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Ortega v. Chicago Board of Education

United States District Court, N.D. Illinois, Eastern Division

November 21, 2017

LINDA ORTEGA, Plaintiff,



         Linda Ortega was a tenured teacher in the Chicago Public School (“CPS”) system. She taught fifth grade at Hedges Elementary until the principal of that school terminated her after determining she no longer met the requirements for her position. Ortega brought this lawsuit alleging intentional discrimination by the principal and her employer, the Chicago Board of Education (“the Board”), in violation of the Americans With Disabilities Act (“ADA”), 42 U.S.C. §§ 12111-117. Summary judgment was entered in favor of the principal because the ADA provides a right of action against the employer but not the employee's supervisor. Ortega's discrimination claims against the Board went to trial on October 13-16, and 19, 2015, and the jury returned a verdict in Ortega's favor, awarding her $285, 000 in compensatory damages.[1]

         Following the jury's verdict, the parties appeared before the Court on numerous occasions to address disputes over the equitable relief, if any, to which Ortega might be entitled as a result of the jury's finding of intentional discrimination. On August 15, 2016, the Court held a hearing to allow the introduction of additional evidence on the equitable relief question. After careful consideration of the evidence introduced at the equitable relief hearing, as well as the evidence submitted at trial and the legal briefs filed thereafter, the Court now concludes that Ortega is entitled to equitable relief in the form of back pay, prejudgment interest, front pay, and lost pension benefits, as more fully set forth below.

         Governing Principles

         The ADA incorporates the remedies available to a plaintiff in a Title VII discrimination action. See 42 U.S.C. § 12117(a); 42 U.S.C. § 1981a(a)(2). Those remedies include compensatory damages “for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses.” 42 U.S.C. § 1981a(b)(3). For employers such as the Board (more than 500 employees), compensatory damages are capped at $300, 000, although the jury is not informed of this cap. See 42 U.S.C. § 1981a(b)(3)(D), § 1981a(c)(2). The jury's $285, 000 compensatory award is within the statutory cap, and is not before the Court in this opinion. Instead, the issue to be decided is whether Ortega is entitled to one or more of the remedies specifically excluded from the jury's compensatory award, namely, “back pay, interest on back pay, or any other type of relief authorized under . . . [42 U.S.C. § 2000e-5(g)].” 42 U.S.C. § 1981a(b)(2).

         Back pay and other forms of equitable relief are available in an ADA case, see 42 U.S.C. § 1981a(a)(2); 42 U.S.C § 2000e-5(g)(1), but the decision of whether to award them is reserved for the trial court. See Pals v. Schepel Buick & GMC Truck, Inc., 220 F.3d 495, 500 (7th Cir. 2000). When making that decision, the trial court “must respect the findings implied by the jury's verdict, ” id., but is otherwise vested “with broad discretion to fashion a remedy for unlawful discrimination, ” E.E.O.C. v. Ilona of Hungary, Inc., 108 F.3d 1569, 1580 (7th Cir. 1997). The guiding principle in exercising that discretion is that the court “has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.” Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975) (internal quotation marks and citation omitted). “And where a legal injury is of an economic character, [t]he general rule is, that . . . [t]he injured party is to be placed, as near as may be, in the situation he would have occupied if the wrong had not been committed.” Id. at 418-19 (internal quotation marks and citation omitted); see also Ford Motor Co. v. Equal Emp't Opportunity Comm'n, 458 U.S. 219, 230 (1982) (the statutory aim is “to make the victims of unlawful discrimination whole by restoring them, so far as possible . . . to a position where they would have been were it not for the unlawful discrimination”) (internal quotations and citation omitted).

         Back Pay

         A. Overview

         “Complete relief for a victim of discrimination generally will include an award of back pay; indeed, such an award is presumptively proper once a violation has been shown.” Ilona of Hungary, Inc., 108 F.3d at 1580 (citing Equal Emp't Opportunity Comm'n v. O & G Spring and Wire Forms Specialty Co., 38 F.3d 872, 880 (7th Cir. 1994), and United States v. City of Chicago, 853 F.2d 572, 575 (7th Cir. 1988)). Back pay represents the wages the plaintiff would have earned had she not been fired. See 7th Cir. Pattern Civil Jury Instruction 3.11 (2015). Included in this calculation are any “benefits [s]he would have received from the Defendant if [s]he had not been [terminated].” Id.

         Ortega seeks an award of net lost wages through August 15, 2016[2] and prejudgment interest in the total amount of $363, 413.43. See R. 178 at 7. In addition, Ortega seeks lost pension benefits in the amount of $433, 222.00, representing the estimated present value of the total monthly teacher's pension payments she could have anticipated receiving beginning at age 62 had she not been terminated. See R. 180 at 3.[3] The total amount of the back pay award requested by Ortega is $769, 635.43.[4] She also asks for an additional unspecified amount to reflect back pay from the date of the equitable relief hearing through the date judgment is entered.[5]

         The Board argues, on the other hand, that Ortega's entitlement to back pay should be limited in two respects: first, by her failure to mitigate her damages; and, second, by a stipulation to a back pay amount to which the parties agreed during the trial. The Board has been inconsistent about whether it is seeking to impose both of these limitations at the same time, and its most current position on that question remains unclear. In addition, the Board takes issue with Ortega's calculation of net lost wages, and further argues that Ortega should not recover any prejudgment interest because of her purported delay in this litigation. Taking these arguments into account, the Board provides the Court with three back pay options. First, the Board suggests that Ortega is entitled to net lost wages only through June 19, 2012 (the date on which she allegedly stopped mitigating her damages) in the amount of $33, 335, to which the Board would add $2, 333.45 in lost pension contributions, for a total back pay award of $35, 668.45. R. 179 at 7. In what the Court will assume is an alternative calculation, the Board argues Ortega is entitled to the stipulated amount of $215, 835 in back pay, although the Board is unclear whether it believes the stipulated amount is subject to further deductions.[6] If the Court rejects either of these positions, the Board argues Ortega is entitled to net lost wages through August 15, 2016 in the amount of $254, 022.05, to which the Board would add $17, 781.54 in lost pension contributions, for a total back pay award of $271, 803.59. R. 179 at 7; R. 179-1 at 2.[7]

         The Court will begin by reviewing the evidence regarding Ortega's job history. The Court then will address the Board's affirmative defense of failure to mitigate, followed by the Board's argument that the parties' trial stipulation serves to limit the amount of Ortega's back pay award. Next, the Court will resolve disputed issues related to the net lost wages calculation and prejudgment interest on net lost wages.[8] The Court will conclude the back pay issue by discussing whether Ortega is entitled to an additional award representing back pay and prejudgment interest through the date on which judgment is entered. The Court will reserve the issue of pension benefits until the end of this opinion.

         B. Ortega's Job History

         Ortega began her employment with the Board on January 26, 1998. R. 139 at 79 (Tr. Transcript 143); R. 184 at 40-41; Def. Ex. X.[9] She was removed from her teaching position at Hedges Elementary on June 19, 2009. Because she was a tenured teacher, after her removal Ortega was placed in the reassigned teacher's pool for one year. The reassigned teacher's pool is a benefit given by the Board to tenured teachers who lose their job. See R. 141 at 82 (Tr. Transcript 650). During her time in the reassigned teacher's pool, Ortega received full pay (approximately $71, 958 per year, R. 139 at 122, 127-28 (Tr. Transcript 186, 191-92)), while applying for open teaching positions and working for the Board as a substitute teacher. Id. at 122-27 (Tr. Transcript 186-91).

         On June 19, 2010, Ortega moved from the reassigned teacher's pool to the substitute teacher's cadre. The substitute teacher's cadre is the second-year benefit given to a tenured teacher who has not found another teaching position after spending one year in the reassigned teacher's pool. The pay of a cadre substitute teacher is substantially less than the pay of a reassigned teacher. If a teacher's time in the cadre is up and she still has not been appointed to a permanent position, her employment with the Board is terminated. R. 141 at 127-29 (Tr. Transcript 191-93). Ortega supplemented her income as a cadre substitute teacher with a job as a part-time professor at City Colleges of Chicago. Id. at 167-68 (Tr. Transcript 231-32). Her employment with the Board ended altogether sometime in 2011. See R. 184 at 165.[10]

         For more than a year after her final separation from the Board, the only income Ortega received was her part-time City Colleges salary and unemployment compensation. R. 139 at 173-74 (Tr. Transcript 237-38). In May 2013, she was offered and accepted a job as a human services caseworker with the State of Illinois. Initially, she received a trainee salary of $38, 000 per year, which then increased to $48, 000 per year. Id. at 174-75 (Tr. Transcript 238-39); R. 184 at 165.

         The following is a summary of Ortega's job history:




January 26, 1998-June 19, 2009


full-time assigned teacher

June 19, 2009-June 19, 2010


reassigned teacher's pool (full salary)

June 19, 2010-October 2011

Board and City Colleges of Chicago

substitute teacher's cadre and part-time professor

October 2011-May 2013

City Colleges of Chicago

part-time professor and unemployment benefits

May 2013-present

State of Illinois

human services caseworker, trainee followed by full-salary employee

         C. Failure To Mitigate

         “Liability for back pay begins at the time that the [adverse employment action] causes economic injury” and continues through the date judgment is entered in the plaintiff's favor, Gracia, 130 F.Supp.3d at 1255, unless the plaintiff obtains a higher paying job before that date, see U.S. Equal Emp't Opportunity Comm'n v. Custom Cos., Inc., 2007 WL 734395, at *12 (N.D. Ill. Mar. 8, 2007).[11] Because Ortega's current job with the state government pays less than her former job with the Board, Ortega seeks an award of back pay beginning on June 19, 2010, when she last received full salary as part of the reassigned teacher's pool, through the date of judgment.

         An employer may avoid the accrual of back pay by showing that the plaintiff failed to mitigate her damages. See Graefenhain v. Pabst Brewing Co., 870 F.2d 1198, 1202 (7th Cir. 1989) (“[A] discharged employee must mitigate damages by using ‘reasonable diligence in finding other suitable employment.'”) (quoting Ford Motor Co., 458 U.S. at 231 (emphasis supplied by court omitted)); see also Doe v. Oberweis Dairy, 456 F.3d 704, 714 (7th Cir. 2006) (quoting 42 U.S.C. § 2000e- 5(g)(1) (“interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable”) (emphasis added)). The burden of proving lack of mitigation is on the employer. Ilona of Hungary, Inc., 108 F.3d at 1581. The Seventh Circuit has “emphasize[d]” that, to prevail on a failure to mitigate defense, the employer must prove “‘both that the [plaintiff was] not reasonably diligent in seeking other employment, and that with the exercise of reasonable diligence there was a reasonable chance that [she] might have found comparable employment.'” U.S. Equal Emp't Opportunity Comm'n v. Gurnee Inn Corp., 914 F.2d 815, 818 (7th Cir. 1990) (citations omitted) (emphasis supplied by court).

         1. Diligence

         Ortega kept detailed records to document her job applications in the first three years following termination of her tenured position at Hedges Elementary. See R. 139 at 166-67 (Tr. Transcript 230-31). She testified that in the first school year after she was reassigned (2009-2010), she applied for 127 teaching positions. Id. at 166 (Tr. Transcript 230). The next school year (2010-2011), she applied for about 326 teaching positions. Id. In the third school year following her reassignment (2011-2012), she applied for 487 teaching positions. Id. Ortega testified that after June 2012 she “decided not to continue investing [her] time and energy [in applying for teaching jobs with the Board]” because “it became apparent to [her] that [she] was not going to obtain [such] a job.” Id.

         The Board argues it has met its burden of proof on its failure to mitigate defense after June 2012[12] by pointing to Ortega's trial testimony that she stopped investing her time and energy in applying for teaching jobs with the Board after June 19, 2012.[13] But in cases in which a court found a lack of mitigation, the plaintiff typically remained unemployed after his or her termination and the evidence showed he or she had stopped looking for work altogether.[14] Here, Ortega never stopped looking for work and in fact did mitigate her damages when she found and accepted another job. The Board's complaint about Ortega's job search efforts appears to be that she accepted a lower paying job with the state government rather than continued looking for another teaching position with the Board. This strikes the Court as hypercritical. See Coffey v. DSW Shoe Warehouse, Inc., 145 F.Supp.3d 771, 779 (N.D. Ill. 2015) (stating that the duty to mitigate should “'not be invoked as grounds for a hypercritical examination of a plaintiff's conduct, '” quoting Amalgamated Bank of Chic. v. Kalmus & Assocs., Inc., 741 N.E.2d 1078, 1086 ( Ill. App. 1st Dist. 2000)). Not only that, but most courts have held the opposite of what the Board is arguing; that is, they have held that a plaintiff may “reach[ ] the point where a reduction in expectations is required.” Coleman v. Lane, 949 F.Supp. 604, 613 (N.D. Ill. 1996); see Ford Motor Co., 458 U.S. at 231 n. 16 (“lower courts have indicated . . . that after an extended period of time searching for [comparable] work without success, a claimant must consider taking a lower-paying position”).[15] And the Seventh Circuit has said specifically that “the maximum period of unsuccessful search that [the plaintiff] can be allowed, consistently with the record and the case law, is three years, ” because, “[a]t some point people must put their legal troubles behind them and get on with their lives.” Hunter, 797 F.2d at 1428.

         That is exactly what Ortega did here. She testified that she submitted hundreds of job applications each year, and she never testified that she stopped aggressively looking for a job. Nor did she ever admit that she made no applications whatsoever after a certain point. In testimony not tied to any definite time period, she stated that she “applied for at least a thousand jobs, ” which included “not just . . . high-income [jobs], ” like her old teaching position, but non-teaching jobs as well, including “everything that [she] thought [she] might be eligible for.” R. 139 at 167 (Tr. Transcript 231). Nevertheless, after three years of searching for a comparable teaching job, she decided to focus her search on any employment for which she was qualified.

         The Board cites Williams v. Imperial Eastman Acquisition Corp., 994 F.Supp. 926 (N.D. Ill. 1998), for the proposition that, when Ortega accepted the lower paying job with the state government, she made a willful choice to be underemployed. But Williams “does not teach that starting an alternative career in lieu of continuing to seek comparable employment necessarily constitutes a failure to mitigate damages.” Snow v. HealthSouth Corp., 2001 WL 395124, at *27 (S.D. Ind. Mar. 21, 2001). Rather, the plaintiff in Williams sought permanent work in a different field after making only “two inquiries [for comparable work].” 994 F.Supp. at 932. The Williams court viewed this minimal effort as evidence that the plaintiff's “decision to give up on the search and return to his hometown to run the family cattle farm entailed a personal choice to start an alternative career, rather than a serious attempt to mitigate damages.” Snow, 2001 WL 395124, at *27. Significantly, the Williams court specifically noted that the plaintiff “could have decided to work permanently on the cattle farm if after a diligent search, he could not find comparable work.” Williams, 994 F.Supp. at 932 (emphasis added). Here, Ortega submitted not two, like in Williams, but over nine hundred applications seeking comparable employment with the Board.

         The Supreme Court has recognized that “[t]he extended time it frequently takes to obtain satisfaction in the courts may force a discrimination clamant to suffer through years of underemployment or unemployment before being awarded the job claimant deserves. . . . The claimant cannot afford to stand aside while the wheels of justice grind slowly toward the ultimate resolution of the lawsuit. The claimant needs work that will feed a family and restore self-respect. A job is needed-now.” Ford Motor Co., 458 U.S. at 221. The Board argues Ford Motor Co. is inapposite because it involved an employer charged with discrimination in hiring who attempted to toll the accrual of back pay liability by making a pretrial offer to hire the plaintiff for the job that was previously denied to her. Id. at 220. But the Board does not explain why that factual distinction makes any difference here. As the Board itself recognizes (see R. 179 at 5), the Supreme Court made the statement about needing a job “now” in the context of interpreting and applying the mitigation rule. The only difference is that, in Ford Motor Co., the employer argued that back pay did not accrue after it offered the plaintiff a job, whereas here the Board argues that back pay does not accrue after Ortega stopped applying for teaching positions with the Board. The observation about needing a job “now” is just as meaningful to the situation Ortega faced as it was to the situation on which the Supreme Court was commenting in Ford. The Court finds that Ortega's three-year effort to find a comparable teaching position with the Board was diligent, and that, after that effort failed to produce any results, Ortega appropriately refocused her job search on any teaching or non-teaching position for which she was qualified.[16]

         Implicit in the holdings of the cases approving of a plaintiff lowering her job expectations after a lengthy search for comparable work is the conclusion that, once a lower paying job is accepted, the plaintiff may recover back pay damages without being required to make further mitigation efforts. As one court stated, “a plaintiff must continue his efforts at mitigating his post-verdict but pre-reinstatement losses. Where, however, the plaintiff is genuinely unable to find work or is forced to ‘lower his sights' and accept an inferior position, the defendant will be responsible for the difference (however great) between what the employee would have been earning and what he actually earned during the period prior to his reinstatement.” Coleman, 949 F.Supp. at 610 (emphasis added). In any event, Ortega testified that she has never stopped and continues through the present looking for better paying jobs than the job she currently has with the state government. R. 184 at 72-73. The Board's argument that “there is no evidence” that Ortega has been diligently searching for a comparable job, R. 185 at 2, is an attempt to shift the burden of proof to Ortega. The question is not whether Ortega has produced evidence she was diligent but whether the Board has produced evidence she was not.[17] And the fact that Ortega has not been successful in finding comparable work fails to demonstrate that she has been less than diligent.[18] Ortega testified she made a thorough job search and there is no evidence that her thoroughness ended either in June 2012 or after she became employed in her new job. Therefore, the Court holds that the Board has not shown that Ortega's job search since June 2012 through the date of judgment has been less than diligent.

         2. Likelihood That Ortega Might Have Found Comparable Employment

         Even if the Court were to conclude that Ortega's efforts to mitigate her damages were less than diligent, the Board still has not met its burden of proof on the second issue of whether it was reasonably likely that Ortega would have obtained another teaching job had she continued looking after June 2012. See, e.g., Gracia, 130 F.Supp.3d at 1257 (discussing types of evidence that might satisfy a defendant's burden of proof on the issue); Coffey, 145 F.Supp.3d at 779 (same).[19]Ortega has never denied that teaching jobs with the Board were available in the relevant time period. Her argument instead is that it was highly unlikely she would have been able to obtain one of those jobs. The Board argues to the contrary, relying primarily on Ortega's own testimony to prove she could have gotten a teaching job had she kept looking. Ortega testified that, as a result of her more than nine hundred teaching job applications, she received three or four interviews and was offered and accepted a job on two occasions. R. 139 at 168 (Tr. Transcript 232). But Ortega further testified that the two offers of employment were retracted before employment was to have commenced. R. 144 at 4. The Court sustained the Board's objection at trial when Ortega attempted to testify to her belief as to why the two job offers were rescinded.[20] In doing so, the Court acknowledged that the excluded testimony might “reflect a reluctance by . . . a principal to . . . hire a teacher who is on that list for one reason or another.” R. 139 at 255 (Tr. Transcript 319). In other words, Ortega's testimony about why the job offers were rescinded was relevant to the mitigation issue of whether it was likely Ortega could have obtained a comparable teaching position. But since the mitigation issue had not been raised during trial, the testimony was not allowed at the time. After trial, Ortega submitted a declaration in which she tried to explain the “revoked”[21] job offers:

On the rare occasion that CPS principals interviewed me in person or on the phone, while I was a reassigned teacher, they dwelled on how I became a reassigned teacher. I was offered a job twice and both job offers got retracted. Even when I had stated that it was under litigation and was not allowed to talk about the subject, the administrators pressed on.

R. 166 at 8 (¶ 12). While Ortega's post-trial testimony regarding the reasons the two potential job offers never came to fruition arguably is speculative, just as speculative is the conclusion the Board asks the Court to draw from Ortega's experience with the two potential jobs-that it was reasonably likely she would have gotten another teaching position had she kept looking.

         The Board also cites to the fact that another tenured teacher testified at trial that she got a teaching position at Hedges Elementary shortly after being placed in the reassigned teacher's pool. But the teacher's testimony does not cover the circumstances under which she obtained her job at Hedges, which, in any event was in the fall of 2010, while Ortega was still looking for comparable teaching positons with the Board. Without information about whether her situation was similar to Ortega's, the Court is unable to draw a non-speculative inference that the ability of the teacher in question to get a job in the fall of 2010 has any bearing on whether Ortega would have been able to do so after June 2012.

         Finally, the Board introduced additional evidence at the equitable relief hearing through the testimony of Kathryn Gray, the current manager of the reassigned teacher's pool. The Board argues that “Ms. Gray testified that 58% of the teachers in the reassigned teacher's pool found full-time teaching positions at the Board despite the fact that they were typically limited to five months in the pool.” R. 179 at 6. Ms. Gray testified that she was not the manager of the pool during the relevant time period, R. 184 at 214, and it is by no means clear that current statistics have any meaning for the earlier time period when Ortega was a member of the pool. Ortega testified that “[w]hen [she] was a reassigned teacher [in the] 2009 through 2010 academic year, it was a well known fact that reassigned teachers are blacklisted and most are not rehired as full-time tenured teachers.” R. 161 at 5 (¶ 7).[22]

         While Ortega's testimony regarding the chances of a reassigned teacher finding a permanent position may be speculative, it would appear that Gray's testimony, though couched in statistics, is just as speculative. As far as the Court can tell, Gray's 58% estimate is not grounded in any objective data. And Gray could not provide a breakdown in terms of how many teachers who got hired from the reassigned teacher's pool were, like Ortega, over the age of 40 and tenured more than ten years, characteristics which Ortega argues would make her chances of finding a permanent position lower than average. See R. 184 at 230. Moreover, even if Gray's testimony regarding the percentage of teachers who find a job during their five months in the teacher's pool is not speculative, it is not relevant to Ortega's chances of getting a job after she spent twelve months in the pool. It is just as likely that the chances of finding another teaching position would decline, not increase, either the longer a teacher remained in the pool or afterwards when she no longer is part of the pool (as was the case for Ortega in the post-June 2012 time period when the Board argues she should have continued to look for a teaching job).

         In sum, the Court finds that neither Gray's testimony nor any other evidence cited by the Board satisfies the Board's burden of proof on the issue of whether Ortega would have found another teaching position had she continued looking past June 2012. See Pierce v. Atchison, Topeka & Santa Fe Ry. Co., 65 F.3d 562, 575 (7th Cir. 1995) (“Pierce actively pursued comparable employment but had been unable to find anything other than minimum wage (or lower) jobs during the three and one-half years since his discharge. We cannot conclude that the court acted unreasonably in assuming that Pierce would not find a similar job in the future.”).[23]

         D. Trial Stipulation

         1. Background

         The Board's second argument for limiting Ortega's back pay award requires some background information regarding how the trial stipulation came about. Prior to trial, the parties agreed to an advisory jury verdict on the back pay issue. See Seventh Circuit Pattern Civil Jury Instruction 3.11, Committee Comment a (“The court may empanel the jury as an advisory jury on the [back pay] issue; or the parties may, with the court's consent, agree that the jury will decide the issue.”). During trial, however, it became apparent that neither side was fully prepared to present evidence to the jury on the back pay issue.[24] The Board's counsel requested an accommodation in the trial schedule to allow her time to prepare on some of the back pay issues. The Court said it would consider the matter during a break in proceedings, but when the proceedings reconvened, the parties informed the Court they had reached an agreement for a stipulated back pay amount minus the pension portion of that award, the latter being expressly reserved for post-trial proceedings. R. 141 at 71-72 (Tr. Transcript 639-40).

         Upon learning of this agreement, the Court pointed out that if the parties were intending to stipulate to the back pay amount, there no longer was any need for an advisory jury verdict on that issue. R. 141 at 73 (Tr. Transcript 641). But defense counsel pressed for the issue to be included in the jury instructions, with the stipulated back pay amount being told to the jury, so the jury would be aware Ortega would be receiving at least that amount if it needed to address the question of a separate compensatory damages award. See Id. at 74 (Tr. Transcript 642). Ortega's counsel did not object to this strategy, but she specifically stated she had not agreed to a final number on the back pay amount. Later, Ortega's counsel indicated agreement to the stipulated back pay amount while placing only one caveat on the record, which was that the amount was subject to later revision by the Court based on Ortega's position that the Board was not entitled to an off-set for unemployment compensation received by Ortega. R. 141 at 117 (Tr. Transcript 685).[25]

         As a result of the parties' agreement, the Court gave the following jury instruction:

If you find the plaintiff has proven her claim of discrimination by a preponderance of the evidence, you may award her as damages any lost wages she would have received from the defendant if she had not been displaced from her position at Hedges Elementary School minus the earnings the plaintiff received from other employment during that time that she would not otherwise have received. It is plaintiff's burden to prove that she lost wages and their amount. If she fails to do so for any periods of time for which she seeks damages, then you may not award damages for that plaintiff. . . . The parties have agreed . . . that the amount of back pay at issue is $215, 835. This amount is only relevant if you find plaintiff has proven liability. By stipulating, the defendant does not admit any liability.

R. 141 at 139-40 (Tr. Transcript 707-08). No instruction was requested by the Board or given to the jury for the Board's failure to mitigate defense, notwithstanding that, prior to entering into the stipulation, the Board had anticipated presenting that issue to the jury as indicated by its pre-trial proposed jury instructions. The Board now argues that Ortega's back pay award should be limited to no more than the $215, 835 stipulated amount.

         2. Analysis

         The Seventh Circuit has said that “[s]tipulations regarding the nature of trial proceedings are crucial to the prompt and efficient disposition of litigation. Therefore, once made, a stipulation is binding unless relief from the stipulation is necessary to prevent a ‘manifest injustice' or the stipulation was entered into through inadvertence or based on an erroneous view of the facts or law.” Graefenhain, 870 F.2d at 1206. “As with other matters of trial management, the district court has broad discretion to decide whether to hold a party to its stipulations, ” and its “decision will be overturned on appeal only where the court has clearly and unmistakably abused its discretion.” Id. (internal quotation marks and citations omitted).

         The Court's review of the record indicates a number of factors relevant to its exercise of discretion here. First, the circumstances surrounding the stipulation suggest there was no meeting of the minds regarding what the stipulated amount was meant to represent. While both parties argue what they “understood” the stipulation to cover, [26] the Court has no way of knowing which of those “understandings” is the collective one when the agreement was reached by counsel outside the Court's presence.[27] Further, the lack of clarity operates on multiple levels. There is no clarity regarding the components of the back pay calculation the stipulation was intended to cover. For instance, was the stipulation supposed to be a gross back pay calculation (Ortega's loss wages without credit for actual earnings) or a net back pay calculation (net of actual earnings), and was it supposed to take into account the Board's failure to mitigate defense? And, there is no clarity regarding whether the stipulated amount was a final, agreed-to number or just an estimate subject to later revision by the Court based on evidence introduced post-trial.

         Second, the Board cannot argue it will be prejudiced if the Court does not hold Ortega to the stipulation. Ortega “is not materially changing her positions or arguments in any way, such as if she was now seeking to recover a type of damages that she never requested or was seeking to proceed on entirely new theories.” Hathaway, 2006 WL 1594060, at *4.

         Third, it would be unfair to hold Ortega to the stipulated amount when the confusion surrounding the stipulation came about as a result of the Board's desire, for strategic reasons and despite its lack of preparation, to submit the back pay issue to the jury for “advisory” purposes. At the very least, if the stipulation in fact was an accommodation to both parties and Ortega did intend to agree to a final number, there is a strong case to be made that the stipulated amount was intended to reflect net back wages and to take into account the Board's failure to mitigate defense.[28] Yet the Board appears to be taking the opposite position, specifically seeking to off-set the stipulated back pay amount with Ortega's actual earnings in her post-termination years as well as a credit for the time period in which the Board argues Ortega failed to mitigate her damages.[29] Either the stipulated amount should be binding on both parties or it should be binding on neither.

         Fourth, it was explicitly recognized by the parties that several back pay issues, such as pension amounts, recovery for health benefits, and whether the Board was entitled to off-set the amount of the back pay award with unemployment compensation, would be dealt with after trial. Ortega's counsel also explicitly preserved the issue of whether Ortega was entitled to additional amounts in back pay for the period after the jury reached a verdict through the date on which judgment was entered. While it is true that, other than these items, Ortega's counsel did not expressly reserve adjustments to the stipulated back pay amount, the opposite also is true; that is, nowhere in the record does it clearly show that the parties intended by entering into the trial stipulation to preclude other matters from being raised post-trial for purposes of the Court's final determination on the back pay issue. Further, the Court repeatedly warned the parties that the jury's verdict regarding back pay was for advisory purposes only, and that the Court would retain final decision-making authority on the issue. See, e.g., R. 127 at 50-54; R 141 at 194. Although the Court's comments were made in the context of discussions regarding pension benefits, it would not have been unreasonable for Ortega's counsel to have taken the Court's statements to mean that additional evidence would be allowed after the jury verdict to enable the Court to reach a final conclusion regarding the entire back pay amount.

         For all of the above reasons, the Court concludes that the stipulation is not binding, and the Court will decide the back pay issue independent of the trial stipulation based on the evidence introduced at trial and at the post-trial equitable relief hearing.

         E. Lost Wages

         The Court now turns to the net lost wages calculation, which includes two components: (1) the total amount of wages Ortega would have received from the Board if she had not been displaced from her position at Hedges Elementary; and (2) Ortega's actual earnings from other employment during the same time period. See Horn v. Duke Homes, Div. of Windsor Mobile Homes, Inc., 755 F.2d 599, 606 (7th Cir. 1985) (“damages are determined by measuring the difference between actual earnings for the period and those which [the plaintiff] would have earned absent the discrimination by defendant”) (internal quotation marks and citation omitted).

         1. Projected Earnings

         Ortega retained an actuary to determine the amount of her lost earnings. To calculate what Ortega's salary would have been had she not been terminated, the actuary began with the undisputed fact that, during Ortega's final year of full tenured employment, she received an annual salary of $81, 646.07. See R. 184 at 166; Pl. Exs. 7, 13. The actuary then relied on the salary schedules attached to the Chicago Teacher's Union Collective Bargaining Agreements (“CBAs”) to determine what Ortega's salary would have been for each of the applicable school years for which she was entitled to back pay. The evidence introduced at the equitable relief hearing, however, showed that the actuary's calculations were slightly off for several reasons. One reason was that the actuary assumed Ortega was a Lane V, Step 13 employee when she was terminated, and that, had she not been terminated, she would have automatically moved up one step each year of her employment. See R. 184 at 48-49; Pl. Ex. 13.[30] According to James Via, Benefits Analysis for the Chicago Public Schools, this assumption was incorrect because teachers remain at steps 14 and 15 for four years before advancing to the next step. Via also testified that, at some point, intermediate steps were added to Steps 14 and 15, so that instead of moving directly in the following year from one of those steps to the next higher step, an employee moved from Step 14a to Step 14b, for example. See R. 184 at 40, 48-49. In addition, Via testified that, because of the Board's recent financial distress, a step freeze was implemented in June 2015. See Id. at 56-57 (no advances in steps or lanes since June 30, 2015).

         Another way in which the actuary's calculations might have been slightly off were that they may have failed to account for the fact that an employee moves up a step on the anniversary date of his or her employment with the Board rather than at the start of the next school year. Ortega's anniversary date was January 26. R. 184 at 41. Therefore, Ortega would have begun a school year in September at her previous step and moved up to the next step about mid-way through the school year. The actuary's projected salary figures for each school year relied on the annual salary amounts shown in the CBA for each new step, when, according to the Court's interpretation of Via's testimony, Ortega's actual salary for a given school year would have been a blend of the salary shown on the CBA schedule applicable to that school year for her old, carry-over step (September through January) and the salary for her new, or next step up (February through June).

         Ortega argues that, after adjustments are made to her actuary's calculations to reflect what she believed the evidence at the hearing showed regarding step increases, her salary in the years following her termination would have been as follows:

School year



$85, 994


$90, 473


$89, 836


$91, 853


$93, 665


$95, 538

         The total lost earnings through August 2016 sought by Ortega is $547, 359. R. 178 at 6. While these numbers partially address the mistakes in some of the actuary's assumptions, they still appear to be somewhat inaccurate. Ortega appears to assume she would have moved to a step 15 after spending only one year at step 14 when Via testified there was a four year wait before moving from step 14 to 15. And while Ortega's counsel suggested at the hearing that she took into account the midyear change for when the move up in step occurs, she did not introduce evidence to prove that assertion. Finally, Ortega's newest calculations do not appear to take into account the 2 percent mandatory employee contribution to the pension fund, which her actuary deducted from the annual salary figures.

         The Board argues that Ortega's lost earnings had she not been terminated amount to only $524, 062. See R. 179 at 7. The Board's salary projections are shown on Exhibit Z, which was a document generated by the Board for purposes of the equitable relief hearing and introduced during Via's testimony. Via testified, however, that he was not involved in the preparation of Exhibit Z, and he was never asked whether he could attest to the accuracy of the calculations reflected in it. R. 184 at 52. Although Ortega did not object either to the admission of that document for lack of foundation, or to Via's testimony concerning the information contained in that document for lack of personal knowledge, the Court takes Via's admission of lack of personal knowledge into account in deciding what weight to give that document. The Board's salary calculations on Exhibit Z show only a biweekly pay figure, not an annual pay amount, and do not indicate the lane or step from which that biweekly pay figure is derived. Further, Via testified he did not know what lane or step was being applied. Therefore, it is difficult for the Court to make any kind of assessment as to the degree to which Exhibit Z accurately reflects what Ortega's salary would have been.

         “In determining the proper award of back pay, a court must make sure that any award is not speculative and does not put the plaintiff in a better position than she was before her termination.” Hathaway, 2006 WL 1594060, at *2 (citing Ilona of Hungary, Inc., 108 F.3d at 1580 (quoting United States v. City of Chicago, 853 F.2d 572, 575 (7th Cir. 1988) for the idea that “[t]he court must ‘do its best to recreate the conditions and relationships that would have existed if the unlawful discrimination had not occurred'”)). When confronted with “uncertainty which clouds the task” of computing a back pay award, however, the Seventh Circuit has “set down three general rules: (1) unrealistic exactitude is not required; (2) ambiguities in what an employee . . . would have earned but for discrimination should be resolved against the discriminating employer; [and] (3) the district court, far closer to the facts of the case than [the Court of Appeals] can ever be, must be granted wide discretion in resolving ambiguities.” Stewart v. Gen. Motors Corp., 542 F.2d 445, 452 (7th Cir. 1976).

         The Board argues the Court should disregard the calculations of Ortega's actuary because of the “numerous inaccuracies” the Board claims its cross-examination revealed. But the discrepancies resulting from predictions and/or presumptions made by the actuary did not call into question the basic accuracy of his calculations; they only suggested that his calculations were slightly off (the difference between the Board's calculation of loss wages and Ortega's revised calculation is around 4.5 percent). And, as previously noted, exactness is not required.[31] While the Court finds that Ortega's salary projections are reasonably accurate and supported by the record, it also has the necessary information to make adjustments to her calculations where the evidence supported a slightly different calculation. Based on the evidence, the Court finds the following projected salaries should be applied:

School Year Step
Salary 2% Pension Contribution Total Salary
2010-2011 1st half 13 $84,912 x ½ = $42,456 $849 $41,607
2d half 14 $85,994 x ½ = $42,997 $860 $42,137
2011-2012 14 $89,433 $1,789 $87,644
2012-2013 14 $88,815 $1,776 $87,039
2013-2014 1st half 14 $89,611 x ½ = $44,805 $896 $43,909
2d half 14b $90,591 x ½ = $45,296 $906 $44,390
2014-2015 1st half 14c $92,403 x ½ = $46,202 $924 $45,278
2d half 15a $93,665 x ½ = $46,833 $937 $45,896

         The step freeze went into effect in June 2015, when the 2012-2015 CBA expired. But in the 2015-2016 school year, Ortega would have remained at Step 15a in any event. After expiration of the 2012-2015 CBA, the Board and the Chicago Teachers Union failed to reach agreement on a new CBA, so there are no new salary schedules to apply to the 2015-2016 school year (and later). The actuary testified that he assumed that had there been new salary schedules, they would have provided for at least a two percent salary increase, and Via, the Board's expert witness, agreed that this assumption was reasonable. While Via testified to a step advancement freeze, no evidence was presented that all teacher salaries were frozen and teacher's received no pay increase whatsoever.[32] Therefore, for the 2015-2016 school year, the Court will assume a two percent pay increase in the Lane V, Step 15a salary that Ortega would have been receiving in the second half of the 2014-2015 school year ($93, 665 x 2%=$1, 873), making the projected earnings for that year $95, 538 less the 2 percent pension contribution ($1, 911), or $93, 627.

         Summary of Projected Earnings


$83, 744


$87, 644


$87, 039


$88, 299


$91, 174


$93, 627

         2. Actual Earnings

         The actuary obtained Ortega's actual earnings information from her tax returns, and then made adjustments to reflect that the relevant earnings figures are for school years rather than tax returns. See Exhibit 13. The Board also uses Ortega's tax returns to determine her actual earnings. See R. 179 at 7 (citing to Plaintiff's Exhibit 8). But the Board did not make any adjustments to account for the fact that Ortega's actual earnings, like her lost earnings had she remained in her job with the Board, must be calculated on a school year basis. Therefore, the Court will use the more accurate actual earnings figures calculated by the actuary.

         3. Net Lost Wages

         Putting together the above information, Ortega's net lost wages for each school year through August 15, 2016 are as follows:

Projected Earnings

Actual Earnings

Net Lost Wages


$83, 744

$29, 147

$54, 597


$87, 644

$15, 828

$71, 816


$87, 039

$21, 314

$65, 725


$88, 299

$40, 408

$47, 891


$91, 174

$49, 873

$41, 301


$93, 627

$52, 169

$41, 458

         Ortega's total net lost wages from June 2010 through August 2016 amounts to $322, 788.

         F. Prejudgment Interest

         Prejudgment interest is presumptively available on a back pay award. See Shott v. Rush-Presbyterian-St. Luke's Med. Ctr., 338 F.3d 736, 745 (7th Cir. 2003) (“in most cases prejudgment interest is an element of full compensation”); Gorenstein Enter., Inc. v. Quality Care-U.S.A., Inc., 874 F.2d 431, 436 (7th Cir. 1989) (“The time has come, we think, to generalize, and to announce a rule that prejudgment interest should be presumptively available to victims of federal law violations. Without it, compensation of the plaintiff is incomplete and the defendant has an incentive to delay.”).

         1. The ...

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