Jackson County jury awards $2.1 million in age case

On March 17, 2010, a jury in Jack­son Coun­ty in West Vir­ginia award­ed Jerold John Rice Jr. rough­ly $2.1 mil­lion in an age dis­crim­i­na­tion case against The Burke-Par­sons-Bowl­by Cor­po­ra­tion, Stel­la-Jones US Hold­ings Cor­po­ra­tion, and Stel­la-Jones, Inc., tried in Judge Thomas C. Evans III’s court.

Mr. Rice was rep­re­sent­ed by Mark Atkin­son and Paul Framp­ton at Atkin­son & Polak, PLLC, and the defen­dants were rep­re­sent­ed by Roger Wolfe at Jack­son & Kel­ly PLLC in Charleston, and Kevin Hyde at Foley & Lard­ner, LLP in Jack­sonville, Flori­da.

Here is a quick run-down of what was award­ed in the case:

  • Back pay: $142,659 award­ed by jury.
  • Pre-judg­ment inter­est: $11,791.84 from date of ter­mi­na­tion through trial.
  • Front pay: $1,991,332.00 award­ed by jury (from rough­ly age 48 through retire­ment age at 67).
  • Emo­tion­al dis­tress: $0.
  • Puni­tive dam­ages: Jury did not answer ques­tion affir­ma­tive­ly which would have allowed award of puni­tive damages.
  • Total judg­ment based on jury’s ver­dict: $2,145,782.84, plus post-judg­ment inter­est on that amount at 7% per annum.
  • Attor­neys’ fees: $117,235 award­ed by judge (based on $450 an hour for Mark Atkin­son and $300 per hour for Paul Framp­ton).
  • Lit­i­ga­tion expens­es: $20,324.16 award­ed by judge.
  • Total award: $2,283,342.00 (based on jury ver­dict, pre-judg­ment inter­est, attor­neys’ fees and expens­es) plus post-judg­ment inter­est at 7% per annum.

The Rice case illus­trates the risk employ­ers face when they ter­mi­nate an old­er, good, long-stand­ing employ­ee, and replace him or her with a much younger per­son with lit­tle or no expe­ri­ence for the employer.

What Happened?

Mr. Rice at the time of his ter­mi­na­tion (in 2009) was age 47 and had worked for Burke-Par­sons-Bowl­by Cor­po­ra­tion for 24 years. When Mr. Rice was ter­mi­nat­ed he was the cor­po­rate controller.

In the year or so pre­ced­ing Mr. Rice’s ter­mi­na­tion, in 2008, Burke-Par­sons-Bowl­by Cor­po­ra­tion was acquired by Stel­la-Jones, Inc.  Then on Feb­ru­ary 16, 2009, the com­pa­ny hired Jere­my Stover, age 27–28, as the “assis­tant con­troller” under Mr. Rice. There was tes­ti­mo­ny that Mr. Rice was instruct­ed to teach Mr. Stover “every­thing you do”. There was also evi­dence that, between the time of the deci­sion to ter­mi­nate Mr. Rice and the actu­al ter­mi­na­tion, there was a sig­nif­i­cant com­pa­ny audit which required Mr. Rice’s expertise.

The kick­er for the defen­dants was that appar­ent­ly the com­pa­ny made the deci­sion to ter­mi­nate Mr. Rice’s employ­ment before hir­ing younger Mr. Stover. So the sequence of events, accord­ing to evi­dence pre­sent­ed by Mr. Rice,  was: pur­chase of the old com­pa­ny by Stel­la-Jones, deci­sion to ter­mi­nate 47-year-old Mr. Rice (with 24 years of expe­ri­ence), hir­ing of Mr. Stover at age 27 or 28 (with no expe­ri­ence with the com­pa­ny), get­ting Mr. Rice to train Mr. Stover, com­plet­ing the com­pa­ny audit with Mr. Rice’s help, then fir­ing 47-year-old Mr. Rice, and then get­ting 28 year old Mr. Stover to take over the bulk of Mr. Rice’s job.

Evidence of Discrimination: Conflicting Explanations for the Termination

For prov­ing an age dis­crim­i­na­tion claim (or, for that mat­ter, any oth­er kind of dis­crim­i­na­tion claim), one of the stan­dard threads of evi­dence which sup­ports an infer­ence of dis­crim­i­na­tion is proof of con­flict­ing expla­na­tions by the employ­er for the rea­son for the employ­ment decision.

In Mr. Rice’s case, there were alle­ga­tions that the com­pa­ny had con­flict­ing ver­sions of why it ter­mi­nat­ed Mr. Rice. The com­pa­ny orig­i­nal­ly claimed that part of the rea­son for ter­mi­nat­ing Mr. Rice was his inad­e­quate per­for­mance qual­i­ty. Then lat­er, the com­pa­ny appar­ent­ly shift­ed to the expla­na­tion that it sim­ply elim­i­nat­ed Mr. Rice’s position.

Evidence of Discrimination: Replacing an Older Worker with a Substantially Younger One

Anoth­er type of evi­dence which is con­sid­ered to be sup­port­ive of a find­ing of dis­crim­i­na­tion is the replace­ment of the plain­tiff-employ­ee in the “pro­tect­ed class” with an employ­ee out­side the pro­tect­ed class.

For his age dis­crim­i­na­tion claim, Mr. Rice was age 47, which meant that he sat­is­fied the statu­to­ry require­ment for being pro­tect­ed on the basis of age — he was 40 years or old­er. Mr. Rice was replaced by an employ­ee sub­stan­tial­ly younger than him, Mr. Stover at age 27 or 28.

The courts have con­clud­ed that, for age dis­crim­i­na­tion, the infer­ence of dis­crim­i­na­tion aris­es if the replace­ment employ­ee is “sub­stan­tial­ly younger” than the plain­tiff, even if the replace­ment employ­ee is over 40 years of age. In Mr. Rice’s case there were no com­pli­ca­tions on that issue — Mr. Stover was both under age 40 and sub­stan­tial­ly younger than Mr. Rice (about 20 years younger).

There was a dis­pute over whether Mr. Stover in fact “replaced” Mr. Rice, but the fol­low­ing facts were in the record which could have sup­port­ed the con­clu­sion that the younger Mr. Stover replaced the old­er Mr. Rice: Mr. Rice was the cor­po­rate con­troller, a deci­sion was made to ter­mi­nate Mr. Rice, Mr. Stover was hired as “assis­tant con­troller”, man­age­ment instruct­ed Mr. Rice to teach Mr. Stover “every­thing you do”, the com­pa­ny then con­duct­ed a sig­nif­i­cant audit (with Mr. Rice’s assis­tance) to a suc­cess­ful con­clu­sion, the com­pa­ny then ter­mi­nat­ed Mr. Rice, and Mr. Stover took over most of Mr. Rice’s job responsibilities.

Evidence of Discrimination: Contradicting the Employer’s Explanation

There is a third type of evi­dence which sup­ports a find­ing of dis­crim­i­na­tion: the con­tra­dict­ing of the com­pa­ny’s stat­ed legit­i­mate, non-dis­crim­i­na­to­ry rea­son for ter­mi­nat­ing the plaintiff.

The defen­dants’ ini­tial descrip­tion of the rea­son for ter­mi­na­tion was inad­e­quate job per­for­mance. Mr. Rice pre­sent­ed evi­dence that he had an excel­lent work his­to­ry with the com­pa­ny that was free of any dis­ci­pli­nary action.

Damages

The award­ed dam­ages in this case are inter­est­ing. First, the jury award­ed $142,659 in “back pay”, which is essen­tial­ly lost income and lost ben­e­fits from the point of ter­mi­na­tion through the date of trial.

The jury also award­ed $1,991,332 for “front pay”, which is future (from date of tri­al) lost income through some point in the future. An expert wit­ness for Mr. Rice cal­cu­lat­ed future lost income through a pro­ject­ed retire­ment age of 67. The expert’s cal­cu­la­tion of front pay was as I under­stand it, near­ly exact­ly what the jury award­ed: $1,991,332.

So the jury award­ed Mr. Rice front pay from his age at tri­al, which appears to me to have been age 48 or 49, through retire­ment at age 67 — a total of about 19 years.

An impor­tant facet of the jury’s deci­sion on front pay is that it did not reduce its award of front pay by the amount of any income Mr. Rice would be receiv­ing in the future from employ­ment after ter­mi­na­tion by the defen­dants. West Vir­ginia has a some­what unusu­al char­ac­ter­is­tic on awards of lost income, both past and future. Ordi­nar­i­ly, and this is also true in West Vir­ginia, the jury would be instruct­ed to take its pre­dic­tion of lost income in the future (which is cal­cu­lat­ed by pro­ject­ing the annu­al salary and ben­e­fits for the plaintiff’s last posi­tion with the defen­dant), and then sub­tract what the jury believes will be income to be earned by the plain­tiff dur­ing that same time future time period.

For exam­ple, let’s assume that the jury knows that the plain­tiff was mak­ing $100,000 a year in the last posi­tion for the defen­dant-employ­er that ter­mi­nat­ed the plain­tiff. In award­ing front pay, the jury would first project out that $100,000 each of the next 10 years. Let’s also assume that at time of tri­al the plain­tiff is mak­ing $50,000 year at a new job (after his ter­mi­na­tion), and that job is like­ly to con­tin­ue into the future. (For these cal­cu­la­tions, I am ignor­ing the prospects of pay rais­es, I am ignor­ing ben­e­fits, and I am ignor­ing any effort to apply a “dis­count rate” to the future income amounts.) Under this sce­nario, the jury would sub­tract the $50,000 of annu­al wage from the $100,000 fig­ure, for a year­ly front pay dam­age amount of $50,000, and a total front pay award of $500,000 (10 years at $50,000 per year).

Under West Vir­ginia law, how­ev­er, the jury is instruct­ed that if it con­cludes ter­mi­na­tion of the plain­tiff was “mali­cious”, then the jury should not sub­tract the sub­se­quent replace­ment  income (in my exam­ple, $50,000 a year), and should instead award  a “flat” amount for front pay con­sist­ing sole­ly of the cal­cu­la­tion of the annu­al wage from the employee’s income with the defen­dant (in my exam­ple, $100,000 per year). That would mean an award of $100,000 per year, and a total award of $1,000,000 (10 years times $100,000).

Obvi­ous­ly, the “mal­ice” rule makes a big dif­fer­ence. In the exam­ple I pro­vid­ed above, with 10 years of future lost income, wages of $100,000 per year at the defen­dant, and wages of $50,000 per year in a sub­se­quent job:  the plain­tiff would receive $500,000 in front pay dam­ages if the ter­mi­na­tion was not mali­cious. How­ev­er, the plain­tiff would receive $1,000,000 in front pay if the jury con­cludes that the ter­mi­na­tion was mali­cious and does not sub­tract any of the replace­ment (post-defen­dant) job income.

In Mr. Rice’s case, my under­stand­ing is the jury award­ed the $1,991,332 in front pay based on a con­clu­sion of mal­ice, so the jury did not sub­tract any income Mr. Rice might receive in the future from any sub­se­quent employment.

The West Vir­ginia Supreme Court most recent­ly reit­er­at­ed this “mali­cious ter­mi­na­tion rule” for back and front pay awards in Peters v. Rivers Edge Min­ing, Inc., 224 W. Va. 160, 680 S.E.2d 791, 814–815 (2009).

Inter­est­ing­ly, the jury did not award any com­pen­sa­tion for emo­tion­al dis­tress.

The jury also did not award any puni­tive dam­ages.

Thus, when you add pre­judg­ment inter­est to the award of back pay (and the pre­judg­ment inter­est was $11,791.84), the total amount of dam­ages that the judge award­ed based on the jury’s ver­dict was $2,145,782.84

Attorney’s Fees and Expenses

Because Mr. Rice was the pre­vail­ing par­ty in an age dis­crim­i­na­tion claim under the West Vir­ginia Human Rights Act, he also received from the tri­al judge after the jury’s ver­dict an award of rea­son­able attorney’s  fees and expens­es. The lead lawyer for Mr. Rice was Mark Atkin­son, who has been prac­tic­ing about 27 years. Mr. Atkin­son has tried sev­er­al employ­ment dis­crim­i­na­tion and oth­er wrong­ful dis­charge cas­es in West Vir­ginia to jury ver­dicts of rough­ly $1-$3 mil­lion each. The tri­al court approved an hourly rate for Mr. Atkin­son of $450. Paul Framp­ton also tried the case with Mr. Atkin­son, has been prac­tic­ing law for about 7 years, and the tri­al judge approved an hourly rate for Mr. Framp­ton of $300. The tri­al court also approved an hourly rate of $125 for para­le­gal time.

The tri­al court then mul­ti­plied those hourly rates by the num­ber of hours expend­ed by the lawyers and their legal assis­tants, and award­ed attor­neys’ fees of $117,235. The tri­al court also award­ed expens­es incurred by coun­sel for Mr. Rice in the amount of $20,324.16.

Post-Judgment Interest

Under West Vir­ginia law “post-judg­ment inter­est” would then be applied to all of those award­ed amounts at the rate of 7% per year.

Appeal?

The defen­dants have filed a motion for new tri­al, and I don’t have sig­nif­i­cant infor­ma­tion on that motion (it has not been ruled upon as of this date). Giv­en the size of the ver­dict, it seems like­ly that an appeal will fol­low, assum­ing the tri­al court does not grant the motion for new trial.

Drew M. Capuder
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