ELIZABETH MARQUEZ v. TE CONNECTIVITY CORPORATION (2022)

ORDER

On this day the Court considered Defendant's Motion for Mistrial or Alternatively for New Trial (“Motion for New Trial”), ECF No. 76, Plaintiff's Motion for an Award of Front Pay Damages (“Motion for Front Pay”), ECF No. 111, and the parties' proposed final judgments and briefs in support. For the following reasons, the Motion for New Trial is DENIED, the Motion for Front Pay is GRANTED IN PART and DENIED IN PART, and the Court will issue its final judgment as a separate document.

I. BACKGROUND

This case involves Plaintiff's claims that Defendant denied her a reasonable accommodation and terminated her employment in violation of state and federal anti-disability discrimination laws. This Order assumes familiarity with the facts and procedural history of this case and recites them only insofar as they are germane to the post-trial issues.

A. Procedural History

A jury trial was held from August 12 to August 24, 2022. See Minute Entries, ECF Nos. 61, 62, 65, 66, 67, 75, 77, 80. The trial proceeded in two phases, first as to liability and then as to damages. Following Plaintiff's presentation of evidence in the liability phase, Defendant moved for judgment as a matter of law, arguing that Plaintiff had not carried her burden to show that she was a qualified individual with a disability within the meaning of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. Aug. 17, 2022, Trial Tr. (“Day 4 Tr.”) 472:11–476:19, ECF No. 121; Mot. J. Matter Law, ECF No. 64. Plaintiff also made an oral motion for judgment as a matter of law, arguing that Defendant had a policy that required Plaintiff to go back to work only if she could go back at full duty, and that this policy constituted a per se violation of the ADA. Day 4 Tr. 476:21–22; 481:16–485:15. The Court denied both motions from the bench. Id. at 503:2–8.

Defendant then presented its case. After resting, Defendant renewed its motion for judgment as a matter of law, which the Court again denied. Aug. 18, 2022, Trial Tr. (“Day 5 Tr.”) 625:2–636:23, ECF No. 122. On August 18, the jury returned its liability verdict, finding that Defendant (1) failed to reasonably accommodate Plaintiff's disability, (2) terminated Plaintiff because of her disability, and (3) retaliated against Plaintiff “for alerting Defendant to her reasonable belief that Defendant was engaging in possibly unlawful discrimination.” Verdict Form (“Liability Verdict”) 1–2, ECF No. 73. But the jury found that Defendant did not terminate Plaintiff “but for her request for a reasonable accommodation.” Id. at 1.

The trial then proceeded to the damages phase. After the jury reached a verdict, but before the jury came into the courtroom for its verdict to be announced, Defendant made an oral motion for a mistrial, or in the alternative, for a new trial. Aug. 24, 2022, Trial Tr. (“Day 8 Tr.”) 855:7–859:18, ECF No. 125. Defendant's motion was based on Plaintiff's admission, during the damages phase of the trial, that she had received Social Security benefits, a fact that was purportedly unknown to Defendant until the time of the admission. See id. The Court took the oral motion under advisement and explained that it would receive the jury's damages verdict and then issue an order for the parties to submit written briefs. Id. at 865:3–13. The jury then returned its damages verdict, awarding Plaintiff $326,250.00 for past mental anguish, $1,875.00 for future mental anguish, $143,589.04 in back wages and benefits, and $3,262,500.00 in punitive damages. Verdict Form (“Damages Verdict”) 1–2, ECF No. 87.

The Court then set a schedule for post-trial briefing. Aug. 24, 2022, Order, ECF No. 78. Defendant filed the Motion for New Trial, to which Plaintiff filed a Response (“New Trial Response”), ECF No. 109, and Defendant filed a Reply (“New Trial Reply”), ECF No. 115. Plaintiff filed the Motion for Front Pay, to which Defendant filed a Response (“Front Pay Response”), ECF No. 116, and Plaintiff filed a Reply (“Front Pay Reply”), ECF No. 117. The parties also submitted proposed final judgments with briefs in support, primarily addressing the manner in which damages caps should be applied and interest should be assessed. See Pl.'s Br. Support Proposed Damages J. (“Pl.'s Damages Br.”), ECF No. 108; Def. Submission Proposed Final J. (“Def.'s Damages Br.”), ECF No. 110.

B. Plaintiff's Social Security Benefits

The crux of Defendant's Motion for New Trial is when Defendant became aware of Plaintiff's receipt of Social Security benefits. See Mot. New Trial.

1. Discovery

Over two years prior to trial, on June 9, 2020, Defendant served Plaintiff with a set of Requests for Production, which included a request for:

All charges, forms, memoranda, correspondence, and other documents relating to any complaints, charges, inquiries, or requests filed or reported by you that relate to Defendant, or any related person or entity including, but not limited to, any communications to or from [a number of state and federal government entities including the] Social Security Administration ․

Mot. New Trial Ex. A, at 3, ECF No. 76-1. Plaintiff responded: “Objection. Vague and grossly overbroad both in breadth and time. Even so as understood by Plaintiff, see documents produced.” New Trial Reply Ex. A, at 3, ECF No. 115-1. The only relevant documents produced were a series of forms and correspondence sent to Plaintiff on November 17, 2018, by The Advocator Group, “a nationwide advocacy organization dedicated to helping individuals apply for and obtain Social Security Disability Insurance.” See New Trial Reply Ex. B, ECF No. 115-2.

Defendant also propounded a set of interrogatories on Plaintiff, which included the following requests:

Identify and describe with specificity each source of income or financial support you have had since your termination by Defendant, the date, or dates upon which such income or financial support was received, and identify the amount, in terms of monthly or other periodic payments, of income or financial support from each source identified.

․

Describe specifically and in detail all steps you have taken in an effort to mitigate any of the damages which you claim to have suffered as a result of any act or omission by or on behalf of Defendant.

New Trial Reply Ex. D, at 6–7, ECF No. 115-4. Plaintiff responded to each request, respectively:

Objection. Collateral Source Rule. As to the unobjected to portion of this interrogatory, Plaintiff answers: see Plaintiff's production.

․

Objection. Vague. Even so, as best understood by Plaintiff, Plaintiff has been attempting to find employment.

Id.

Defendant claims—and Plaintiff does not dispute—that Plaintiff never supplemented her discovery responses with any statements or documents indicating that she applied for or received Social Security benefits, at any time prior to trial. See New Trial Reply 2; see generally New Trial Resp. During supplemental discovery served on Defendant approximately one week prior to the start of trial, Plaintiff served Defendant with pay stubs, showing that she was working and earning wages at a dollar store. See New Trial Reply Ex. C, ECF No. 115-3. There is no indication in the record that the parties ever communicated regarding Plaintiff's objections to Defendant's discovery requests. No motions to compel were ever filed.

2. Trial

During trial, the subject of Social Security benefits first arose during the liability phase. On the fourth day of trial, Defense counsel questioned Defendant's corporate representative, Ms. Darlene Lehman, as follows:

Q: Did [Plaintiff] receive long-term disability benefits, if you know?

A: She did.

Q: How long did those continue?

A: I think it was about two years.

Q: Do you know what caused those long-term disability benefits to end?

A: When I read the file, I believe she was approved for SSDI, Social Security Disability Insurance. There was an offset.

Q: Am I right in understanding that after [Plaintiff] was placed on leave that she went from short-term disability to long-term disability to SSDI?

A: Yes.

Day 4 Tr. 469:2–17. On the previous day, while discussing her receipt of employer-sponsored long-term disability insurance, Plaintiff herself had alluded to the SSDI offset without explicitly mentioning Social Security. Aug. 16, 2022, Trial Tr. (“Day 3 Tr.”) 240:13–14 (“I received the long-term disability benefits, but I owe them $14,000.”), ECF No. 120.

Social Security benefits were not mentioned again until the damages phase. The Court conferred with the attorneys at side-bar, out of the jury's hearing, regarding Defendant's objection to a line of questioning from Plaintiff's counsel about what Plaintiff would have earned if she had continued to work for Defendant. Aug. 23, 2022, Trial Tr. (“Day 7 Tr.”) 751:23–754:21, ECF No. 124. Defense counsel was the first to broach Social Security benefits, stating to Plaintiff's counsel, “You're also not including what she would have—is receiving on her Social Security Disability.” Id. at 753:12–13. Plaintiff's counsel responded, “She didn't get Social Security Disability.” Id. at 753:14–15.

Later on that day, Defense counsel asked Plaintiff, “At the end of your long-term disability benefits, you were also aware that you would be eligible for assistance in receiving Social Security disability benefits, too, correct?” Id. at 776:4–6. Plaintiff responded, “Yes.” Id. at 776:7. Defense counsel questioned Plaintiff about whether she was aware that her employer-sponsored long-term disability benefits would be subject to an offset if she were approved for disability benefits from the Social Security Administration. See id. at 776:4–778:12. Plaintiff expressed confusion. See id. Plaintiff's counsel then objected on relevancy grounds, contending that Plaintiff “never actually applied for and never received any Social Security Disability benefits from the federal government.” Id. at 778:19–21. Because there was documentary evidence in the record that Plaintiff had at least initiated the process of seeking Social Security benefits—the same documents Plaintiff had produced years earlier in discovery—the Court overruled the objection. Id. at 778:25–779:23.

Cross-examination of Plaintiff resumed, and Plaintiff soon testified that she had continued to receive disability benefits of some kind after her employer-sponsored benefits ended. Id. at 786:18–21. Defense counsel asked whether those were Social Security benefits, and Plaintiff's counsel objected, stating that she “never received Social Security Disability benefits.” Id. at 786:22–787:1. The Court overruled the objection. Id. at 788:14–18. Defense counsel then asked Plaintiff, “You signed off on the paperwork to initiate the claim for Social Security Disability benefits, true?” Id. at 789:2–3. Plaintiff responded, “Yes; my signature is there.” Id. at 789:7.

On re-direct, Plaintiff's attorney sought to clarify that Plaintiff never actually received benefits, but Plaintiff insisted that she had:

Q: Isn't it true that you never received Social Security Disability benefits from the United States government, federal government? That would be true, correct, ma'am?

A: I did receive.

Id. at 798:13–16. Plaintiff's attorney confirmed Plaintiff's understanding of the distinction between employer-sponsored short-and long-term disability insurance, on the one hand, and government-sponsored Social Security disability benefits, on the other. See id. at 798:17–799:7. And then he asked again:

Q: Ma'am, it is true you never received Social Security Disability benefits from the United States government? That would be true, correct?

A: No.

Id. at 799:8–11.

Defendant's corporate representative, Lehman, also testified about Plaintiff's receipt of Social Security benefits during the damages phase of the trial.

A: I don't believe she received the $1,200 [in employer-sponsored long-term disability benefits] every single month.

Q: Why is that?

A: Because the benefit also is offset by Social Security Disability Insurance benefits. When that was awarded, at that point the benefit amount was reduced to $100 a month, which is guaranteed through the policy regardless of what the offset is.

Q: You seen [sic] that Ms. Marquez was approved for SSDI?

A: Yes․ [T]hat was on the claim, the [long term disability insurance] claim. The application and the approval I believe happened in September 2019.

Id. at 814:21–815:10.

After a line of questioning about how Social Security offsets work, Defense counsel asked, “When was it that Ms. Marquez began receiving SSDI benefits?” Id. at 815:13–816:8. Plaintiff's attorney objected on hearsay grounds, and the Court called the lawyers to a side-bar, where Defense counsel explained that Lehman obtained the information about Plaintiff's Social Security benefits “through the MetLife portal.” Id. at 816:17. Defense counsel later represented to the Court that Lehman did not discover that Plaintiff had received Social Security benefits until she checked that internet portal during trial. Day 8 Tr. 864:1–7.

II. MOTION FOR NEW TRIAL

Defendant asks the Court to “declare a mistrial or alternatively order a new trial based on the newly discovered evidence [of Plaintiff's Social Security benefits].” Mot. New Trial 4. But it is unclear what, if any, practical difference exists between a declaration of a mistrial and an order for a new trial. Defendant does not explain what a declaration of mistrial would entail. See Mot. New Trial; New Trial Reply. Nor does Defendant reference any case law or other authority whatsoever to support or elucidate its mistrial request. See id.

“Mistrials” do not appear in the parlance of the Federal Rules of Civil Procedure, which instead describe motions for judgment as a matter of law and motions for a new trial. See Fed. R. Civ. P. 50, 59, 60. In the relatively few circumstances in which civil “mistrial” requests have been considered by courts in the Fifth Circuit, they have been held untimely unless they are made “before the jury renders its verdict.” See GE Cap. Com., Inc. v. Worthington Nat'l Bank, No. 3:09-cv-572-L, 2012 WL 2159185, at *3 (N.D. Tex. June 13, 2012) (collecting authorities). Both because Defendant provides no authority on which the Court could grant a mistrial after the jury has rendered a verdict, and because Defendant does not explain how its request for a mistrial is any different from its request for a new trial, the Court considers only whether Defendant is entitled to a new trial under Federal Rule of Civil Procedure 59.

A. Standard

After a jury trial, Courts may grant a new trial “for any reason for which a new trial has heretofore been granted in an action at law in federal court.” Fed. R. Civ. P. 59(a)(1)(A). “A district court has discretion to grant a new trial based on newly discovered evidence.” Najor v. Plaquemines Clay Co., Civ. Action No. 13-5000, 2018 WL 4853722, at *3 (E.D. La. Oct. 5, 2018) (citing Johnston v. Lucas, 786 F.2d 1254, 1257 (5th Cir. 1986)). “In deciding whether newly discovered evidence is sufficient to warrant a new trial,” district courts “consider whether the evidence: (1) would probably have changed the outcome of the trial; (2) could have been discovered earlier with due diligence; and (3) is merely cumulative or impeaching.” Diaz v. Methodist Hosp., 46 F.3d 492, 495 (5th Cir. 1995) (collecting cases).

B. Analysis

The second factor is dispositive here. In Longden v. Sunderman, 979 F.2d 1095 (5th Cir. 1992), the Fifth Circuit affirmed the district court's denial of a party's Rule 60(b)(2) motion for relief from judgment on newly discovered evidence grounds. See id. at 1102–03. Like Rule 59(a) motions, Rule 60(b)(2) motions require a showing that the movant exercised due diligence to discover the evidence prior to the trial or hearing from which the judgment arose. Compare id., with Diaz, 46 F.3d at 495. In Longden, it was undisputed that the movant had the purportedly newly discovered evidence “in her files” prior to the hearing at issue. 979 F.2d at 1103. Even though it took the movant twenty-five days of searching through those files after the hearing to find the evidence, the Fifth Circuit held the district court was within its discretion to find that the movant had not exercised due diligence in searching her own files before the hearing. Id.

Here, as in Longden, it is undisputed that Defendant had evidence of Plaintiff's receipt of Social Security benefits in its files prior to trial. While Defendant claims in conclusory fashion that it “could not have discovered the evidence until after the jury rendered its verdict on liability,” Mot. New Trial 3, it was during the liability phase that Defendant's corporate representative first opened the MetLife portal and noticed that Plaintiff's long-term disability benefits were subject to a Social Security offset, Day 4 Tr. 469:2–17. More importantly, Defendant provides no explanation of what prevented its representatives from simply opening the portal and ascertaining this information prior to trial. The failure to do so shows a lack of due diligence. See Longden, 979 F.2d at 1103; Ray v. Fedex Corp. Servs., Inc., 668 F. Supp. 2d 1063, 1070 (W.D. Tenn. 2009) (“[T]he mere fact that plaintiff did not discover a letter in its files in time for trial [is] not sufficient to grant a new trial on grounds of newly discovered evidence.” (citing Lewis v. Kepple, 185 F. Supp. 884, 888 (W.D. Pa. 1960)); Lans v. Gateway 2000, Inc., 110 F. Supp. 2d 1, 5 (D.D.C. 2000) (collecting cases) (“Evidence in the possession of the party before the judgment was rendered is not newly discovered evidence that affords relief.” (cleaned up)).

Defendant argues that its discovery requests show that it diligently pursued information from Plaintiff regarding whether she received Social Security benefits. New Trial Reply 1–3. Certainly, Defendant's June 2020 request for “any communications to or from [inter alia, the] Social Security Administration” would encompass documentation showing Plaintiff's receipt of Social Security benefits. See Mot. New Trial Ex. A, at 3. And even if Plaintiff was not, at that time, receiving Social Security, she was under an ongoing obligation to timely supplement her response to Defendant's request for production as additional documents became available. See Fed. R. Civ. P. 26(e)(1)(A). But although Plaintiff produced some documents responsive to the request, she also objected to it as overbroad. See New Trial Reply Ex. A, at 3. Defendant never filed a motion to compel a complete response to the request, and the record does not indicate that Defendant took any steps whatsoever to follow up with Plaintiff and request additional records. This same pattern played out with the interrogatories referenced by Defendant in its Motion for New Trial: Plaintiff objected and provided a limited response subject to the objection. See New Trial Reply Ex. D, at 6–7. And there is no indication that Defendant ever followed up or filed a motion to compel.

Merely sending a discovery request and trusting that the response is complete does not show the diligence required to carry a motion for a new trial. In Diaz, the Fifth Circuit upheld the district court's denial of a new trial on newly discovered evidence grounds. 46 F.3d at 494. The new evidence was a doctor's affidavit that contradicted the testimony that was given by two other doctors during depositions and at trial. Id. at 494–95. The movant argued that she had been diligent because, until after the trial concluded, “she had no reason to question the veracity of the statements the [other] doctors gave at deposition and that she accepted their story as true.” Id. at 496. The Fifth Circuit rejected this argument, finding that the movant was “unable to demonstrate that, had she vigorously pursed this avenue of discovery prior to trial, she would have failed to uncover evidence similar to the statements contained in the [ ] affidavit.” Id.

Defendant's argument for a new trial is even weaker than the Diaz movant's unsuccessful argument, for at least two reasons. First, while the doctors in Diaz responded fully to the deposition questions, here, Plaintiff responded to Defendant's request for production subject to an objection.¹ Thus, unlike the movant in Diaz, Defendant was on clear notice that it had not received complete information, even taking Plaintiff's response at face value, and so had greater reason to investigate the matter further or move to compel a complete response. See id. at 496; Waul v. Coughlin, 177 F.R.D. 173, 178 (S.D.N.Y. 1997) (denying motion for new trial where movant “made no request to compel compliance with outstanding discovery requests or to reopen discovery until after the completion of the trial”).

Second, the evidence at issue in Diaz concerned whether certain laboratory tests could have been ordered by a hospital on the weekend—information that the movant, the hospital's former patient, could not readily confirm or deny with her own records. 46 F.3d at 494–95. But here, Defendant could easily ascertain whether Plaintiff was receiving Social Security benefits through its own records—namely, the MetLife portal. For both of these reasons, the Diaz court's statement that “a prudent litigant would independently investigate [the] issue and be less than willing to adopt blindly the statements of the opposing party” applies with even greater force in this case. See id. at 496.

In sum, that Defendant had access to files showing that Plaintiff was receiving Social Security benefits but did not review those files until trial was underway, shows a lack of due diligence. See Longden, 979 F.2d at 1103. And that Defendant had requested but not received documents related to Plaintiff's communications with the Social Security Administration does not overcome this lack of diligence, absent any effort to compel Plaintiff's compliance with its discovery request or independently verify whether Plaintiff was receiving benefits. See Diaz, 46 F.3d at 496; Waul, 177 F.R.D. at 178. Defendant's lack of due diligence, alone, warrants the denial of Defendant's Motion for New Trial. See Longden, 979 F.2d at 1103 (“This fact alone is enough to deny the motion.”); Koon v. Cain, 277 F. App'x 381, 389 n. 27 (5th Cir. 2008) (citing United States v. Freeman, 77 F.3d 812, 817 (5th Cir. 1996)).

This conclusion is only reinforced by consideration of the other factors—whether the evidence is cumulative and whether it would probably have changed the outcome at trial. See Diaz, 46 F.3d at 495. As discussed, Defendant was able to elicit testimony at both the liability and damages stages, from its own corporate representative and from Plaintiff, that she received disability benefits from the Social Security Administration. And during closing argument in the damages phase, Defendant's counsel urged the jury to consider her receipt of those benefits when it assessed damages. Day 7 Tr. 846:14 –847:7. The jury nevertheless returned verdicts in Plaintiff's favor on liability and damages. Concrete, documentary evidence showing Plaintiff's receipt of Social Security benefits certainly could have influenced the jury's deliberations, but it would be at least partly cumulative of the testimonial evidence already received, and the Court cannot say that it “would probably have changed the outcome of the trial.” See Diaz, 46 F.3d at 495.² Thus, while Defendant's lack of diligence is dispositive, the other factors also weigh against granting relief. For these reasons, the Motion for New Trial is denied.

III. MOTION FOR FRONT PAY

The Court next considers Plaintiff's request for an award of front pay.

A. Standard

Front pay is an equitable remedy to be determined by the district court at the conclusion of a jury trial. Mota v. Univ. of Tex. Hous. Health Sci. Ctr., 261 F.3d 512, 526–27 (5th Cir. 2001); Walther v. Lone Star Gas Co., 952 F.2d 119, 127 (5th Cir. 1992).³ The decision whether to award front pay, as well as the duration and amount of front pay, is a discretionary decision over which district courts are given “wide latitude.” Downey v. Strain, 510 F.3d 534, 544 (5th Cir. 2007) (quoting Sellers v. Delgado Coll., 781 F.2d 503, 505 (5th Cir. 1986)). Factors to consider 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) the myriad other non-discriminatory factors which could validly affect the employer/employee relationship.” Id. (citing Reneau v. Wayne Griffin & Sons, Inc., 945 F.2d 869, 871 (5th Cir. 1991)).

B. Analysis

Plaintiff seeks just over five years of front pay, from the time of trial through the end of 2027, calculated at the value she proposed for her 2018 lost wages and benefits: $42,124.64 per year, apparently rounded to the nearest dollar, for a total of $225,395.00. Mot. Front Pay 4.

1. Whether Any Award of Front Pay is Warranted

Defendant argues that any front pay award is unwarranted, for three reasons. Front Pay Resp. 1. Defendant's first argument is that Plaintiff's receipt of Social Security benefits would render any front pay award an inequitable “windfall,” which the Court should not allow. Id. at 5. Defendant references Morse v. JetBlue Airways Corp., No. 09-CV-5075, 2014 WL 2587576 (E.D.N.Y. June 9, 2014), in which the court denied an award of front pay to a plaintiff receiving Social Security benefits. Id. at *5. The Morse court reasoned that front pay is “available only where a plaintiff is able to work, but the receipt of SSDI benefits is a determination that an individual cannot engage in any substantial gainful work that exists in the national economy, due to a sufficiently severe mental or physical impairment.” Id.

However, Morse is in tension with Cleveland v. Policy Management Systems Corporation, 526 U.S. 795 (1999). The Cleveland Court held that Social Security disability benefits recipients are not automatically foreclosed from pursuing ADA claims. 526 U.S. at 807. And Cleveland reached this conclusion despite recognizing the same apparent conflict between SSDI and ADA eligibility identified by the Morse court. See id. at 797–98. But Cleveland treated the SSDI-ADA interplay differently, finding that there are “many situations in which an SSDI claim and an ADA claim can comfortably exist side by side.” Id. at 803. The Court explained that to be a qualified individual with a disability under the ADA, a plaintiff must be able to perform the essential functions of their job, either with or without a reasonable accommodation. Id. But to decide whether to award Social Security benefits, the Social Security Administration considers only whether an applicant cannot work, generally. Id. It “does not take the possibility of a ‘reasonable accommodation’ into account, nor need an applicant refer to the possibility of reasonable accommodation when she applies for SSDI.” Id.

The Morse court briefly acknowledged the Cleveland decision and described its essential holding. 2014 WL 2587576 at *5 (citing Cleveland, 526 U.S. at 807). Morse then distinguished Cleveland in a cursory manner, simply noting that Cleveland concerned the question of ADA liability, as opposed to front pay damages. Id. This distinction is unpersuasive. Morse offered no principled basis for why Cleveland's essential logic should not extend from liability to damages. To allow a Social Security benefits recipient to pursue an ADA claim on the grounds that they can work, so long as they are accommodated, but then deny them front pay on the grounds that they cannot work, without any regard to whether they could work with an accommodation, would be incongruous. Compare Cleveland, 526 U.S. at 803, with Morse, 2014 WL 2587576, at *5. Tellingly, Morse relied heavily on Second Circuit and New York district court decisions that predated Cleveland to support its denial of a front pay award. See Morse, 2014 WL 2587576, at *4–5. Because it is inconsistent with Supreme Court precedent, the Court declines to follow Morse.

Neither party references a Fifth Circuit decision addressing this precise issue, and the Court finds none. However, numerous courts within the Fifth Circuit have grappled with a related issue: the extent to which front pay awards should be offset by Social Security benefits. See, e.g., Shapiro v. Kelly, No. 97-30183, 1998 WL 197793, at *8 (5th Cir. Apr. 1, 1998); Sprague v. Ed's Precision Mfg., LLC, No. H-20-2604, 2021 WL 4480749, at *2 (S.D. Tex. Sept. 30, 2021); Kirkwood v. Inca Metal Prods. Corp., No. 3:04-CV-226-D, 2008 WL 245941, at *10 (N.D. Tex. Jan. 30, 2008). While the decision rests with the district court's discretion, “[m]ost courts have refused to deduct such benefits as social security and unemployment compensation” from lost wages awards, including back pay and front pay. See Sprague, 2021 WL 4480749, at *2 (quoting Guthrie v. J.C. Penny Co., 803 F.2d 202, 209 (5th Cir. 1986)). That courts regularly decline to offset Social Security benefits from front pay awards undermines Defendant's argument that Plaintiff's receipt of benefits should prevent her from obtaining a front pay award altogether.

The heart of the matter is that the jury found that Defendant failed to reasonably accommodate Plaintiff and instead wrongly terminated her because of her disability. See Liability Verdict 1. This finding necessitated a determination that Plaintiff could have performed the essential functions of her job if she had been given an accommodation. See Court's Instructions to the Jury 17, ECF No. 71. The SSA has since determined that Plaintiff's disability renders her unable to work under most circumstances, though without expressing an opinion one way or another on what the jury decided here—that she could work, so long as she was given a reasonable accommodation. Because the jury found Plaintiff could have continued to work for Defendant if she had been reasonably accommodated, her subsequent receipt of Social Security benefits does not preclude a front pay award. Cf. Cleveland, 526 U.S. at 807. Nor does it warrant a reduction of that award. See Sprague, 2021 WL 4480749, at *2.

Defendant's next two arguments that the Court deny front pay are relevant to the amount of front pay that Plaintiff should be awarded, but they do not foreclose such an award altogether. First, Defendant argues that there is insufficient evidence to support that Plaintiff would have continued working until age sixty-seven, which is how old she would be at the end of Plaintiff's proposed period of front pay. See Front Pay Resp. 5–6. But in the next breath, Defendant acknowledges that age, physical condition, and expected retirement are but “[f]actors that a court may use in determining an amount of front pay,” not whether front pay is warranted in the first instance. Id. at 5 (citing Downey, 510 F.3d at 544).

Defendant's last argument for precluding a front pay award entirely is that Plaintiff's damages calculations were unreliable, speculative, and flawed. Id. at 1–4. But front pay is inherently speculative. See Downey, 510 F.3d at 544 (“Front pay can only be calculated through intelligent guesswork, and we recognize its speculative character by according wide latitude in its determination to the district courts.” (quoting Sellers, 781 F.2d at 505)). Flaws in Plaintiff's calculations of her expected future pay could certainly warrant the reduction of a front pay award, but as with the dispute over Plaintiff's retirement age, this disagreement does not mean that front pay should be denied altogether. See id. at 545.

2. The Proper Rate and Duration of Front Pay

Turning, then, to the appropriate rate and duration of front pay, the Court finds that Plaintiff is not entitled to the full amount sought. As to the rate, the Court reiterates concerns expressed at side-bar conferences during trial, that Plaintiff's testimony about her expected future rate of pay was speculative, confusing, lacking foundation, and improperly driven by her attorney's leading questions. See Day 7 Tr. 752:7–754:21, 759:10–25; Fed. R. Evid. 611(c). Because Plaintiff's proposed annualized rate of $42,124.64 is inadequately supported by the record, the Court will decrease this figure to $29,379.54. This reduced rate corresponds to Plaintiff's actual annualized rate of pay for calendar year 2017, the last year during which she was employed by Defendant, as evinced by reliable documentary evidence at trial. See Day 7 Tr. 749:18–750:25; Reneau, 945 F.2d at 870 (holding courts may not refuse to award front pay altogether where “substantial evidentiary support” is available to make a calculation).

As to the appropriate duration of a front pay award, some factors counsel in favor of a longer period, while others point to a shorter one. See Downey, 510 F.3d at 544. Plaintiff's seventeen-year tenure as Defendant's employee, the permanent nature of her position, and the absence of any evidence indicating the possible consolidation of jobs militate in favor of a longer award. See id. On the other hand, Plaintiff's age and physical condition, considered in light of the physical nature of her position as a shipper in Defendant's warehouse, cut the other way. See id. To be sure, the jury found that Plaintiff could have performed the essential functions of her job at the time her employment ended, if Defendant had provided her a reasonable accommodation. And the Court does not upset that jury finding. But there was also ample evidence introduced at trial that Plaintiff's physical condition was deteriorating, and it is reasonable to expect that at some point, Plaintiff would no longer be able to meet the demands of her work, even with accommodations. See E.E.O.C. v. E.I. Du Pont de Nemours & Co., 480 F.3d 724, 732 (5th Cir. 2007) (overturning district court's ten-year front pay award due in part to the plaintiff's “steadily deteriorating medical condition”).

In Downey, the plaintiff sought five years of front pay, and the district court instead set the award at two years. 510 F.3d at 544. The Downey plaintiff had worked for the defendant for eighteen years. Id. But the district court found that there was some uncertainty in the permanency of her position, since she reported to an elected official, and because she had once requested a transfer. Id. The court also considered that the inherently speculative nature of front pay militated against an award so lengthy as five years. Id. The Fifth Circuit upheld the two-year award, finding the district court properly balanced plaintiff's long tenure against the possible impermanency of her position and the inherently speculative nature of any front pay award. See id. at 544–45.

Plaintiff's seventeen years with Defendant are similar to the Downey plaintiff's eighteen. And, as in Downey, the Court must balance that protracted history against other considerations suggesting that Plaintiff may not have remained in her job until retirement. See id. Weighing these factors and considering the parallels to Downey, the Court finds two years to be a reasonable period. See id. Accordingly, Plaintiff is awarded $58,759.08 in front pay damages.

IV. ADDITIONAL CONSIDERATIONS

Finally, the parties also dispute the proper application of damages caps and assessment of prejudgment interest. See generally Pl.'s Damages Br.; Def.'s Damages Br.

A. Application of Damages Caps

Compensatory and punitive damages for ADA claims are subject to one of several statutory caps, depending on the number of the defendant's employees. 42 U.S.C. § 1981a(a)(2)–(3), (b)(3). For defendants with more than five hundred employees, compensatory and punitive damages are capped at $300,000, total. Id. § 1981a(b)(3)(D). Awards of lost wages, including front pay, back pay, and interest thereon, are not considered compensatory or punitive damages and are not subject to the caps. Id. § 1981a(b)(2); Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 854 (2001). The same caps apply to Texas Commission on Human Rights Act (“TCHRA”) disability discrimination claims, pursuant to Texas state law. See Tex. Lab. Code § 21.2585(d)(4). The state and federal damages caps are “coextensive, not cumulative.” Black v. Pan Am. Labs., LLC, 646 F.3d 254, 258 n.3 (5th Cir. 2011) (citing Giles v. Gen. Elec. Co., 245 F.3d 474, 492 (5th Cir. 2001)). And they apply on a party-by-party, not claim-by-claim basis. Id. at 264. That is, regardless of the number of state and federal discrimination, retaliation, and reasonable accommodation claims pleaded, one plaintiff may recover a maximum of $300,000 in total from one defendant. See id.

The parties agree that the Court must alter the jury verdict in light of the statutory caps, and they also agree that the $300,000 cap applies. But they offer competing proposals for conforming the verdict to that cap. Plaintiff's first proposal would entail allocating the jury's past mental anguish award to her state TCHRA claim and its punitive damages award to her federal ADA claim. Pl.'s Damages Br. 1–2. Plaintiff argues that she should thus be able to recover up to $300,000 in compensatory damages on her TCHRA claim and another $300,000 in punitive damages on her ADA claim. Id. But Texas' damages caps are “coextensive, not cumulative” with the federal caps. Black, 646 F.3d at 258 n.3. The out-of-circuit authorities referenced by Plaintiff consider the interplay between federal discrimination laws and other states' laws, see Bradshaw v. Sch. Bd. of Broward Cnty., 486 F.3d 1205, 1207–08 (11th Cir. 2007), or other federal causes of action, Pavon v. Swift Transp. Co., 192 F.3d 902, 910 (9th Cir. 1999). These authorities cannot override the Fifth Circuit's binding precedent, which prevents the Court from allowing Plaintiff to recover more than $300,000 in compensatory and punitive damages from Defendant, on her ADA and TCHRA claims, collectively. See Black, 646 F.3d at 258 n.3. Plaintiff's first proposal is thus rejected.

In the alternative, Plaintiff asks the Court to “split[ ] the $300,000 amount between past mental anguish and punitive damages, and thereby award $150,000 for each.” Pl.'s Damages Br. 3. For its part, Defendant asks the Court to reduce the jury's past mental anguish, future mental anguish, and punitive damages awards, proportionally. Def.'s Damages Br. 3.

Section 1981a “contains no command as to how a district court is to conform a jury award to the statutory cap.” Jonasson v. Lutheran Child & Fam. Servs., 115 F.3d 436, 441 (7th Cir. 1997). Neither party references a Fifth Circuit decision providing any guidance on whether the Court should first reduce compensatory damages or punitive damages, or whether they should each be reduced pro rata. Nor does the Court find any controlling authority on this point. Indeed, the Fifth Circuit has sometimes applied the caps to reduce district court judgments, without indicating whether the reduction should apply to past or future compensatory damages, punitive damages, or both. See, e.g., Vance v. Union Planters Corp., 279 F.3d 295, 302 (5th Cir. 2002). Other circuits have expressly entrusted the apportionment to district courts' discretion, upholding decisions that “took the entire cut out of the award of punitive damages and [those] that took the entire cut out of the award of compensatory damages.” Lust v. Sealy, Inc., 383 F.3d 580, 589 (7th Cir. 2004). By one court's estimation, first reducing punitive damages is “the more common approach.” Id. (collecting cases). But there is also support for reducing each award proportionally, as Defendant proposes. See id.; Hines v. Grand Casino of La., LLC, 385 F. Supp. 2d 533, 548 (W.D. La. 2005). The Court finds no support for Plaintiff's alternative proposal—jettisoning future mental anguish and then splitting past mental anguish and punitive damages equally. Because Defendant's approach, unlike Plaintiff's, is supported by the decisions of other courts and reflective of the relative allotment of the jury, compensatory and punitive damages shall be reduced pro rata. The $3,262,500.00 punitive damages award is reduced to $272,584.86, the $326,250.00 past mental anguish award is reduced to $27,258.48, and the $1,875.00 future mental anguish award is reduced to $156.66.

B. Prejudgment Interest

After application of the caps, prejudgment interest applies “to all past injuries, including past emotional injuries.” See Thomas v. Tex. Dep't of Crim. J., 297 F.3d 361, 372 (5th Cir. 2002). Of course, it does not apply to “harms which have yet to occur.” Id. Nor does it apply to punitive damages. See George v. Foster, No. 96-31019, 1997 WL 681151, at *2 (5th Cir. Oct. 15, 1997). Because prejudgment interest is intended as a form of compensation “for the loss of the value of money based on the passage of time,” prejudgment interest on a capped award—i.e., compensatory damages—is counted towards the total capped amount. See Johnson v. Sw. Rsch. Inst., 384 F. Supp. 3d 722, 727 (W.D. Tex. 2019). But interest on an award that is not subject to the caps—i.e., back pay—is not counted towards the caps either. See id. at 728. Where, as here, federal law sets no specific rate, courts look to state law for guidance on the applicable rate. Id. at 726 (citing Perez v. Bruister, 823 F.3d 250, 274 (5th Cir. 2016)).

The parties dispute which damages are subject to prejudgment interest.⁴ See Pl.'s Damages Br. 3–6; Def.'s Damages Br. 2–3. Punitive damages, future mental anguish, and front pay are not subject to prejudgment interest. See Thomas, 297 F.3d at 372; George, 1997 WL 681151, at *2. And because compensatory damages have already been reduced in accordance with the statutory caps and any prejudgment interest on compensatory damages would be counted towards those same caps, Plaintiff is not entitled to prejudgment interest on the past mental anguish award, either. See Johnson, 384 F. Supp. 3d at 727. The only remaining component of the Damages Verdict is back pay, to which Plaintiff is entitled to prejudgment interest. See id.

And the parties agree that under Texas state law, the Court should look to the federal prime rate on the date of computation, unless that rate is less than five percent or greater than fifteen percent. See Pl.'s Damages Br. 4–5; Def.'s Damages Br. 2; accord Johnson, 384 F. Supp. 3d at 727. The prime rate is currently 7.0%. See Selected Interest Rates (Daily), Board of Governors of the Federal Reserve System (Dec. 7, 2022), https://www.federalreserve.gov/releases/h15/. Applying this annual prime rate to the $143,589.04 back pay award, the amount of prejudgment interest is $27.53762 per day. See Damages Verdict 1; Johnson, 384 F. Supp. 3d at 727 (noting the Texas Supreme Court has held prejudgment interest is to be computed as simple interest (citing Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 528 (Tex. 1998)). “District courts generally should calculate interest on back pay and past damages based on the date of the adverse employment action.” Thomas, 297 F.3d at 372. Here, the first adverse action occurred when Defendant denied Plaintiff a reasonable accommodation on November 10, 2017, which was her last day of work at the company. Aug. 15, 2022, Trial Tr. (“Day 2 Tr.”) 108:7–109:6, ECF No. 119. One thousand eight hundred and fifty-four days elapsed between the adverse action and Final Judgment, which shall be entered on this day, December 7, 2022. Plaintiff is thus awarded $51,054.75 in prejudgment interest. See Johnson, 384 F. Supp. 3d at 727.

V. CONCLUSION

For the foregoing reasons, the Motion for New Trial, ECF No. 76, is DENIED.

IT IS FURTHER ORDERED that the Motion for Front Pay, ECF No. 111, is GRANTED IN PART and DENIED IN PART. The Court will issue Final Judgment as a separate document, in accordance with the jury's Damages Verdict, as modified by this Order.

IT IS FURTHER ORDERED that the parties shall meet and confer, on or before January 9, 2023, to discuss the possibility of an agreement on the issue of costs and attorneys' fees. If the parties reach an agreement on costs and fees, they shall FILE joint notice informing the Court of their agreement on or before January 9, 2023. If the parties are unable to reach an agreement, they must FILE any bills of costs and motions for attorneys' fees in compliance with the requirements of Local Rule CV-54, except that the deadline for filing such bills and motions is January 9, 2023.

SO ORDERED.

SIGNED on this _____ day of December, 2022.

FOOTNOTES

1.   The Court does not endorse the practice of responding to written discovery requests “subject to” objections, which has no basis in the Federal Rules of Civil Procedure. See, e.g., Heller v. City of Dallas, 303 F.R.D. 466, 486–90 (N.D. Tex. 2014) (collecting cases). Nonetheless, the fact that Plaintiff objected in part here is relevant insofar as it shows that a diligent litigant in Defendant's position would not have accepted Plaintiff's response as if it were complete. Indeed, one of the sharpest critiques of the practice of responding “subject to” boilerplate objections is that “it is unclear whether the discovery request has received a complete response.” Id. at 487 (quoting Tomlinson v. Combined Underwriters Life Ins. Co., No. 08-cv-259-TCK-FHM, 2008 WL 4601578, at *1 (N.D. Okla. Oct. 16, 2008)). It is precisely this lack of clarity that should have put Defendant on notice of the need to conduct a more diligent inquiry into whether Plaintiff was receiving Social Security benefits.

2.   Defendant acknowledges that while Plaintiff's receipt of Social Security benefits may be relevant to whether she was a qualified person with a disability within the meaning of the ADA, it “does not automatically estop her from pursuing an ADA claim.” See Mot. New Trial 3 (citing Cleveland v. Policy Mgmt. Corp., 526 U.S. 795, 797–98 (1995)).

3.   As a preliminary matter, front pay may only be awarded where reinstatement to the plaintiff's previous position is not feasible, due to a hostile relationship between the employer and the plaintiff. Mota, 261 F.3d at 526. Plaintiff argues that reinstatement is not feasible, as demonstrated by Defendant's failure to include her in the interactive process. Front Pay Mot. 2–3. And Defendant does not dispute this contention. See generally Front Pay Resp. Considering Plaintiff's unrebutted assertion in light of the evidence presented at trial of the breakdown in Plaintiff's relationship with Defendant, the Court finds that reinstatement is not feasible.

4.   Defendant does not dispute that Plaintiff is entitled to postjudgment interest on the entire award, including punitive damages and prejudgment interest. See Def.'s Damages Br.; 28 U.S.C. § 1961(a); Boston Old Colony Ins. V. Tiner Assoc. Inc., 288 F.3d 222, 234 (5th Cir. 2002) (citing Fuchs v. Lifetime Doors, Inc., 939 F.2d 1275, 1280 (5th Cir. 1991)); Brown v. Petrolite Corp., 965 F.2d 38, 51 (5th Cir. 1992).

KATHLEEN CARDONE UNITED STATES DISTRICT JUDGE