United States District Court, N.D. Illinois
June 3, 2004.
CHARLES R. MATTENSON, Plaintiff; V. BAXTER HEALTHCARE CORPORATION, Defendant
The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Charles Mattenson, filed suit against Defendant, Baxter
Healthcare Corporation, alleging age discrimination in violation of the
Age Discrimination Employment Act of 1967 ("ADEA"). On November 25, 2003,
following trial, a jury awarded Mattenson backpay damages in the amount
of $532,791.28. The jury also found that Baxter's conduct was willful.
Accordingly, judgment was amended in favor of Mattenson in the amount of
On February 2, 2004, a trial before the Court without a jury was held
on the issue of awarding Mattenson front pay. Mattenson seeks front-pay
damages in the amount of $3,291,406, which includes wages for
approximately twelve years until Mattenson reaches the age of sixty-five.
Baxter argues that no front pay should be awarded.
The Court has considered the evidence, including the testimony of
witnesses and exhibits, and has further considered the written arguments
of counsel for the parties and the authority cited therein.
Pursuant to Federal Rule of Civil Procedure 52, the Court hereby enters
the following Findings of Fact and Conclusions of Law which are based
upon consideration of all the admissible evidence as well as the Court's
determination of the credibility of the trial witnesses. To the extent that Findings of Fact, as stated, may be considered Conclusions of
Law, they shall be deemed Conclusions of Law. Similarly, to the extent
that matters expressed as Conclusions of Law may be considered Findings
of Fact, they shall also be deemed Findings of Fact.
FINDINGS OF FACT
Mattenson is 54 years old. It was his intention to work for Baxter
until he was 65 years old because of his family obligations, including
two children of ages 11 and 13, and health insurance. Mattenson had
worked for Baxter as a patent attorney for fourteen years and has a
Master's Degree in biomedical engineering. At the time of his termination
in 2001, Mattenson's salary was approximately $140,000 per year, and a
total income of approximately $240,000 per year, including bonuses and
other fringe benefits.
Since trial, Mattenson has contacted twenty-three entities, including
law firms, corporations, and employment search firms, in his search for
employment. Mattenson received a few responses from his inquiries,
including a negative response from an attorney search firm and a law
firm. Other entities responded that they would keep Mattenson's
credentials on file. Mattenson did not receive a positive response from
any of the twenty-three entities.
Mattenson continues to search for employment by reviewing ads in
publications, searching the Internet, and speaking with acquaintances. In
addition, Mattenson has actively sought clients for his own law practice
in an attempt to make some income. Mattenson conceded that he did not
review every job vacancy entity presented by Baxter that lists vacancies
for patent attorneys. He did not review every entity because many of the
entities merely duplicated job vacancies he had previously reviewed, many
of the entities were seeking job solicitations rather than actual jobs,
and some of the Internet sites did not appear valid. Baxter identified several patent attorney positions that were
advertised to which Mattenson had not applied. Mattenson did not believe
that any of the positions were appropriate for a person of his background
and experience. Mattenson did not believe that any of the attorney
positions identified by Baxter were substantially comparable to his
position with Baxter.
Dr. Larry DeBrock, an economic expert, provided a report as to lost
back and future earnings. Dr. DeBrock calculated the following front pay,
assuming Mattenson retired at the age of 65 and did not mitigate damages:
Salary and Bonus Loss: $1,955,529
Stock Option Losses: $512,349
Fringe Benefit Losses: $420,439 (Option 1)*fn1
Direct Calculation of Fringe Benefits:
$823,539 (Option 2)*fn2
The total front pay calculated using Option 1 for fringe benefits is
$2,888,316. The total front pay calculated using Option 2 for fringe
benefits is $3,291,416.
Dr. Roger Skurski, Baxter's economic expert, identified "errors" in Dr.
DeBrock's report Dr. Skurski calculated Mattenson's bonuses and stock
options for the years 2001 through 2003 using figures he obtained from
Baxter of bonuses and stock options employees received for those years. Dr. DeBrock did not use the actual figures and forecast what he thought
Mattenson's bonuses and stock options would have been for those years.
Using the figures Baxter employees actually received for 2001 through
2003, Dr. Skurski calculated Mattenson's salary and bonus loss as
$1,943,659 and a stock option loss of $353,022. Adjusting for bonuses,
stock options, life expectancy, post-trial income, a net discount of 1.71
percent, and benefits, Dr. Skurski calculated Mattenson's salary and bonus
loss at $1,801,492 at the age of 65 (compared to Dr. DeBrock's calculated
loss of $1,955,529).
Assuming that Mattenson worked until 62 years of age, Dr. Skurski
calculated his loss, including accounting for mitigating damages, at
$838,205 using Option 1 for benefits and $1,050,206 using Option 2 for
benefits. Dr. Skurski calculated a discount rate of 1.71 percent using a
20 year average. The use of a 20 year average included the use of
some of the highest interest rates in the last century, which in turn
increased the discount rate. Dr. DeBrock used a 12 year average, which
did not include such high interest rates. As such, Dr. Skurski's discount
rate of 1.71 percent is significantly greater than Dr. DeBrock's discount
rate of 0.5 percent.
CONCLUSIONS OF LAW
The ADEA allows trial courts, at their discretion, to award front pay.
See Hybert v. Hearst Corp., 900 F.2d 1050, 1054-55 (7th Cir. 1990). Front
pay is designed to place a plaintiff in the identical position he would
have occupied had he been reinstated. See Bruso v. United Airlines,
Inc., 239 F.3d 848, 862 (7th Cir. 2001) (Bruso). A plaintiff seeking
front pay must provide the court with "the essential data necessary to
calculate a reasonably certain front pay award." McKnight v. General
Motors Corp., 973 F.2d 1366, 1372 (7th Cir. 1992) (McKnight). This
information includes the amount of the proposed award, the length of time
the plaintiff expects to work for the defendant, and the applicable
discount rate. See McKnight, 973 F.2d at 1372. While front pay awards are
often speculative, such awards cannot be unduly speculative. The longer the
prospective front pay period, the more speculative the damages become. See
McKnight, 973 F.2d at 1372. If the plaintiff fails to provide the court
with the essential data necessary to calculate a reasonably certain front
pay award, the court may deny the request. See McKnight, 973 F.2d at
Front pay is especially appropriate when the plaintiff has no
reasonable prospect of obtaining comparable employment or when the time
period of front pay is relatively short. See McNeil v. Economics Lab.,
Inc., 800 F.2d 111, 118 (7th Cir. 1986) (McNeil). Front pay may be less
appropriate if liquidated damages were awarded. Furthermore, the amount of
front pay may be limited by the plaintiff's duty to mitigate damages. See
McNeil, 800 F.2d at 118.
When calculating front pay awards, the court terminates its inquiry at
the point at which the plaintiff "can reasonably be expected to have
moved on to similar or superior employment" Williams v. Pharmacia,
Inc., 137 F.3d 944, 954 (7th Cir. 1998). Front pay is "not intended
to insure a plaintiff's future financial success." McKnight, 973
F.3d at 1371, Instead, "[d]amages should ordinarily extend only to the
date upon which `the sting' of any discriminatory conduct has ended."
McKnight, 973 F.3d at 1371.
Mattenson seeks over $3,000,000 in front pay as calculated by his
economic expert. The amount sought includes an applicable discount rate.
Plaintiff also testified that he had planned to continue working for
Baxter until he was 65 years of age. As such, Mattenson seeks over eleven
years of front pay.
However, the amount of front pay that Mattenson seeks does not include
any reduction for mitigating income over the next eleven years although
Mattenson is attempting to open his own practice and had made some income
working as a private practitioner. Furthermore, Mattenson provided no evidence of a reasonable time in which it would be expected
that he could find similar employment. Instead, Mattenson "assumes" that
he will not be able to find similar, or any, type of employment in the
next eleven years. While Mattenson established that he has a specialized
practice in the field of biomedical patent law, Mattenson is generally
highly educated with a graduate degree in engineering as well as a juris
doctor and significant professional experience. The twenty-plus inquiries
that Mattenson sent in search for employment fail to establish that
Mattenson will not receive similar employment in the next eleven years
and fail to prove when Mattenson can reasonably expect to obtain such
In light of the lengthy time of front pay sought, the failure to
include any reduction in the amount sought by mitigating damages by
professional employment, albeit at a status less than his employment with
Defendant, and the failure to demonstrate a reasonable time in which it
is expected that he could reasonably be expected to have moved on to
similar or superior employment, Mattenson has failed to prove that front
pay is appropriate or in what total amount. Based on the lack of evidence
before the Court to reasonably calculate front pay, an award of front pay
would be unduly speculative.