Petition for Writ of Certiorari — Aaron Jensen, Petitioner v. West Jordan City, Utah

Case No.

IN THE

Supreme Court of the United States

AARON JENSEN,

Petitioner,

v.

WEST JORDAN CITY,

Respondent.

On Petition For Writ Of Certiorari

To The U nited S tates Court Of Appeals For The Tenth

Circuit

PETITION FOR WRIT OF CERTIORARI

APRIL L. HOLLINGSWORTH

Counsel of Record

HOLLINGSWORTH LAW OFFICE, LLC

1881 South 1100 East

Salt Lake City, UT 84105

(801) 415-9909

april@aprilhollingsworthlaw.com

Counsel for Petitioner

i

QUESTIONS PRESENTED

It is well understood that plaintiffs can and should, for strategic reasons,

bring claims under every theory of liability that may apply to a defendant’s conduct

and the plaintiff’s damages. Likewise, it is well understood that a plaintiff is not

entitled to a double recovery even if he prevails on multiple theories of liability.

Underlying these clear rules is substantial confusion among the courts regarding

whether and how damages should be apportioned per claim, particularly when the

claims include one with a damages cap.

This case presents a number of questions this Court should answer:

1. When a plaintiff prevails on multiple claims against a defendant for the

same damages, what factors determine how or whether the damages are

to be apportioned or allocated among the various claims? Does the jury

make the determination, or a judge after the verdict is rendered? When

one of the theories includes a damages cap and the verdict exceeds the

cap, should the award be apportioned to maximize the plaintiff’s recovery?

2. Whether the value of pension benefits awarded to a plaintiff for a Title VII

violation to compensate for his inability to return to his prior profession

are, on the one hand, back pay, front pay, or equitable relief as were

available under the pre-1991 statute, or on the other hand, “future

pecuniary losses” under the expanded remedies available after the 1991

amendments, and therefore subject to the statutory caps on damages?

ii

PARTIES TO THE PROCEEDING

Petitioner Aaron Jensen was the Plaintiff when this lawsuit was filed, and

the Appellant and Cross-Appellee in the appeal to the Tenth Circuit. He is a private

citizen, and a former employee of the Respondent, West Jordan City.

Robert Shober was named as a defendant to the lawsuit in his official

capacity. The district court’s decision denying Jensen’s motion to add Shober as a

defendant in his personal capacity was one of the issues in Jensen’s appeal to the

Tenth Circuit, so Shober was an appellee in the appeal. He is not a party in this

petition.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...................................................................................................... i

PARTIES TO THE PROCEEDING ........................................................................................... ii

TABLE OF AUTHORITIES ......................................................................................................v

PETITION FOR A WRIT OF CERTIORARI .............................................................................. 1

OPINIONS BELOW................................................................................................................ 1

JURISDICTION ..................................................................................................................... 1

STATEMENT OF THE CASE .................................................................................................. 2

Factual Background .................................................................................................... 2

Proceedings Below ....................................................................................................... 7

REASONS FOR GRANTING THE WRIT .................................................................................. 8

I. The Tenth Circuit’s Decision Regarding Apportioning Damages

Conflicts with the Reasoning and Outcome of Every Other

Circuit to Decide this Issue ................................................................................... 8

II. This Court Should Determine Whether Pension Benefits Lost

Because a Plaintiff Could Not Resume His Career Due to the

Defendant’s Retaliation are Subject to Title VII’s Damages Cap ................... 16

CONCLUSION ..................................................................................................................... 22

iv

APPENDIX

Page

Opinion in the United States Court of Appeals for the Tenth Circuit

(August 4, 2020)...............................................App. Error! Bookmark not defined.

Judgment of the United States District Court in and for District of Utah

(July 5, 2017) ....................................................................................................... App. 53

Memorandum Decision and Order of the United States District Court in

and for the District of Utah (October 13, 2017) ................................................ App. 55

Order by the United States Court of Appeals for the Tenth Circuit

Denying Appellant’s Petition for Rehearing (September 29, 2020 ............... App. 107

Transcript of Couillard testimony ...................................................................... App. 109

Transcript of Jury Instruction/Verdict Form Conference ................................ App. 141

Transcript of Initial Jury Verdict ....................................................................... App. 238

Second Jury Verdict ............................................................................................. App. 254

Constitutional and Statutory Provisions Involved ........................................... App. 260

v

TABLE OF AUTHORITIES

Cases

Page

Czarnowski v. Desoto, Inc.,

518 F. Supp. 1252 (E.D. Ill. 1981) .............................................................................. 21

Denhof v. City of Grand Rapids,

494 F.3d 534 (6th Cir. 2007) ...................................................................................... 12

Fox v. Ford Motor Co.,

575 F.2d 774 (10th Cir. 1978)..................................................................................... 14

Gagliardo v. Connaught Labs, Inc.,

311 F.3d 565, (3d Cir. 2002) ....................................................................................... 11

Hall v. Consol. Freightways Corp.,

337 F.3d 669, (6th Cir. 2003) ...................................................................................... 11

Kimzey v. Wal-Mart Stores, Inc.,

107 F.3d 568 (8th Cir. 1997) ....................................................................................... 11

Madison v. IBP, Inc.,

257 F.3d 780 (8th Cir. 2001) ....................................................................................... 14

Martini v. Fed. Nat’l Mortgage Ass’n.,

178 F.3d 1336 (D.C.Cir. 1999) ...................................................................... 8, 9, 11, 12

Miller v. Raytheon Co.,

716 F.3d 138 (5th Cir. 2013) ....................................................................................... 13

Nassar v. Univ. of Texas Sw. Med. Ctr.,

674 F.3d 448 (5th Cir. 2012) ....................................................................................... 20

Passantino v. Johnson & Johnson,

212 F.3d 493 (9th Cir. 2000) ......................................................................... 8, 9, 10, 11

Pollard v. E.I. du Pont de Nemours & Co.,

532 U.S. 843 (2001) ......................................................................................... 16, 17, 19

Rodriguez-Torres v. Caribbean Forms Mfg.,

399 F.3d 52 (1st Cir. 2005) ............................................................................. 10, 11, 12

Rutherford v. American Bank of Commerce,

565 F.2d 1162 (10th Cir. 1977)................................................................................... 20

Sherman v. Burke Contracting, Inc.,

861 F.2d 1527 (11th Cir. 1990)................................................................................... 20

Szeinbach v. Ohio State University,

820 F.3d 814 (6th Cir. 2016) ........................................................................... 19, 20, 21

Torres v. Caribbean Forms Mfr.,

286 F.Supp.2d 209 (D. Puerto Rico 2003) ........................................................... 10, 11

vi

TABLE OF AUTHORITIES — CONTINUED

Cases

Page

Williams v. Pharmacia, Inc.,

137 F.3d 944 (7th Cir. 1998) ................................................................................. 18, 19

Statutes

28 U.S.C. § 1254(1)............................................................................................................ 1

42 U.S.C. § 1981 .............................................................................................................. 15

42 U.S.C. § 1981a(a)(1) ................................................................................................... 17

42 U.S.C. § 1981a(b)(3) ................................................................................................... 18

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner Aaron Jensen respectfully seeks a writ of certiorari to review the

judgment of the United States Court of Appeals for the Tenth Circuit.

OPINIONS BELOW

The opinion of the Tenth Circuit Court of Appeals is reported at 968 F.3d

1187, and reproduced at App. 1. The District Court’s opinion is reproduced at App.

55-106.

JURISDICTION

The Court of Appeals issued its judgment on August 4, 2020 and denied

rehearing on September 29, 2020. App. 107. This Court has jurisdiction under 28

U.S.C. §1254(1).

2

STATEMENT OF THE CASE

Factual Background

Prior to 2010, Petitioner Aaron Jensen was a 12 ½ year veteran of the

defendant West Jordan City Police Department. On several occasions, Jensen

complained to police officials about being subjected to repeated sexual harassment.

Eventually, the parties agreed to a settlement of that harassment claim. Pursuant

to that settlement, West Jordan City paid Jensen $80,000 and Jensen resigned from

the Police Department in April 2009. As part of that agreement, the City agreed not

to retaliate against Jensen.

After leaving his employment with West Jordan City, Jensen intended to

resume his law enforcement career with some other jurisdiction. Following Jensen’s

resignation, however, West Jordan City officials claimed to have found narcotics in

Jensen’s office and evidence that he had misused public money, and they caused

him to be arrested and criminally prosecuted by a different police department on

three felony charges in May 2010. Jensen’s mugshot was widely published in print

and televised stories about his arrest, and he was terminated from the job he had at

the time. West Jordan City officials then influenced the prosecution, including

providing false or misleading testimony at the preliminary hearing on those

charges. The arrest and prosecution were fatal to Jensen’s efforts to obtain

employment as a law enforcement officer. In the wake of that arrest and felony

charges, no law enforcement agency would hire Jensen—even though the charges

were later dismissed and the records ultimately expunged. Due to the delay in being

able to work in law enforcement, Jensen lost his Police Officer Standard and

3

Training (“P.O.S.T.”) certification. In the years following his arrest, as a result of

being unemployed and disgraced, Jensen lost his home and his marriage, and was

frequently suicidal.

Jensen sued West Jordan City under several theories of liability for the

pecuniary and non-pecuniary damages caused by the City’s conduct in pursuing

baseless criminal charges against him: Title VII of the Civil Rights Act of 1964,

based on the City’s retaliation against him for his sexual harassment claim;

Malicious Prosecution in violation of the Fourth Amendment (brought under 42

U.S.C. § 1983); Free Speech Retaliation in violation of the First Amendment (also

under Section 1983), for retaliation against him for his speaking out against public

officials’ misconduct; and breach of contract and breach of the covenant of good faith

and fair dealing, based on the City’s breach of the non-retaliation provision of the

settlement agreement it had entered into with him regarding his sexual harassment

allegations.

Jensen’s claims were tried to a jury in June 2017. Jensen, his father, and his

therapist all testified about his significant emotional distress due to the City’s

conduct in having him arrested on false charges, and the subsequent years he spent

trying to clear his name.

Jensen’s claim for pecuniary relief was limited to the effect of the retaliation

on his police pension. App. 110-11. Local law enforcement officials in Utah are part

of a single pension system, which bases benefits on a former officer’s total service in

one or more law enforcement agencies. App. 114-16. The amount a recipient

4

receives is 2.5% of his or her final salary for each year of service, up to a total of 20

years. App. 121. A recipient is entitled to begin drawing that pension after 20 years

of service, regardless of age; a recipient without 20 years of service can draw the

pension at age 60. Jensen contended that, but for the retaliation, he would have

been hired as a law enforcement officer in 2010 and, as a result, would have had

substantially greater pension rights. Jensen presented testimony from a forensic

accountant about the difference in the amount of pension benefit he will receive

when he turns 60 versus what he would have received if he had been able to reach

20 years of service, which the accountant assumed could have happened as early as

December 1, 2016 or 2017 (six months after the trial). App. 109-140. The

accountant testified that the range of lost benefits was between $1,074,000 and

$1,101,093. App. 126.

Neither party provided any testimony that distinguished either the pecuniary

or non-pecuniary damages by legal theory. The jury instructions warned the jury

against awarding damages “more than once for the same injury,” but did not

explain how to avoid that or how certain damages might be attributable to different

claims. During trial, the parties hotly debated the structure of the verdict form to be

provided to the jury. In response to West Jordan City’s proposed form that asked

the jury to determine what amounts of damages were attributable to each claim,

Jensen argued, “I don’t think that there is a realistic way of allocating damages.”

App. 210. The court responded, “Yet they do. We ask them to do it. It may not be

realistic, but we ask them to do it all the time and somehow they do.” App. 210-11.

5

At the end of the trial, the judge used a verdict form that permitted the jury to

allocate specific damages to each of those claims, but which also gave the jury the

option of awarding the damages under all claims. Jensen’s counsel objected to the

verdict form that permitted the jury to allocate damages among the claims. Counsel

argued again that the legal claims arose from the same misconduct and had

resulted in the same harm, and there was no realistic way to allocate damages

among the various claims.

The jury found the City liable under all of plaintiff’s claims. App. 239-45. The

jury awarded a total of $1,024,400 for economic injuries, only slightly less than the

amount of additional pension benefits which Jensen’s expert calculated Jensen

would have received if he had been able to reach his 20-year retirement by the end

of 2017. App. 243. The jury also awarded Jensen $1,750,000 for pain and suffering.

App. 244. The jury did not allocate any portion of the total of $2.77 million in

damages to any distinct claims. Instead, the jury reported that the amount allocable

to each claim was zero. App. 239-45.

Following this initial verdict, over Jensen’s counsel’s objections, the court

instructed the jury, “We need you to go back and allocate, as best you can, the [total

damages award] for the various claims as best you can do that. So we’ll send you

back to deliberate on that.” App. 247. When the jury returned, it had allocated

almost all of the damages to the first claim on the verdict form, which was the Title

VII claim—$1,000,400 in economic damages and $1,740,000 in non-economic

damages. App. 247-49. The jury allocated the remainder of the original award

6

($34,000) to the other claims, in mostly $4,000 increments. Id.; App. 254-59. The

only claim that had a damages cap was the Title VII claim. App. 250.

West Jordan City then filed a motion to reduce the damages award. It argued

that the Title VII damages cap, in this instance $300,000, applied to the award of

economic damages as well as the award for non-economic damages. The district

court agreed, finding that “Jensen’s lost retirement benefits are similar to lost

future earnings, which are based on a general harm to reputation” and therefore,

are subject to Title VII’s caps on compensatory damages. App. 61-62. The district

court reduced the jury award of $2.77 million to $334,000. App. 53-54.

Jensen appealed to the Tenth Circuit, asserting that the post-verdict

instruction issued by the judge misstated the law and improperly required the jury

to allocate its award. Jensen also argued that the $1,000,400 in economic damages

awarded by the jury under Title VII were not subject to the Title VII damages cap.

A divided panel affirmed the decision of the district court. App. 1-52. The dissenting

judge argued that the district court’s post-verdict instruction was inconsistent with

Tenth Circuit precedent and substantially risked improperly influencing the jury.

App. 34-39.

7

Proceedings Below

Petitioner Jensen filed two appeals from the district court’s decisions (Tenth

Circuit Nos. 17-4173 and 17-4196), and Defendant West Jordan City filed a crossappeal (17-4181). The Tenth Circuit consolidated all of the appeals, and its decision

at issue in this petition disposed of all issues in the appeals and cross-appeal.

8

REASONS FOR GRANTING THE WRIT

I.

The Tenth Circuit’s Decision Regarding Apportioning Damages

Conflicts with the Reasoning and Outcome of Every Other Circuit

to Decide this Issue

The Tenth Circuit is hardly the first circuit to have wrestled with the

question of whether and how to apportion damages among various claims. Most of

the circuits that have considered whether to allocate damages among claims that

include a damages cap have relied on the D.C. Circuit’s decision in Martini v. Fed.

Nat’l Mortgage Ass’n., 178 F.3d 1336 (D.C. Cir. 1999) and the Ninth Circuit’s

decision in Passantino v. Johnson & Johnson, 212 F.3d 493 (9th Cir. 2000).

In Martini, the plaintiff sued for sexual harassment and retaliation under

Title VII and the D.C. Human Rights Act. At trial, the judge provided the jury with

one set of instructions that covered the plaintiff’s claims under both statutes.

Martini, 178 F.3d at 1339. The verdict form, however, (to which both parties

objected) provided for the jury to assess damages under each statute. Id. at 1349.

The jury awarded substantial damages under both statutes: “$153,500 in backpay,

$1,894,000 in front pay and benefits, and $3,000,000 in punitive damages under

Title VII, as well as $615,000 in compensatory damages and $1,286,000 in punitive

damages under the D.C. Human Rights Act.” Id. at 1339. The district court then

reduced the “damages (excluding backpay) to $300,000.” Id. The D.C. Circuit

reversed, finding that “the portion of Title VII damages exceeding the statutory cap

should have been reallocated to her recovery under the D.C. Human Rights Act.” Id.

The Martini court reasoned, “Were we not to treat damages under federal and local

law as fungible where the standards of liability are the same, we would effectively

9

limit the local jurisdiction’s prerogative to provide greater remedies for employment

discrimination than those Congress has afforded under Title VII.” Id. at 1349-50.

In Passantino, decided less than a year after Martini, a female employee

brought claims of gender discrimination and retaliation under Title VII and the

state anti-discrimination statute, which were tried to a jury in the United States

District Court for the Western District of Washington. “[T]he jury found for

Passantino on both federal and state law retaliation claims, and awarded damages

without specifying any particular allocation.” Passantino, 212 F.3d at 509. “Faced

with the general verdict, the district court chose to allocate the award to the state

rather than the federal claim,” such that the award was not subject to the Title VII

caps. Id. The Ninth Circuit affirmed this decision, finding that “the most reasonable

assumption” from the jury’s unallocated verdict was “that the jury awarded the

same damages on both the federal and state claims.” Id. But the court found the

damages awarded to be “duplicative,” “because the two claims were essentially the

same; they involved the same conduct and were evaluated under the same legal

standard.” Id. Therefore, “[i]n the absences of a contrary directive, such as a

statutory mandate that damages be allocated to one claim rather than another, the

district court had authority to allocate the damages to either claim.” Id. Citing to

Martini, the Passantino decision found “the awards were effectively fungible, and

the district court’s action was entirely within its discretion and consistent with the

jury’s verdict.” Id.

10

This last point was important to the decision in Passantino. The court noted

that because “[t]he jury’s entire compensatory damages award was lawful under

state law, and its punitive damage award was lawful under federal law (subject to

any constitutionally valid limitation imposed by the statutory cap)”, “[a]n allocation

that would serve to reduce lawfully awarded damages would fail to respect the

jury’s verdict and conflict with the purpose and intent of one of both statutes.” Id. at

510. Further, the Passantino decision stated “that, in circumstances such as these,

subjecting the whole damage award to Title VII’s cap would be inconsistent with

Title VII’s provisions [against limiting state remedies].” Id.

The First Circuit, like many others, followed the lead of Martini and

Passantino in Rodriguez-Torres v. Caribbean Forms Mfg., 399 F.3d 52 (1st Cir.

2005). In 2003, a jury in the District of Puerto Rico reached a verdict in favor of the

plaintiff in an employment discrimination case brought under Title VII and the

Puerto Rican discrimination statute. Torres v. Caribbean Forms Mfr., 286

F.Supp.2d 209 (D. Puerto Rico 2003). The jury awarded the plaintiff $250,000 in

compensatory damages, but did not specify whether the damages were for the Title

VII claim or the Commonwealth discrimination statute. The jury also awarded the

plaintiff $250,000 in punitive damages for the Title VII claim. Id. at 219. Following

the verdict, in light of the $200,000 cap on compensatory and punitive damages

based on the size of the employer, the trial judge reduced the punitive damages

award to $199,999 and allocated $1 of the compensatory damage award to the Title

11

VII claim. Id. The judge allocated the remaining $249,999 the jury awarded for

compensatory damages to the Commonweath claim, which had no damages cap. Id.

In affirming the trial court’s apportionment of the damages award among the

claims, the First Circuit examined the approaches of several other courts of appeals

that “have addressed the problem of allocating damages where the jury provides

award for parallel state and federal discrimination claims but the award exceeds

the applicable federal cap.” Rodriguez-Torres, 399 F.3d at 66. The court found, “All

have approved the method employed by the district court here, namely, considering

the unspecified award as fungible between the state and federal claims and

allocating the award so as to maximize the plaintiff's recovery while adhering to the

Title VII cap.” Id., citing Hall v. Consol. Freightways Corp., 337 F.3d 669, 678-79

(6th Cir. 2003); Gagliardo v. Connaught Labs, Inc., 311 F.3d 565, 570-71 (3d Cir.

2002); Passantino v. Johnson & Johnson, 212 F.3d 493, 509-10 (9th Cir. 2000);

Martini v. Fed. Nat’l Mortgage Ass’n, 178 F.3d 1336, 1349-50 (D.C.Cir. 1999);

Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 576 (8th Cir. 1997).

The Rodriguez-Torres decision listed another reason for its decision that

deserves mention: “First, where the jury makes an unapportioned award, there is

no basis for believing that the jury favored applying the damages to the federal over

the state claim.” Id. While Petitioner agrees with the outcome affirmed in

Rodriguez-Torres, this explanation raises important questions. Implicit in this

rationale for the apportionment — that “there is no basis for believing that the jury

favored applying the damages to the federal over the state claim” — is that there is

12

a basis for applying the damages to the federal over the state claim, and that such a

decision is the province of the jury. Based on the lack of guidance in any case law in

any jurisdiction on this point, however, it is not clear what such a basis might be.

The Rodriguez-Torres decision also adopted the reasoning from Martini that

“allocating the excess damages to the state law claim respects ‘the local

jurisdiction’s prerogative to provide greater remedies for employment

discrimination than those Congress has afforded under Title VII.” Id. at 66, citing

Martini, 178 F.3d at 1349-50. On this point, many different jurisdictions have

agreed, as the Rodriguez-Torres decision noted. In upholding the jury’s decision to

make an uninformed allocation in this case, however, the Tenth Circuit’s approach

in this case effectively limited the verdict regarding several uncapped claims by the

Title VII caps.

Several other circuits have made decisions achieving results similar to that of

Martini, Passantino, and Rodriguez-Torres—giving the plaintiff the maximum

recovery by allowing them to recover damages under the statutes without damages

caps—but the varying means of doing so demonstrate the need for direction from

this Court as to how such situations should be handled. The Sixth Circuit has

determined that after a jury awarded compensatory damages to the plaintiffs

“based on both federal and state law claims, the plaintiffs were entitled to elect

which statute they would receive damages under.” Denhof v. City of Grand Rapids,

494 F.3d 534, 548 (6th Cir. 2007).

13

The Fifth Circuit holds that the decision on how to apportion damages is the

court’s to make, and that it can only apply the damages to one of the prevailing

statutes. In Miller v. Raytheon Co., a Texas jury determined that Raytheon had

violated both the Age Discrimination in Employment Act (“ADEA”) and the Texas

anti-discrimination statute by discriminating against the plaintiff based on his age.

716 F.3d 138, 142 (5th Cir. 2013). The jury awarded back pay and lost pension

benefits, “both of which were doubled as ADEA liquidated damages”, as well as $1

million in mental anguish damages and $15 million in punitive damages under the

Texas statute. Following the trial, the district court adjusted the jury’s verdict,

allowing damages under only one of the statutes, and in doing so, “declined to

award punitive damages in order to prevent a double recovery.” Id. at 143. In

response to the plaintiff’s appeal of this aspect of the district court’s decision, the

Fifth Circuit stated, “When a federal claim overlaps with a pendant state claim, the

plaintiff is entitled to the maximum amount recoverable under either the federal or

state claim. . . . Accordingly, Miller may recover under only one statute, and the

district court correctly granted him the higher recovery available under the ADEA.”

Id. at 147 (emphasis added).

Other circuits allow the court to apply the damages to multiple statutes to

maximize the plaintiff’s recovery. In Madison v. IBP, Inc., for instance, the Eighth

Circuit affirmed the district court’s decision to apply portions of the jury’s verdict to

claims under both Title VII and 42 U.S.C. § 1981, and to grant the plaintiff’s

request “to allocate the $110,000 compensatory damage award for sexual

14

discrimination and harassment to her state law claims, thereby avoiding the Title

VII damages limitation.” 257 F.3d 780, 792 (8th Cir. 2001). Relying on Passantino v.

Johnson & Johnson, the Eight Circuit agreed that the plaintiff’s claims were

“effectively fungible” among the various claims, and allowed the lower court to mix

and match the verdict among the various statutes to maximize the plaintiff’s

recovery. Id.

Even the Tenth Circuit’s approach to this issue has been internally

inconsistent. Prior to the decision in this case, the Tenth Circuit determined that

whether damages should be allocated among several claims is a question for the

jury. Fox v. Ford Motor Co., 575 F.2d 774, 787 (10th Cir. 1978). Despite this

authority, in this case, when the jury initially did not allocate damages per claim in

this case, the trial judge told them to “go back and allocate.” App. 247. This

allocation ultimately resulted in the verdict being reduced from $2.77 million to

$334,000, which conflicts with the authority of other circuits by taking the decision

regarding whether to allocate from the jury, and failing to apportion the damages to

maximize the plaintiff’s recovery.

The lack of consistency among circuits is evident by the fact that even when

the other circuits agreed with allocating the damages to claims without damages

caps in order to maximize the plaintiff’s recovery, they effected the desired outcome

in varying ways: creating a verdict form that asked the jury to assign damages per

claim; allowing the plaintiff to choose which statute to receive damages under

15

following the verdict; or allowing the district court to apply the damages to multiple

claims, or only to one claim.

This case is a perfect vehicle for this Court to weigh in on whether and how to

apportion damages per claim because it involves several claims where not only are

the elements of proof similar for some of the claims, there were no differences in

damages attributable to the various claims presented to the jury. This Court has

not yet provided guidance on either situation, and the differing approaches adopted

by the circuit courts suggest guidance is necessary to create uniformity among the

lower courts.

This Court’s guidance is also necessary because of the impact this case is

likely to have on Title VII cases. Lawyers representing plaintiffs in employment

cases in this circuit are already considering whether to withdraw Title VII claims in

cases arising under several statutes, either on the eve of trial or in the midst of trial

if the court approves an apportionment verdict form. Defense counsel, well aware

that apportionment saved the defendant $2.4 million in this case, will assuredly

press for apportionment verdict forms, and seek a “Jensen charge” advising juries

that the court “needs” them to apportion. If one side asks for a jury instruction

spelling out a standard as to when apportionment is warranted, the other side may

oppose that on the ground that “as best you can” was deemed sufficient in this case.

The issues raised by this case are enormously significant to Title VII

litigants, and sure to resurface in other cases. As the law stands in the Tenth

Circuit, it would likely be legal malpractice for plaintiff’s counsel not to drop a Title

16

VII claim prior to verdict if a plaintiff has other overlapping claims. The resulting

damage to the usefulness of one of this country’s most important civil rights laws

cannot be allowed to come to pass.

II.

This Court Should Determine Whether Pension Benefits Lost

Because a Plaintiff Could Not Resume His Career Due to the

Defendant’s Retaliation are Subject to Title VII’s Damages Cap

This Court determined 20 years ago that “front pay” awarded to a plaintiff in

a Title VII case is not subject to the statute’s damages cap. Pollard v. E.I. du Pont

de Nemours & Co., 532 U.S. 843, 852-53 (2001). This Court should now decide

whether pension benefits, lost because a plaintiff could not resume his career due to

a defendant’s conduct, are “front pay” or “lost future earnings” which are subject to

the caps.

The damages caps for Title VII were added as part of the Civil Rights Act of

1991, and only apply to remedies that were not available under the earlier version

of the statute, section 706(g) of the Civil Rights Act of 1964. Pollard, 532 U.S. at

852-53. Under the 1964 Act, victims of discrimination could recover “make whole”

remedies, which included “injunctions, reinstatement, backpay, lost benefits, and

attorney’s fees . . . .” Id. at 847-48, 850. The remedies that were added in the 1991

Act were “compensatory and punitive damages.” Id. at 851, citing 42 U.S.C. §

1981a(a)(1). This Court held that all remedies that were available under the

original version of the statute are not subject to the caps. Id. at 854. The Court

specifically held that front pay was a remedy available under the original Title VII,

and therefore not subject to the damages caps. Id. at 848.

17

Confusion has nonetheless arisen as to the characterization of certain types

of relief because of the language in the 1991 amendment to Title VII. The

amendments included a damages cap on “compensatory damages awarded under

this section for future pecuniary losses . . . .” 42 U.S.C. 1981a(b)(3) (emphasis

added). The Pollard decision provided an explanation for why “front pay” is not

“future pecuniary losses.” Pollard, 532 U.S. at 852. But courts have since come to

conflicting decisions about whether damages should be categorized as front pay or

future pecuniary losses, which has important ramifications to the size of the

plaintiff’s ultimate recovery.

This case exemplifies the debate. At trial, Jensen testified about being

unable to get another job as a police officer after being arrested on several felony

charges. He had earned 12.5 years of service towards a 20-year retirement plan, and

if he had been able to resume his law enforcement career with a different

department, he would have begun earning a pension as soon as he reached that 20year mark. Theoretically, without his arrest, he might have reached that mark prior

to trial or within a few months of trial, when he was in his early 40s. Instead, he

will not start earning a pension until he turns 60. A forensic accountant provided

the only testimony as to the value of Jensen’s lost pension benefits. App. 109-140.

The Tenth Circuit determined that Jensen’s lost pension benefits were more

akin to an “injury to character and reputation” than front pay, and determined they

were subject to Title VII’s damages cap. App. 17-18. This decision suggests that in

determining whether damages are front pay or future pecuniary losses, it matters

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why the pension benefits were awarded. This case is cert-worthy because there is a

split among the circuits as to whether economic losses caused by damage to one’s

reputation are back pay, front pay, or “future pecuniary losses.”

The Tenth Circuit’s decision as to the characterization of Jensen’s pension

benefits turned on the fact that Jensen was awarded the benefits because he could

not “go back to being a police officer following his arrest.” App. 17. As such, the

court determined that Jensen’s claim for those benefits was “effectively” based on

his position “that West Jordan ‘narrowed the range of economic opportunities

available to him . . . [and] caused a diminution in his ability to earn a living,’” such

that Jensen’s claim was for “a lost future earnings award” rather than front pay.

App. 17-18. The court determined that the district court correctly reasoned that

such “lost future earnings are analogous to ‘injury to professional standing’ and

‘injury to character reputation’,” which were “other nonpecuniary losses” that were

subject to Title VII’s damages cap. Id.

This decision relied on the Seventh Circuit’s pre-Pollard decision in Williams

v. Pharmacia, Inc., 137 F.3d 944 (7th Cir. 1998). Prior to its decision in Williams,

the Seventh Circuit had not even determined that front pay was a remedy available

under Title VII, but in Williams, the court affirmed the trial “court’s decision to

award both front pay and Williams’s lost future earnings as damages.” Id. at 946,

951-53. The court explained the distinction between the two types of awards: “[t]he

front pay award approximated the benefit Williams would have received had she

been able to return to her old job;” but the “lost future earnings award, in contrast,

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compensates Williams for a lifetime of diminished earnings resulting from the

reputational harms she suffered as a result of Pharmacia’s discrimination.” Id. at

953. The court explained that “front pay awards are limited in duration” because

they end when the plaintiff obtains comparable employment, but “lost future

earnings” are not similarly limited because “[t]he reputational or other injury that

causes the diminution in expected earnings can stay with the employee

indefinitely.” Id. at 954. The Tenth Circuit in Jensen determined that Jensen’s lost

pension benefits were the capped because they were like the “reputational” injury

described in Williams. App. 17-18.

It has never been disputed that back pay awarded under Title VII is not

subject to the damages caps. See, e.g., Pollard, 532 U.S. at 847-48. Since this Court

determined in Pollard that front pay is not subject to Title VII’s damages caps, at

least two circuits have determined that lost income attributable to a defendant’s

damage to a plaintiff’s reputation with a third party are properly considered to be

back pay, not “reputational injury.” In Szeinbach v. Ohio State University, 820 F.3d

814 (6th Cir. 2016), the Sixth Circuit considered a damages claim by a plaintiff who

alleged the defendant had harmed her reputation, limiting her ability to get a

higher-paying job at a different institution. Unlike the Tenth Circuit in this case,

the Sixth Circuit considered the value of the damage to the plaintiff’s ability to get

another job to be back pay. Specifically, the court explained that if the defendant

had caused the plaintiff not to get a job with a different employer, “then the

appropriate measure of back pay would be the difference between (1) what

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Szeinbach actually earned at OSU, and (2) what Szeinbach would have earned

while working for the other university.” Id. at 823. Szeinbach reasoned, “This

interpretation of the backpay remedy is consistent with the remedy’s purpose,”

which was “to place the plaintiff in the position that she would have occupied in the

absence of any illegal conduct by her employer.” Id. at 823-24.

Szeinbach relied in its analysis on Nassar v. Univ. of Texas Sw. Med. Ctr.,

674 F.3d 448 (5th Cir. 2012), vacated on other grounds, 570 U.S. 338 (2013).

Szeinbach noted that the plaintiff in Nassar had been offered a job with a different

employer, “Parkland,” but an employee of the defendant university had contacted

Parkland and stopped it from hiring Nassar; Nassar later went to work for a third

employer. Szeinbach, 820 F.3d at 823, citing Nassar, 674 F.3d at 451. The Fifth

Circuit decided “that the amount of Nassar’s back pay could appropriately be based

on a comparison between what he was earning with the third employer and what he

would have earned had UTSW not improperly interfered with his job offer from

Parkland.” Nassar, 674 F.3d at 451.

Szeinbach and Nassar are consistent with Title VII case law prior to the 1991

amendments, in that economic redress was clearly available prior to 1991 if a

worker’s former employer retaliated against that worker in a manner that caused

the rejection or dismissal of that worker by another employer. In Rutherford v.

American Bank of Commerce, 565 F.2d 1162 (10th Cir. 1977), when the plaintiff

filed an EEOC charge against her former employer, the former employer retaliated

by informing a prospective employer about that EEOC charge. The Tenth Circuit

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affirmed the district court’s conclusion that this retaliation effectively blacklisted

the plaintiff, preventing her from getting hired by that prospective employer, and

that the plaintiff was entitled to damages under Title VII for this retaliation. Id. at

1164-66; see Sherman v. Burke Contracting, Inc., 861 F.2d 1527, 1535-36 (11th Cir.

1990) (awarding $10,000 against former employer that induced plaintiff’s current

employer to dismiss him); Czarnowski v. Desoto, Inc., 518 F. Supp. 1252, 1260 (E.D.

Ill. 1981) (awarding $16,000 against former employer for wages lost when plaintiff

did not obtain a job because former employer disclosed to prospective employer that

plaintiff had filed an EEOC charge).

The Tenth Circuit’s decision in this case is inconsistent with all of these

cases, pre- and post-1991 amendments, including its own decision in Rutherford.

Jensen argued that his total lost pension benefits should be based on when he

would have become pension-eligible in the absence of the retaliation. If (in the

absence of retaliation) Jensen had obtained a position in law enforcement in 2010,

he would have accumulated a total of 20 years of service by the end of 2017, and

thus been entitled to begin drawing pension benefits, without regard to his age.

The effect of the retaliation—and of Jensen’s resulting inability to obtain a law

enforcement job in or after 2010—was to postpone pension-eligibility until Jensen

reaches 60. The Szeinbach court, relying on Nassar, would have determined that

“the district court should have considered the possibility that employment

opportunities with third-party employers might have affected the proper calculation

of back pay.” Szeinbach, 820 F.3d at 824.

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This Court should grant certiorari to settle this split in the circuits as to

whether economic losses recovered under Title VII that are caused by harm to a

plaintiff’s reputation are to be considered front pay or back pay that is not subject to

damages caps, or “future pecuniary losses” that are subject to the caps. Without this

Court’s review, plaintiffs in the Tenth Circuit will find their economic damages

claims capped so long as the defendant can attribute the damages to the plaintiff’s

diminished reputation, even when caused by the defendant.

CONCLUSION

For the reasons above, this Court should grant the petition for writ of

certiorari to review the judgment of the Tenth Circuit Court of Appeals.

Respectfully submitted,

April L. Hollingsworth

Counsel of Record

HOLLINGSWORTH LAW OFFICE, LLC

1881 South 1100 East

Salt Lake City, UT 84105

(801) 415-9909

april@aprilhollingsworthlaw.com

Counsel for Petitioner Aaron Jensen

February 26, 2021