[Cite as Warden v. Ohio Dept. of Natural Resources, 2013-Ohio-1512.]




                                                       Court of Claims of Ohio
                                                                               The Ohio Judicial Center
                                                                       65 South Front Street, Third Floor
                                                                                  Columbus, OH 43215
                                                                        614.387.9800 or 1.800.824.8263
                                                                                   www.cco.state.oh.us



RICHARD W. WARDEN

       Plaintiff

       v.

OHIO DEPARTMENT OF NATURAL RESOURCES

       Defendant

Case No. 2011-01232

Judge Alan C. Travis

DECISION

        {¶ 1} Plaintiff brought this action alleging age discrimination under R.C. 4112.14
and 4112.99.        The issues of liability and damages were bifurcated and the case
proceeded to trial on the issue of liability. As a result of the liability trial, the court
entered judgment in favor of plaintiff. The case then proceeded to trial on the issue of
damages.
        {¶ 2} The following facts were set forth in the court’s decision on liability:
        {¶ 3} “Plaintiff is a registered professional engineer who was employed by
defendant for 29.5 years. On October 1, 2006, plaintiff accepted a two-year buyout and
retired from his position as a Natural Resources Engineer 4 in defendant’s Mineral
Resources Management (MRM) Division, after 31.5 years of state service. Plaintiff was
51 years old when he retired.
        {¶ 4} “Following plaintiff’s retirement, legislation was enacted that required
defendant to prepare an estimate of the cost to reclaim coal mining sites in the event
that the coal mining operator forfeited. To comply with the new legislation, defendant’s
Case No. 2011-01232                            -2-                                  ENTRY

MRM division was required to create a program that could perform such estimates. In
March 2007, MRM’s Division Chief, John Husted, contacted plaintiff to see if he would
resume his employment with MRM on an intermittent basis in order to develop the
required program. Plaintiff agreed and he was awarded a one fiscal year, ‘1000-hour’
contract as an Engineer 4. Plaintiff was subsequently granted three additional 1000-
hour contracts.
       {¶ 5} “In the fall of 2009, MRM division officials began discussing whether to
create a full-time Natural Resources Engineer 3 position to perform the work that
plaintiff was performing under his intermittent assignments. During these discussions,
Husted and Susan Grant, plaintiff’s immediate supervisor, approached plaintiff and
asked him whether he would be interested in a full-time Natural Resources Engineer 3
position. On November 20, 2009, plaintiff informed Grant that he was interested in the
position. (Plaintiff’s Exhibit 22.)
       {¶ 6} “In early 2010, defendant posted a position for a full-time Engineer 3. On
February 24, 2010, plaintiff applied for the posted position.           At the time of his
application, plaintiff was still working for defendant pursuant to his most recent 1,000-
hour contract. On March 31, 2010, Mamie Hollenback, defendant’s human resource
associate, mailed a letter to plaintiff notifying him that an interview had been scheduled
for him on April 29, 2010.            However, according to Hollenback, prior to plaintiff’s
interview, she informed the interview panel that former employees who had retired could
not be rehired in a full-time position. Plaintiff’s interview went forward as scheduled. At
the conclusion of the interviews, plaintiff had earned the highest overall score.
       {¶ 7} “On May 5, 2010, Husted informed plaintiff that it was not likely that he
would be selected for the full-time position because he was a retiree. Grant and Lanny
Erdos, Deputy Chief of the Coal Regulatory Mine Safety and Industrial Minerals
program, also informed plaintiff that he would not be selected for the full-time Engineer
3 position because the administration would not allow an individual who had retired from
Case No. 2011-01232                         -3-                                 ENTRY

the agency to be rehired into another full-time position. Plaintiff complained to Husted,
Grant, and Erdos, that such a policy would result in the employment of a less qualified
individual. Plaintiff’s final day in defendant’s employment was June 5, 2010.
       {¶ 8} “Defendant eventually selected Jared Knerr for the Engineer 3 position.
Knerr was 39 years old when he was hired. Plaintiff was 54 years old when he learned
that he had been rejected for the full-time position.”
       {¶ 9} The court found that defendant’s decision to offer the position to Knerr
rather than plaintiff constituted age discrimination in violation of R.C. Chapter 4112.
“When a party is injured by a violation of R.C. Chapter 4112, they are entitled to ‘make
whole’ relief. Ohio Civ. Rights Comm. v. David Richard Ingram, D.C., Inc., 69 Ohio
St.3d 89, 93 (1994). A plaintiff is made whole by being returned to the position the
plaintiff would have occupied had the discrimination not occurred. McNeil v. Economics
Laboratory, Inc., 800 F.2d 111, 118 (7th Cir.1986). Normally, this means the plaintiff is
entitled to reinstatement.” Burchett v. E. Liverpool Dodge Chrysler Plymouth, Jeep, 7th
Dist. No. 2001-CO-16, 2002-Ohio-3045, ¶ 23-24.
       {¶ 10} Although reinstatement is the preferred remedy, where it would be
inappropriate or impractical, front pay is available as an equitable remedy to make the
injured party whole through financial compensation. Berge v. Columbus Community
Cable Access, 136 Ohio App.3d 281, 323 (10th Dist.1999). “Front pay is awarded only
‘where reinstatement is inappropriate and the plaintiff has been unable to find another
job, in order to make victims of discrimination whole where the fact finder can
reasonably predict that the plaintiff has no reasonable prospect of obtaining comparable
employment.’” Jordan v. Ohio Civ. Rights Comm., 173 Ohio App.3d 87, 2007-Ohio-
3830, ¶ 44 (12th Dist.), quoting Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1182
(2nd Cir.1996).
       {¶ 11} Additionally, an award of back pay serves “to make the wrongfully
terminated employee whole and to place that employee in the position the employee
Case No. 2011-01232                         -4-                                    ENTRY

would have been in absent a violation of the employment contract.’ * * * In order to
recover back pay, a plaintiff has a duty to mitigate.        ‘Interim earnings or amounts
earnable with reasonable diligence * * * shall operate to reduce the back pay otherwise
allowable.’ * * * ‘This duty, rooted in an ancient principle of law, requires the claimant to
use reasonable diligence to find other suitable employment. Although the unemployed
or underemployed claimant need not go into another line of work, accept a demotion, or
take a demeaning position, he forfeits his right to back pay if he refuses a job
substantially equivalent to the one he [lost].’” Id. at ¶ 43, quoting Ford Motor Co. v.
E.E.O.C., 458 U.S. 219, 231 (1982). “The award of back pay for lost earnings given for
the period between discharge and either reinstatement or time of trial must be reduced
by any income the employee earned.” Worrell v. Multipress, Inc., 45 Ohio St.3d 241,
246 (1989), fn. 3. “Any ambiguity in what the claimant would have received but for
discrimination should be resolved against the discriminating employer.” Rasimas v.
Mich. Dept. of Mental Health, 714 F.2d 614, 628 (6th Cir.1983).
       {¶ 12} Plaintiff testified at the damages phase of the trial that upon learning he
had been rejected for the position, he began to monitor employment websites to look for
engineering jobs in his specialized field. Plaintiff explained, though, that while he has
seen job postings for other fields of engineering, as well as postings for consulting jobs
related to his field but that require a master’s degree or Ph.D., he has been unable to
find a full-time position in the Columbus area that matches his experience and
education (e.g., bachelor’s degree).
       {¶ 13} Plaintiff testified that he worked as a part-time cashier at a Lowe’s home
improvement store from September 2010 to February 2011, and that in January 2011,
he applied for but did not obtain a receptionist position at a medical office where his wife
works. Plaintiff also stated that he formed an engineering consulting business through
which he has worked on a few projects for Ohio State University, American Electric
Power, and Columbus Southern Power, and that he has done some limited teaching of
Case No. 2011-01232                         -5-                                    ENTRY

online continuing education courses through the website PDHengineering.com. Plaintiff
testified that he continues to look for full-time engineering work.
       {¶ 14} Plaintiff acknowledged that when Husted initially made an offer for him to
return to work as a contractor in December 2006, he declined. And, during the last of
plaintiff’s 1000-hour contracts with defendant, he had a discussion with Grant via e-mail
about his potential interest in the new Natural Resources Engineer 3 position.
(Plaintiff’s Exhibit 22.) In that exchange, plaintiff stated that he desired a “Starting rate
no lower than my present rate” of pay ($30.68/hour under the contract) and that “Any
chance I start less than today’s rate, and the decision will be made for me.”             Id.
Ultimately, after Knerr had been selected for the position, Husted submitted an
“approval request form” to defendant’s office of human resources seeking to hire Knerr
as a Natural Resources Engineer 3, Step 4, to be compensated at $31.09 an hour.
(Plaintiff’s Exhibit 10.) Knerr, however, who had less relevant experience than plaintiff,
was only approved at a Step 1 level, to be compensated at $27.93 an hour. (Joint
Exhibit F.) Plaintiff also stated in his e-mail exchange with Grant that he had discussed
future plans with his wife and that “She’s okay with 5 years of me being full-time” at
defendant. (Plaintiff’s Exhibit 22.) At trial, plaintiff stated that he wanted to return to
work for defendant to finish the mine reclamation cost estimate project.
       {¶ 15} Upon review, the court finds that the greater weight of the evidence
demonstrates that plaintiff exercised reasonable diligence in looking for other suitable
employment after being rejected for the Natural Resources Engineer 3 position. Plaintiff
testified credibly that he has monitored employment websites at least weekly since that
time but has not been able to find full-time work that matches his particular background
and education. There is no evidence that plaintiff has declined any job opportunities
substantially equivalent to the one for which defendant rejected him.           Plaintiff has
nonetheless found opportunities to perform some limited consulting work in his field,
and although he was under no duty to go into another line of work, he did seek out jobs
Case No. 2011-01232                        -6-                                    ENTRY

as a cashier and receptionist. The court thus finds that plaintiff is entitled to recover
back pay beginning from August 2, 2010, the date of the rejection letter, minus his
interim earnings.
      {¶ 16} The court further finds that reinstatement is inappropriate under the
circumstances. The evidence demonstrates that Knerr, an innocent party, is now in his
third year of filling the Natural Resources Engineer 3 position, and that when plaintiff
negotiated for the position in 2010, he only intended to work for a period of five years.
The court also finds, however, that plaintiff is entitled to an award of front pay inasmuch
as the weight of the evidence establishes that plaintiff would have accepted the position
if it had been offered to him and would have remained so employed for a five-year
period, and that plaintiff does not have a reasonable prospect of obtaining comparable
employment.
      {¶ 17} Accordingly, the court finds that plaintiff is entitled to an award of back pay
and front pay equivalent to the amount he would have earned had he held the job for
five years.   Plaintiff presented expert testimony on the issue of damages from
economist John Burke, Ph.D., who testified that the present value of plaintiff’s after-tax
lost earnings and benefits over that five year period, reduced by his interim earnings
and anticipated future earnings from his consulting business, amounts to $426,003; he
specified that $157,411 of that amount represents back pay as of the date of trial, with
the remainder representing front pay.      Although defendant challenges Dr. Burke’s
assumption that plaintiff would have started at a salary of $64,000, earned step
increases beyond what Knerr actually earned, and earned fringe benefits equivalent to
34.5% of his salary, the court finds that these figures are supported by the evidence.
The benefits and starting salary figures correspond to the “approval request form” that
Husted submitted when hiring Knerr, and although the office of human resources
ultimately approved the hire at a lower salary, the court is persuaded that in light of
Case No. 2011-01232                          -7-                                      ENTRY

plaintiff’s greater experience, he would have been hired at the requested rate and
earned the step increases assumed by Burke. (Plaintiff’s Exhibit 10.)
       {¶ 18} Plaintiff also seeks post-judgment interest on the award of back pay at the
current statutory rate of 3% per annum pursuant to R.C. 2743.18(B). In its post-trial
briefs, defendant acknowledges that the statute allows for the same. Accordingly, post-
judgment interest shall be allowed on plaintiff’s back pay award in accordance with R.C.
2743.18(B).
       {¶ 19} Plaintiff also seeks to recover for the increased tax liability associated with
receiving the back pay as a lump-sum award, rather than over time. Dr. Burke testified
that the increased tax liability amounts to $17,358. Defendant does not address this
issue in its post-trial briefs. “[A]n award to compensate a prevailing employee for her
increased tax burden as a result of a lump sum award will, in the appropriate case, help
to make a victim whole. This type of an award, as with prejudgment interest, represents
a recognition that the harm to a prevailing employee’s pecuniary interest may be
broader in scope than just a loss of back pay. Accordingly, either or both types of
equitable relief may be necessary to achieve complete restoration of the prevailing
employee’s economic status quo and to assure ‘the most complete relief possible.’”
Eshelman v. Agere Sys., Inc., 554 F.3d 426, 442 (3rd Cir.2009), quoting Local 28 of
Sheet Metal Workers’ Internatl. Assn. v. E.E.O.C., 478 U.S. 421 (1986). The court finds
that plaintiff is entitled to recover for his increased tax liability in the amount of $17,358.
       {¶ 20} Furthermore, in the case of a retired individual who receives a pension
through the Ohio Public Employees Retirement System (OPERS) and returns to public
employment, the individual is then required to contribute a portion of his or her salary to
a Money Purchase Plan administered by OPERS.                Upon separation from the latter
position of employment, the individual is entitled to a lump sum payment from the
Money Purchase Plan.        According to Dr. Burke’s calculations, if plaintiff had been
awarded the Natural Resources Engineer 3 position and worked for five years, his lump
Case No. 2011-01232                        -8-                                   ENTRY

sum payment would be $2,186. The court finds that plaintiff is entitled to recover that
amount.
      {¶ 21} On August 31, 2012, plaintiff filed a motion for attorney’s fees pursuant to
R.C. 4112.14(B).     Also on August 31, 2012, plaintiff filed a motion for leave to
supplement Plaintiff’s Exhibit 32 with records of additional litigation costs, which is
GRANTED instanter.       On September 17, 2012, defendant filed a memorandum
opposing the motion for attorney’s fees. Plaintiff filed a reply on September 21, 2012.
That same day, plaintiff also filed both an application for leave to exceed the page
limitations for his post-trial brief pursuant to L.C.C.R. 4(E), and a motion for leave to
supplement his motion for attorney’s fees, both of which are GRANTED instanter.
      {¶ 22} Pursuant to R.C. 4112.14(B), “[i]f the court finds that an employer has
discriminated on the basis of age, the court shall order an appropriate remedy which
shall include reimbursement to the applicant or employee for the costs, including
reasonable attorney’s fees, of the action * * *.”         Having found that defendant
discriminated on the basis of age in this case, and finding the costs and fees incurred by
plaintiff in pursuing this action to be reasonable, plaintiff’s motion for the same is
GRANTED. Plaintiff shall be awarded costs in the amount of $8,564.75, which includes
the $25 filing fee, and attorney’s fees in the amount of $53,545.
      {¶ 23} For the reasons set forth above, the court finds that plaintiff is entitled to
recover total damages in the amount of $507,656.75, which includes an award of back
pay in the amount of $157,411. Post-judgment interest shall be allowed on plaintiff’s
back pay award in accordance with R.C. 2743.18(B).          Judgment shall be rendered
accordingly.
Case No. 2011-01232                         -9-                                         ENTRY




                                               Court of Claims of Ohio
                                                                          The Ohio Judicial Center
                                                                  65 South Front Street, Third Floor
                                                                             Columbus, OH 43215
                                                                   614.387.9800 or 1.800.824.8263
                                                                              www.cco.state.oh.us

RICHARD W. WARDEN

      Plaintiff

      v.

OHIO DEPARTMENT OF NATURAL RESOURCES

      Defendant

Case No. 2011-01232

Judge Alan C. Travis

JUDGMENT ENTRY

       {¶ 24} This case was tried to the court on the issue of damages. The court has
considered the evidence and, for the reasons set forth in the decision filed concurrently
herewith, judgment is rendered in favor plaintiff, Richard W. Warden, in the amount of
$507,656.75, which includes an award of back pay in the amount of $157,411. Post-
judgment interest shall be allowed on plaintiff’s back pay award in accordance with R.C.
2743.18(B). Court costs are assessed against defendant. The clerk shall serve upon
all parties notice of this judgment and its date of entry upon the journal.

                                           _____________________________________
                                           ALAN C. TRAVIS
                                           Judge
Case No. 2011-01232               - 10 -                               ENTRY

cc:


Emily M. Simmons                    Merl H. Wayman
Randall W. Knutti                   425 Metro Place North, Suite 420
Assistant Attorneys General         Dublin, Ohio 43017
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130

001
Filed January 15, 2013
To S.C. Reporter April 16, 2013
