiff has found oer work. Arban v. West. Pub. Corp., F.d 0, 0 ( Cir. 0). If e Court were to exercise its discretion and order employment, at is, order at Defendant provide Plaintiff wi a job, equity may require e Court to order front pay to make up e difference between e current job and e former job if, for instance, e current job has less pay, less responsibilities, and less security. In such a situation, employment plus front pay would be e monetary equivalent of reinstatement to e same or similar position. Also, employment plus front pay would compensate e plaintiff for wages and benefits she would have received from e employer in e future if not for e FMLA violation, but account for e fact at at e employment is for a different position. As a practical matter, employment plus front pay may be e preferred remedy where ORDER ADDRESSING POST-TRIAL MOTIONS ~

reinstatement is inappropriate, but employment is; yet employment alone will not fully compensate e employee. In is case, Plaintiff proffered to e Court at e position being offered by Defendant is no better option an e employment at she is currently in. In addition, six years have passed since Plaintiff was last employed by Grant County, and e trial record reflects animosity between e parties. In is situation, it would not be equitable to force Plaintiff to take a job at would put her in no better position an she currently is in and which she enjoys. However, equity demands at Plaintiff be awarded some type of front pay to compensate her from e difference between her current employment options (e WSU position or e Grant County position) and e position she would have held but for Defendant s failure to restore her after she returned from leave. The question en is what is e amount of front pay at Plaintiff is entitled to receive. Most courts have considered front pay in relationship to claims under e ADEA, Title VII, and e ADA. In ese case, courts have considered several factors when determining e propriety of an award of front pay: (1) an employee's duty to mitigate; () e availability of employment opportunities; () e period wiin which one by reasonable efforts may be re-employed; () e employee s work and life expectancy; () e discount tables to determine e present value of future damages and oer factors at are pertinent on prospective damage awards, Arban v. W. Pub. Corp., F.d 0, 0 ( Cir. 0); () e leng of prior employment, () e permanency of e position held, () e nature of e work, () e age and physical condition of e employee, () possible consolidation of jobs, and () e myriad oer non-discriminatory factors which could validly affect e employer/employee relationship. Downey v. Strain, F.d, ( Cir. 0). As e Nin Circuit noted, The purpose of front pay... is to ensure at a person who has been discriminated against... is made whole, not to guarantee every claimant who cannot mitigate damages by finding comparable ORDER ADDRESSING POST-TRIAL MOTIONS ~

work an annuity to age 0. See Gotardt v. National R.R. Passenger Corp., 1 F.d, ( Cir. ) (quoting Anastasio v. Schering Corp., F.d rd 01, 0 ( Cir. ). Here, at e hearing, bo parties seemed to agree at e position offered by e County was at least $,000 less an she would have been making if she continued to work at Grant County in an administrative capacity. On September,, Plaintiff filed a Declaration stating recently she was offered a full-time job making $,, which is $,01 less per mon an she was making when she was employed by Grant Count. See ECF No.. Based on e record before e Court, front pay in e amount of $0,000 per year is equitable to compensate Plaintiff. The more difficult question is determining e number of years for which Plaintiff should receive is amount. As set for above, Plaintiff is seeking front pay until she is age. At e hearing, Defendant suggested at if front pay was appropriate, it should be between one and ree years. Front pay is intended to be temporary in nature. Cassino v. Reichhold Chemicals, Inc., F.d, ( Cir. ). The longer e period of front pay, e more speculative e damages become. Peyton v. DeMario, F.d, 1 (D.C. Cir. 0). Because of e potential for windfall on e part of e Plaintiff, e amount and use of front pay must be tempered. Gotardt, 1 F.d at (quoting Duke v. Uniroyal, Inc., F.d, ( Cir. 1). After carefully considering e factors set for above, e Court finds two The monly salary for e Administrative Assistant position wi e Department of Public Defense is $,.00. See ECF No.. In her response to e County s offer, Plaintiff indicated at she was making in excess of $0,000 a year, plus full benefits when she was on leave. ECF No.. director. It appears at Plaintiff made $ ($, +,01) per mon as PARC ORDER ADDRESSING POST-TRIAL MOTIONS ~

years is an adequate time period to compute e front pay award, raer an to e age of as Plaintiff requested. See Traxler, F.d at (finding e district court did not abuse discretion in limiting front pay to roughly ree years of salary and benefits, where e district court relied on e fact at ere may be some disparity in e earning capacity for a period of time, but e employee was young and had good job skills). In Traxler, e district court found it unreasonable to assume at e plaintiff, a county employee, would be unable to find a comparable position for e rest of her life. Id. The Court makes e same assumption in is case. Two years is adequate time to give Plaintiff e opportunity to obtain a comparable salary and position as she had before she was terminated and reflect e historically low labor markets at are currently on e upswing. Also, two years takes into account Plaintiff s age and her ability to continue to work, but also reflects e fact at it took her additional time to secure full-time employment at a lower salary. However, a front pay award in excess of two years would be unduly speculative. The record suggests at e County was continually looking at ways to reorganize its programs and services. Indeed, testimony at trial revealed At trial, Defendant s expert, Dr. David Knowles, testified at e labor markets for e last ree or four years have been historically slow. ECF No. at. In his declaration, Dr. Knowles stated at Grant County has been posting stronger employment gains, wi a significant drop in unemployment rates. ECF No. at. At trial, Dr. Knowles believed at Plaintiff would be able to obtain comparable employment in one to two years, given e severe economic times and e fact at she lived in a rural area. ECF No. at -. In his declaration, Dr. Knowles stated at a four year period is an extraordinary lengy time period for a worker to be able to garner an acceptable alternative employment opportunity for an individual wi Ms. Lane s work experience. ECF No. at. ORDER ADDRESSING POST-TRIAL MOTIONS ~

at e person who was placed in one of e newly created position as a result of e merger was subsequently demoted to anoer position. Additionally, Plaintiff received back pay from September, 0 to April,, a period of nearly four years. An additional two years of front pay gives Plaintiff roughly six years to mitigate her damages, which is consistent wi e case law and is appropriate given e facts of is case. Consequently, e Court awards Plaintiff front-pay of $0,000 a year for a period for two years for a total award of $0,000 in front pay. B. Pre-judgment Interest Under e FMLA, an employee is entitled to interest, calculated at e prevailing rate, on e amount of any wages, salary, employment benefits, or oer compensation denied or lost to such employee by reason of e [FMLA] violation. See U.S.C. (a)(1)(a)(ii). Pre-judgement interest on FMLA damages is mandatory, not discretionary. Dotson v. Pfizer, Inc., F.d, 0 ( Cir. 0). The FMLA does not define e term prevailing rate. District courts have exercised eir discretion to find different meodologies of calculation appropriate in different contexts. See Bell v. Prefix, Inc., WL 0 ( Cir. )(listing cases applying e state statutory rate, section 1(a) rate, or e prime rate). Recently, Judge Suko of e Eastern District of Washington applied e prime rate in awarding prejudgment interest in a FMLA claim. See Gutierrez v. Grant County, CV---LRS, WL 0 at * The jury did not find at e taking of FMLA leave was a motivating factor in e decision to terminate Plaintiff. Raer, e jury verdict indicates e jury believed at e FMLA required Grant County to transfer Plaintiff to one of e new positions created as a result of e merger. The prime rate is e rate at banks charge for short-term unsecured loans to credit-wory customers. Forman v. Korean Airlines Co., Ltd., F.d, 0 ORDER ADDRESSING POST-TRIAL MOTIONS ~

(E.D. Wash. Nov., ). In doing so, Judge Suko considered e compensatory purpose of prejudgment interest and e historical reduction of interest rates while at case was pending. Id. The Court adopts e reasoning of Judge Suko. The current prime rate is.%. The Court will apply a.% interest rate from e date of Plaintiff s termination to e date of final judgment, which is e same as e date of is order. C. Damages for Tax Consequences Plaintiff asks e Court to award her e equitable relief of damages for e tax consequences of receiving her back pay as a lump sum. Defendant asserts (D.C. Cir. ). The Court calculated e interest as follows: $, x.0 = $,0. per year. Plaintiff was terminated on September, 0. Thus, interest would accrue at $,0. per year for e time periods of //0-//, //-//, and //-//, which equals $,. ($,0. x ), and would accrue at $. a day for e time period of // to //, which equals $,0.1 (. x ). The total pre-judgment interest is $,.. This has been described in e literature as grossing up. See Thomas R. Ireland, ante. As Mr. Ireland explained, e goal of grossing up is to account for e extra taxes at will be owed by an award recipient in e year an award for past and future lost income is paid. Because awards for past and future loss income due to wrongful termination will be taxed in e year paid based on tax rules for at year, under progressive income tax structures, lump sum awards will cause more taxes to be paid an would have if e termination had not occurred and income had been paid in e years in which e income was earned. The term gross-up, en, refers to calculating award amounts such at e award winner will have e same after tax net income at e award winner would have had if ORDER ADDRESSING POST-TRIAL MOTIONS ~

ere is no federal auority for increasing e damages amount to offset her tax consequences. It is true at federal circuits are not in agreement wi respect to wheer or not gross-up tax adjustments should be made. See Thomas R. Ireland, Tax Consequences of Lump Sum Awards in Wrongful Termination Cases, -Oct. J. Legal Econ. 1, ()(noting at e Third and Ten Circuit have held at gross-ups should be made, while e D.C. Circuit has stated in very definite terms at gross-ups should not be made.) Here, Rick Linder, Plaintiff s expert, was asked to provide e pre-tax equivalent for Plaintiff s jury award. He stated e pre-tax equivalent of Plaintiff s jury award of $0,000 is $,00, e difference being $,00. Mr. Linder did not provide his meodology for arriving at is figure. See id. at 1 (identifying at least ree difference meods for grossing up an award for back pay). For instance, it is not clear if is figure was grossed down to account for a possible reduction in Social Security taxes. Notably, in his article, Mr. Ireland concluded at any calculation for a gross-up is likely to be a rough and ready calculation and is complicated. Id. at. Wiout any meodology, e Court cannot e termination had not taken place. On e oer hand, because Social Security payroll tax is a regressive tax on active income, it may be appropriate to grossdown an award due to e net decrease in Social Security taxes at would result from a lump sum payment. Mr. Linder s numbers are suspect for anoer reason. In Eshelman v. Agere Systems, Inc., e Third Circuit affirmed e district court s decision to award an additional $,.00 as compensation for e negative tax consequences of rd receiving a lump sum back pay award. F.d, ( Cir. 0). In at case, e plaintiff was awarded $0,000 in back pay. Here, Plaintiff s expert concluded a $,00 adjustment is necessary, nearly times e amount for a ORDER ADDRESSING POST-TRIAL MOTIONS ~

determine what e tax consequences would be for e reduced back pay award. Given e lack of auorization from e Nin Circuit, e split among e Circuits, and e inability to properly evaluate Mr. Linder s testimony, e Court declines to exercise its discretion to increase Plaintiff s damages award to account for tax consequences. D. Liquidated Damages Plaintiff is seeking liquidated damages under e FMLA. The FMLA auorizes liquidated damages equal to e amount of lost wages and interest. U.S.C. (a)(1)(a)(iii). Once it is determined at an employer violated e FMLA, liquidated damages should be awarded, unless e employer proves bo good fai and reasonable grounds for believing at [its action] was not a violation of e FMLA. Traxeler, F.d at. In his Order, Judge Suko questioned wheer Grant County acted in subjective good fai in terminating Ms. Gutierrez s employment. Gutierrez, WL 0 at *. Plaintiff and Ms. Gutierrez were bo employees of e PARC department wiin Grant County, bo were on family medical leave around e same time, and bo were terminated around e same time. Id. Specifically, Judge Suko noted e record demonstrated at Grant County did not exhibit such care and caution even ough e only two employees terminated in e merger of PARC and GrIS (Plaintiff and Jennifer Lane) were bo on FMLA leave when eir positions were eliminated. Id. Judge Suko indicated at at trial, Ms. Heckler testified she was uncertain wheer in e summer of 0 she knew of e FMLA regulations. Id. She ought it was likely she did some research on e lower back pay award. Granted, e tax laws are complex and ere may be a good explanation for e discrepancy, including e beginning bracket and spousal income. Nevereless, in order for e Court to accept Plaintiff s expert s amount, it would be necessary for e Court to have some explanation as to e meodology to obtain is number. ORDER ADDRESSING POST-TRIAL MOTIONS ~

issue, but she could not remember what she found out. Id. Also, she could not remember speaking to e county commissioners about e fact at e restructuring proposal called for e layoffs of employees on FMLA leave. Ultimately, Judge Suko found at even assuming at Defendant Grant County acted in subjective good fai because of budgetary concerns, its conduct was not objectively reasonable. Id. At trial and roughout e post-trial briefing, Defendant has maintained it did not have a duty to restore Plaintiff to an equivalent position because she was a key employee and it decided to eliminate her position. However, as set for above, is is not a correct understanding of e law. Moreover, Ms. Hechler s testimony at trial was different an her testimony before Judge Suko and as submitted in her Declaration in opposition to Plaintiff s post-trial motions. Consequently, e Court agrees wi Judge Suko at Defendant did not have a reasonable basis for believing its conduct was lawful. Defendant has not overcome e presumption at liquidated damages should be awarded to Plaintiff. Nor has it met its burden of proving at its conduct was objectively reasonable. See Cooper v. Fulton County, Ga, F.d, ( Cir. 0) (employer s conduct not reasonable where court administrator had never consulted e FMLA or its implementing regulations, personnel director had not read e statute or regulations, and ere had been no consultation wi an attorney). As such, e Court awards liquidated damages pursuant to U.S.C. (a)(1)(a)(iii). Accordingly, IT IS HEREBY ORDERED: 1. Defendant s Motion to Amend Judgment and/or For a New Trial, ECF No., is DENIED.. Plaintiff s Motion for Attorney Fees and Costs, ECF No. 1, is GRANTED.. Plaintiff s Motion for Award of Front Pay, Interest, Compensation for ORDER ADDRESSING POST-TRIAL MOTIONS ~

Tax Consequences, and Liquidated Damages under FMLA, ECF No., is GRANTED, in part. moot.. Plaintiff s Motion in Limine, ECF No., is DENIED, as moot.. Defendant s Motion in Limine, ECF No., is DENIED, as moot.. Defendant s Motion to Strike Response, ECF No., is DENIED, as. Defendant s Motion to Expedite, ECF No., is GRANTED.. The District Court Executive is directed to enter judgment in favor of Plaintiff and against Defendant as follows: a. Past economic loss $,.00 b. Interest on past economic loss $,. c. Liquidated Damages $1,. d. Front pay $ 0,000.00 e. Reasonable Expert Witness Fee $,0.00 f. Oer Non-Taxable Costs $.0 g. Reasonable attorneys fees $,0.0 TOTAL JUDGMENT AWARDED TO PLAINTIFF: $1,., togeer wi post-judgment interest as provided by law from and after e date hereof. IT IS SO ORDERED. The District Court Executive is directed to enter is Order, provide copies to counsel, and close e file. DATED is day of September,. Q:\RHW\aCIVIL\\Lane\posttrial.wpd s/robert H. Whaley ROBERT H. WHALEY United States District Court ORDER ADDRESSING POST-TRIAL MOTIONS ~