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June 21, 2001


The opinion of the court was delivered by: Reagan, District Judge:

      O R D E R

I. Introduction

On June 3, 1999, Charles Tart filed a two-count complaint against his employer, Elementis Pigments, Inc. ("Elementis"). Count I alleged that Elementis had discriminated against him in violation of the American Disabilities Act ("ADA"), 42 U.S.C. § 1201, et seq., by not accommodating his disability. Count II alleged that Elementis failed to recall him to work in retaliation for his claim for workers' compensation in violation of Illinois law.

On April 9, 2001, a jury returned a verdict in favor of Tart on both counts. Under Count I (the ADA claim), the jury awarded Tart $500,000 in compensatory damages and $1,500,000 in punitive damages. Under Count II (failure to recall in retaliation for his claim for workers' compensation), the jury assessed $500,000 for pain, suffering, and mental anguish, $30,000 for past loss of earnings, $175,000 for future loss of earnings, and $750,000 in punitive damages (for a total of $1,455,000).

However, several issues remain for the Court to decide.

II. Statutory Cap on Damages under the ADA

The ADA imposes a mandatory cap on compensatory and punitive damages depending upon the number of employees the defendant employs. 42 U.S.C. § 1981a(b)(3). In its answer to Tart's post-verdict interrogatory, Elementis states that it has employed less than 480 employees worldwide during each week of each calendar year since January 6, 1996. Under the ADA, "the sum of the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary losses, and the amount of punitive damages awarded under this section, shall not exceed $200,000 in the case of a defendant who has more than 200 and fewer than 501 employees in each of 20 or more calendar weeks in the current or preceding calendar year." 42 U.S.C. § 1981a(b)(3)(C).

By the jury's award of $500,000 in compensatory damages under Count I, the Court finds the jury clearly believed Tart's compensatory damages under Count I were significant. Moreover, punitive damages are looked upon with a jaundiced eye in contrast to compensatory damages. If the Court accepted Elementis' suggested one to three ratio, Tart would receive $50,000 in compensatory and $150,000 in punitive damages. Assuming the punitive award is reversed, Tart would be left with $50,000 compensatory damages in a case where he proved $500,000 in compensatory loss. Worse yet, Elementis, whose conduct in the jury's view mandated a punitive verdict of $1,500,000, would benefit from the egregious nature of its action because the ratio of punitive damages exhausts 75% of the cap. This would leave Tart with only 10% ($50,000 of $500,000) of the original compensatory award and 0% of the punitive award. Therefore, the Court REDUCES THE TOTAL AWARD UNDER COUNT I TO $200,000 pursuant to the statutory cap, all of which represents compensatory damages. Conforming the jury's award to the statutory cap does not affect the taxation of the damage award, which is taxable whether designated as compensatory or punitive.

Although the Court imposes the statutory cap as to the compensatory damages awarded under Count I pursuant to 42 U.S.C. § 1981a, back pay and front pay*fn1 are not subject to this cap. Therefore, this Court must determine the amount of back pay to which Tart is entitled, whether Tart should be reinstated or receive front pay, attorneys' fees, and any other equitable relief warranted.*fn2

III. Back pay

A. Count I — ADA

The parties stipulate that Tart is entitled to an award of back pay under Count I. Tart argues that he is entitled to back pay from October 28, 1997, the first day Elementis refused to accommodate his disability, to May 1, 2001, a post-verdict date that Tart does not explain. Tart also argues that $6000 per year should be added to his hourly wages for the value of his health insurance. All in all, Tart seeks $130,090 in back pay under Count I. However, this conflicts with the opinion of Dr. Leroy J. Grossman, Tart's economist. In his report, Dr. Grossman opines that Tart is entitled to $96,405 in back pay. Although Dr. Grossman provides no explanation for this figure, it appears that he has excluded approximately six months of wages.

Elementis agrees with Dr. Grossman's presumed assumption that wages needed to be excluded for periods of time during which Tart otherwise would not have been working. However, Elementis argues that more time should be excluded. The Court agrees. An employee is not entitled to back pay for periods of time that he otherwise would not have been working even if the unlawful discrimination had not occurred. Flowers v. Komatsu Mini Systems, Inc., 165 F.3d 554, 557 (7th Cir. 1999).

First, the evidence shows that from October 29, 1997 to January 8, 1998, Tart was totally disabled and industrially unemployable. Therefore, this time frame must be excluded. Second, the time period the jury used to determine the back pay award under Count II must be excluded in order to avoid a duplicative award. Tart can "only recover back pay once for a single time period no matter how many or few of Elementis' unlawful acts caused the Tart's back pay loss." Emmel v. Coca-Cola Bottling Co. of Chicago, Inc., 904 F. Supp. 723, 750 (N.D.Ill. 1995), aff'd, 95 F.3d 627 (7th Cir. 1996). There can be no duplication of any back pay award. Id. The jury assessed Tart's back pay under Count II using a time period beginning on June 1, 2000, the first day Tart should have been recalled to work, to the date of the verdict. This time must be excluded when determining the back pay award under Count I. Therefore, the time period for determining back pay under Count I ends on May 31, 2000.

Next, the evidence shows that the Painters' Union Local 1850, of which Tart was a member, engaged in a strike from November 11, 1999 to May 31, 2000. This time period also must be excluded.

Taking into consideration each of the applicable time period exclusions, Tart is entitled to back pay from January 9, 1998 to November 10, 1999. Given the evidence regarding his salary during 1998 and 1999, Tart would have earned $34,661.84 during this time period (1/9/98 to 10/12/98 at $15.01 per hour plus 10/13/98 to 11/10/99 at $15.31 per hour).

Elementis also argues that this figure is subject to additional reductions for (1)permanent partial disability payments that were offered by Elementis but rejected by Tart; (2)actual interim earnings; and (3) imputed earnings as a result of Tart's failure to take advantage of vocational retraining or positions paying $19,600 per ...

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