Fresquez v. BNSF Railway Co.

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge William J. Martínez

Civil Action No. 17-cv-0844-WJM-SKC

BRANDON FRESQUEZ,

Plaintiff,

v.

BNSF RAILWAY CO.,

Defendant.

ORDER GRANTING IN PART REMAINDER OF PLAINTIFF’S MOTION FOR BACK PAY AND DIRECTING ENTRY OFJUDGMENT

Plaintiff Brandon Fresquez sued Defendant BNSF Railway Co. (“BNSF”), his former employer, for retaliating against him for engaging in protected activity, in violation of the Federal Railroad Safety Act, 49 U.S.C. § 20109 (“FRSA”). The case proceeded to a 6-day jury trial before Senior U.S. District Court Judge Wiley Y. Daniel. On February 19, 2019, the jury returned a verdict in favor of Fresquez, finding that BNSF retaliated against Fresquez in violation of the FRSA, and awarded Fresquez $800,000 in compensatory damages and $250,000 in punitive damages. (ECF No. 152.) Judge Daniel reserved questions of back pay and front pay for judicial determination. (ECF No. 159 at 131–32.) The parties briefed the issues of back pay and front pay, and Judge Daniel set a hearing on the matter. (ECF Nos. 155 & 166.) Sadly, prior to the hearing, Judge Daniel passed away. On May 16, 2019, the matter was drawn to the undersigned, and the Court held a hearing on the issues on September 6, 2019. (ECF Nos. 171 & 192.) After the hearing, the Court entered an Order resolving certain disputes between the parties regarding calculation of back pay and front pay, taking under advisement the precise dollar amount of back pay and front pay to be awarded, and directing the parties

to submit simultaneous, supplemental briefs on the issue of the dollar amount to be awarded consistent with the Court’s rulings in the Order. (ECF No. 193 at 34.) Among the disputes resolved, the Court found that Fresquez is entitled to ten years of front pay from the date of the jury verdict, or until February 19, 2029. (Id. at 17.) Implicit in this finding was that back pay should run from the date Fresquez was fired to the date of the jury verdict. The Court also instructed the parties to not reduce Fresquez’s back pay by the amount Fresquez received in unemployment benefits (id. at 25); to omit any health insurance payments from the back pay calculation for failure to prove the amount spent due to lack of health insurance (id. at 29); to calculate Fresquez’s estimated but-for wages1 using the method of expert witness Jeffrey Opp

(id. at 26); to calculate the relative loss in health benefits using a multiplier (id. at 30); and include prejudgment interest using a fixed rate of 5.54%, compounded monthly and according to a formula approved by the Tenth Circuit (id. at 33). The parties were also instructed to calculate prejudgment interest as of December 17, 18, and 19. (Id. at 34.)

1 The Court will refer to the amounts Fresquez would have earned absent the unlawful termination as “but-for” wages, and the amounts Fresquez instead earned between the trial and today’s date, or is projected to earn until 2029, as his “non-railroad” wages. I. SUPPLEMENTAL BRIEFING ON AMOUNT DUE TO FRESQUEZ BNSF timely filed its supplemental brief on November 25, 2019. (ECF No. 194.) Due to a scheduling error at Fresquez’s counsel’s firm, Fresquez filed his supplemental brief the following day, along with an unopposed motion for leave to belatedly file the supplement as well as another supplement brief with interest calculations the following

week. (ECF Nos. 196 & 198.) The Court granted the Motion for Leave. (ECF No. 197.) Because both sets of calculations deviated from the Court’s Order directing supplemental briefing, the Court requested the native file used by each expert to calculate back pay, front pay, and prejudgment interest. A. Fresquez Calculations Contrary to the Court’s Order that front pay be calculated for ten years from the jury verdict on February 19, 2019, Fresquez calculated front pay for ten year after the date of September 6, 2019 hearing. (Compare ECF No. 193 at 17 (“Fresquez is entitled to ten years of front pay from the date of the jury verdict”) with ECF No. 198-2 at 2 (front

pay calculated from September 7, 2019 to September 7, 2029) and id. at 3 (“Date of Report/Trial: 09/06/19”).) It also appears that Fresquez calculated back pay from the date of his termination until the date of the hearing. (ECF No. 198-2 at 2; see id. at 3 (“Date of Report/Trial: 09/06/19”).) Plaintiff’s expert calculations for back pay and front pay are therefore inconsistent with the Court’s Order, and of little use to the Court. This error influenced the Court’s decision to request the native files with calculations from the experts. The Court also ordered the parties to “calculate prejudgment interest using a fixed interest rate of 5.54% with such interest compounded monthly” and to “use the formula approved by the Tenth Circuit in Reed v. Mineta, 438 F.3d 1063, 1067 n.4 (10th Cir. 2006).” (ECF No. 193 at 33.) The formula used in Reed takes the future value of each payment owed to a plaintiff from the date the each payment was due, subtracts the original value of each payment, thus leaving only the interest component, and then adds the interest components of each payment. 438 F.3d at 1067 n.4. In other words,

it calculates the amount of interest due on the amount owed over time, and takes into account that, absent the discriminatory action, the plaintiff would have earned money over time. Contrary to the Court’s Order, Fresquez calculated prejudgment interest on the entire amount of the award from May 27, 2016. (ECF No. 198-2 at 15.) These two errors make it difficult for the Court to rely on Fresquez’s model for calculating front pay and back pay. Even if the Court were to adjust the date ranges for back pay and front pay in Fresquez’s model, the Court would still need to separately calculate prejudgment interest in accordance with its ruling, rather than rely on Fresquez’s model to calculate prejudgment interest.

B. BNSF Calculations Although BNSF did not present an expert at the hearing on back pay and front pay, after the Court issued its Order, BNSF retained economist Mark Erwin to calculate the amount of back pay, front pay, benefits, and interest to be awarded. (ECF No. 194 at 2.) 1. Back Pay Erwin calculated back pay from termination (May 27, 2016) to the jury verdict (February 19, 2019) omitting any health benefits or unemployment benefits from the calculations. (ECF No. 194-1 at 4.) Erwin also deducted “unreimbursed railroad employee expenses” (essentially, union dues) from Fresquez’s but-for wages. He also deducted income taxes on Fresquez’s but-for wages and non-railroad wages. However, once Erwin arrived at a final recommended back pay and front pay award, he provided an estimate of taxes on that lump sum. 2. Front Pay

Consistent with the Court’s Order, Erwin calculated lost front pay from February 19, 2019 through February 18, 2029. (ECF No. 194-1.) To calculate estimated future wages, Erwin began with Opp’s 2019 but-for wage estimate and Fresquez’s actual 2019 wages for his non-railroad wages. (Id. at 6.) Erwin then projected the but-for wages forward from 2019 using forecasted changes in the Employment Cost Index. (Id.) For projected non-railroad wages, Erwin used the forecasted changes in the Employment Cost Index and gradually adjusted Fresquez’s earnings from the entry-level wage to median-occupational earnings by 2029. Erwin calculated health benefits in the following manner: He found that in 2019,

Fresquez’s health benefits at BNSF would have been approximately $9,459, or 8.98% of Fresquez’s but-for wages. He therefore added 8.98% to Fresquez’s but-for wages each year. For non-railroad healthcare benefits, Erwin assumed, based on a Kaiser Family Foundation report, that employers typically pay $5,946 in annual premiums for employee-only coverage. This amount was equal to 11.66% of Fresquez’s 2019 post- railroad wages. Thus, Erwin added 11.66% to Fresquez’s post-railroad wages each year. Erwin’s calculations include three data points that BNSF did not raise in the briefing on back pay and front pay or at the hearing: (1) unreimbursed railroad employee expenses; (2) income taxes; and (3) life/employment expectancy. As with the back pay calculations, Erwin deducted unreimbursed railroad employee expenses from Fresquez’s projected but-for wages, and deducted income taxes from Fresquez’s but- for wages and non-railroad wages. Also as noted above, Erwin estimated the taxes due on the lump sum, and provided an estimate to the Court of the tax liability that would

accompany the award. Finally, Erwin adjusted but-for earnings and post-railroad earnings based on “Plaintiff’s expected likelihood of remaining in the labor force from the date of judgment through the end of his lost front pay period in 2029.” (ECF No. 194-1 at 10.) He therefore concluded that, on average during the ten-year front pay period Fresquez had 9.28 expected active years in the labor force. (Id.) In the prior Order, the Court explicitly held that on the record before it, Fresquez would likely have remained at BNSF for an additional ten years. BNSF’s assumption of 9.28 years of labor force participation is contrary to the Court’s Order that Fresquez

should receive ten years of front pay from the date of the trial. The ten-year front pay period is not subject to further diminution based on work-life expectancy by an expert. C. Court’s Approach and Calculations At this point, the Court has two options: order supplemental briefing on the supplemental briefing (forcing the parties to incur additional expert expenses and billable hours), or take the parties’ experts’ reports and underlying data under advisement and perform the calculations itself. The Court is frustrated that neither party adhered to the Court’s rulings in the prior Order, further complicating an already complicated matter. Specifically, Fresquez failed to make basic changes to the dates in the model or to appropriately calculate interest. BNSF added certain factors not previously raised to the Court in the briefing on back pay and front pay or at the hearing, and seemingly did so to reduce its liability to Fresquez. Out of this frustration with the parties inability to follow the Court’s Order, the Court requested the expert models from the parties to make necessary adjustments.

The Court is concerned that ordering further updates to the experts’ models would only raise additional issues, rather than resolve this litigation. At some point, litigation must end. The Court exercises its discretion to modify the numbers presented by the parties consistent with its prior rulings, recalculate back pay and front pay using BNSF’s model, and, at long last, enter final judgment in favor of Fresquez. The Court will use BNSF’s model. As discussed above, even were the Court to adjust the dates in Fresquez’s model, there is still the significant issue of calculating prejudgment interest, and Fresquez’s model is inadequate for that task. The Court understands that each model makes numerous assumptions and adjustments, far more

than were explained in the parties’ briefs, that ultimately impact the final amount owed. However, the Court must proceed in some way, and it exercises its discretion to do so using the BNSF model. The Court makes the following rulings regarding elements of BNSF’s model, and adjusts the model accordingly. The Court makes these adjustments in its discretion and to the best of its ability to arrive at an amount that fairly represents the amount of back pay, front pay, and prejudgment interest to which Fresquez is entitled. 1. But-For and Post-Railroad Gross Annual Front Pay BNSF objected to Opp’s calculation of Fresquez’s estimated gross annual but-for railroad earnings. Opp used a method that took into account how much employees are paid under union contracts, the amount of work available, and how much Fresquez elected to work on a historical basis to arrive at wage estimates for 2015 to 2019. The

Court found that “Opp’s method to calculate Fresquez’s front pay ha[d] a reasonable factual basis.” (ECF No. 193 at 26.) Both parties appropriately used these numbers for Fresquez’s 2015 to 2019 gross annual but-for earnings. (ECF No. 194-1 at 3; ECF No. 198-2 at 11.) The Court’s prior order did not directly address how but-for and post-railroad gross annual front pay should be estimated from 2019 to 2029. Opp simply assumed a 4% growth rate in annual gross wages to account for inflation and any raises Fresquez may have received. He applied this growth rate to Fresquez’s but-for wages and post- railroad wages.

Erwin assumed that Fresquez’s but-for wages would increase by the amount of annual inflation. For Frequez’s post-railroad wages, however, Erwin factored in annual inflation as well as an assumption that Fresquez’s wages would rise with his increasing experience in the building inspector industry. While the Court did not explicitly approve this formula for projecting future non-railroad wages, the Court notes that the resulting annual non-railroad wages are less than those projected by Opp, thereby ultimately benefitting Fresquez. (Compare ECF No. 198-2 at 12 (“alternate wages”) with ECF No. 194-1 at 5 (“Post-RR Earnings Charles Total”).) With respect to but-for gross wages, the Court finds that Erwin’s approach underestimates Fresquez’s potential for raises, and Opp’s approach overestimates the same. In order to avoid additional delay, the Court will exercise its discretion and use the average of these two but-for gross wage estimates for its calculations. See Part I.C.5, Table 1, below. For the post-railroad gross wage estimates, the Court will use

Erwin’s numbers that, as discussed above, are lower than Opp’s projections and thereby ultimately benefit Fresquez. 2. Unreimbursable Railroad Employee Expenses The Court will not allow BNSF to subtract unreimbursable railroad employee expenses from but-for wages. BNSF did not challenge Opp’s failure to deduct these expenses from Fresquez’s but-for wages in its briefing or at the hearing. The Court finds that such an approach is an unnecessary nickel-and-diming of Fresquez’s damages at the eleventh hour. BNSF had the opportunity to object to Opp’s report and the calculations involved, but elected not to do so. The Court will therefore omit this

reduction in Fresquez’s but-for earnings calculations. See Part I.C.5, Table 2B (“employee expenses” column). 3. Labor Force Participation As discussed above, Erwin adjusted both but-for earnings and post-railroad earnings based on his estimate that Fresquez would remain in the labor force for 9.28 years (on average over a ten-year period). Also as discussed above, the Court’s prior ruling that Plaintiff would remain at BNSF for ten years was intended to account for future uncertainty about Fresquez’s employment at BNSF. The Court therefore modifies Fresquez’s probability of remaining in the workforce to one hundred percent until 2029. It does so for both Fresquez’s but-for and post-railroad employment. To achieve that result, the Court edited BNSF’s underlying spreadsheet that estimated “labor force probability”—thus updating the linked cells in the but-for earnings and post-railroad earnings sheets—in the event that other figures in BNSF’s model were

also keyed off of the data. Specifically, the Court modified the LFP sheet, cells H9:H19 to be 100%, thereby changing the “Probability of LFP” on the but-for table and post- railroad table to “1.00.” See Part I.C.5, Tables 2B and 3B, below. 4. Income Taxes Erwin deducted income taxes from Fresquez’s earnings estimates, and added an approximation of taxes on the lump sum award. Opp did not deduct income taxes from estimated earnings. The Court notes that, unmodified, BNSF’s after-tax model plus lump sum income tax is nearly equivalent to the before-tax model with no lump sum income tax. (ECF No. 194-1 at 34 (total loss award plus income taxes on award is

$583,598); see id. at 70 (“before-tax model: $582,967).) According to an Internal Revenue Service (“IRS”) Memorandum submitted by BNSF, the IRS generally considers back pay and front pay taxable income. (ECF No. 194-1 at 45.) The Court finds it reasonable to consider the taxes that Fresquez would have paid, either by not deducting income taxes from estimated earnings or by deducting income tax from expected but-for and post-railroad earnings and adding a lump sum amount for taxes to the entire award. The Court notes that if it were to rely on the BNSF model with post-tax earnings estimates and not add a lump sum for taxes, Fresquez would, in essence, be taxed twice. The Court adopts BNSF’s approach of deducting income taxes on Fresquez’s annual earnings, and adding a lump sum to account for taxes on the award. This approach is reasonable, and has the added benefit of minimizing the number of modifications to BNSF’s model. 5. Tables

To calculate the award, the Court made the modifications to the BNSF model discussed above. The cells highlighted in yellow in Tables 2A, 2B, 3A, and 3B show where the Court modified the data. After making these alterations, the Court ran the “Backsolver” macro imbedded on the “Inputs” page to, presumably, update the entire model consistent with the Court’s alterations. (See ECF No. 194-1 at 70.) The Court also made sure that taxes were calculated on the new amount of the award. The final result is that Fresquez is entitled to $696,173, which includes back pay, front pay, pre- judgment interest, and estimated income taxes. The tables below show BNSF’s calculations (Tables 2A, 3A, 4A & 5A), the Court’s modifications to BNSF’s model and

resulting impacts (Tables 1, 2B, 3B, 4B & 5B), and the amount due to Fresquez. Table 1: Average of Estimated But-For Gross Annual Wages Fresquez Estimate BNSF Estimate Year Average (ECF No. 198-1 at 11) (ECF No. 194-1 at 4) 2019 $108,122.01 $108,122.01 $108,122.01 2020 $112,446.89 $109,294.41 $110,870.65 2021 $116,944.76 $110,338.63 $113,641.69 2022 $121,622.55 $111,392.82 $116,507.69 2023 $126,487.46 $112,548.17 $119,517.82 2024 $131,546.95 $113,605.53 $122,576.24 2025 $136,808.83 $114,650.85 $125,729.84 2026 $142,281.19 $115,705.79 $128,993.49 2027 $147,972.43 $116,657.29 $132,314.86 2028 $153,891.33 $117,616.61 $135,753.97 2029 $160,046.98 $118,595.69 $139,321.33 Table 2A: But-For Earnings Unmodified Fresquez v. BNSF Brandon K. Fresquez' But-for Railroad Earnings & Benefits - If Judgement is on December 17, 2019 and Lost Post-retirement Benefits Considered Date of Termination: 05/27/16 Date of Verdict: 02/19/19 In 2019: Date of Judgment: 12/17/19 1 0 $9,459 Expected 0 Expected 8.98% But-for But-for Gross Gross Cost 6.20% 4.90% 1.45% But-for RR Health times Earnings Earnings Year Real RR Pay RR Pay Sharing Creditable Employee Tier I Tier II MC Earnings Insurance Probability & Benefits Income & Benefits Year Age Frac ECI (Annual) (Period) (Period) Earnings Expenses Taxes Taxes Taxes (before-tax) (single) of LFP (before-tax) Taxes (after-tax) Termination 2016 31 0.60 $107,306 $64,207 ($1,571) $62,636 ($705) ($3,883) ($2,704) ($908) $54,435 1.00 $54,435 ($18,879) $35,556 2017 32 1.00 $110,169 $110,169 ($2,747) $107,422 ($1,512) ($6,660) ($4,631) ($1,558) $93,062 1.00 $93,062 ($24,640) $68,422 2018 33 1.00 $106,524 $106,524 ($2,747) $103,777 ($1,526) ($6,434) ($4,675) ($1,505) $89,638 1.00 $89,638 ($20,565) $69,073 2019 34 0.13 $108,122 $14,301 ($229) $14,072 ($205) ($872) ($690) ($204) $12,100 1.00 $12,100 ($2,800) $9,300 Verdict 2019 34 0.83 137.50 $108,122 $89,613 ($2,289) $87,324 ($1,265) ($5,414) ($4,147) ($1,266) $75,232 $7,839 1.00 $83,071 ($17,258) $65,813 Judgment 2019 34 0.04 137.50 $108,122 $4,208 ($229) $3,980 ($59) ($247) $0 ($58) $3,616 $357 0.98 $3,913 ($775) $3,138 2020 35 1.00 138.99 $109,294 $109,294 ($2,776) $106,518 ($1,545) ($6,604) ($4,874) ($1,545) $91,950 $9,562 0.96 $97,189 ($19,938) $77,250 2021 36 1.00 140.32 $110,339 $110,339 ($2,803) $107,536 ($1,560) ($6,667) ($4,922) ($1,559) $92,827 $9,653 0.94 $96,340 ($19,709) $76,631 2022 37 1.00 141.66 $111,393 $111,393 ($2,830) $108,563 ($1,575) ($6,731) ($5,320) ($1,574) $93,363 $9,745 0.93 $96,067 ($19,641) $76,427 2023 38 1.00 143.13 $112,548 $112,548 ($2,859) $109,689 ($1,591) ($6,801) ($5,375) ($1,590) $94,332 $9,846 0.92 $96,266 ($19,700) $76,565 2024 39 1.00 144.47 $113,606 $113,606 ($2,886) $110,720 ($1,606) ($6,865) ($5,425) ($1,605) $95,218 $9,939 0.92 $96,594 ($19,800) $76,795 2025 40 1.00 145.80 $114,651 $114,651 ($2,913) $111,738 ($1,621) ($6,928) ($5,475) ($1,620) $96,094 $10,030 0.91 $96,955 ($19,908) $77,047 2026 41 1.00 147.14 $115,706 $115,706 ($2,939) $112,766 ($1,636) ($6,992) ($5,526) ($1,635) $96,978 $10,123 0.91 $97,317 ($22,695) $74,621 2027 42 1.00 148.35 $116,657 $116,657 ($2,964) $113,694 ($1,649) ($7,049) ($5,571) ($1,649) $97,776 $10,206 0.90 $97,576 ($22,776) $74,800 2028 43 1.00 149.57 $117,617 $117,617 ($2,988) $114,629 ($1,663) ($7,107) ($5,617) ($1,662) $98,580 $10,290 0.90 $97,704 ($22,816) $74,888 2029 44 0.13 150.82 $118,596 $15,921 ($404) $15,517 ($225) ($962) ($760) ($225) $13,344 $1,393 0.89 $13,123 ($3,065) $10,058 Post-verdict: 10.00 years, per order Expected Years Active in Labor Force, Post-verdict: 9.28

Table 2B: But-For Earnings Modified Fresquez v. BNSF Brandon K. Fresquez' But-for Railroad Earnings & Benefits - If Judgement is on December 17, 2019 and Lost Post-retirement Benefits Considered Date of Termination: 05/27/16 Date of Verdict: 02/19/19 In 2019: Date of Judgment: 12/17/19 1 0 $9,459 Expected 0 Expected 8.98% But-for But-for Gross Gross Cost 6.20% 4.90% 1.45% But-for RR Health times Earnings Earnings Year Real RR Pay RR Pay Sharing Creditable Employee Tier I Tier II MC Earnings Insurance Probability & Benefits Income & Benefits Year Age Frac ECI (Annual) (Period) (Period) Earnings Expenses Taxes Taxes Taxes (before-tax) (single) of LFP (before-tax) Taxes (after-tax) Termination 2016 31 0.60 $107,306 $64,207 ($1,571) $62,636 ($3,883) ($2,704) ($908) $55,140 1.00 $55,140 ($18,879) $36,262 2017 32 1.00 $110,169 $110,169 ($2,747) $107,422 ($6,660) ($4,631) ($1,558) $94,574 1.00 $94,574 ($24,640) $69,934 2018 33 1.00 $106,524 $106,524 ($2,747) $103,777 ($6,434) ($4,675) ($1,505) $91,164 1.00 $91,164 ($20,565) $70,599 2019 34 0.13 $108,122 $14,301 ($229) $14,072 ($872) ($690) ($204) $12,306 1.00 $12,306 ($2,801) $9,505 Verdict 2019 34 0.83 137.50 $108,122 $89,613 ($2,289) $87,324 ($5,414) ($4,147) ($1,266) $76,497 $7,839 1.00 $84,336 ($17,262) $67,073 Judgment 2019 34 0.04 137.50 $108,122.01 $4,208 ($229) $3,980 ($247) $0 ($58) $3,675 $357 1.00 $4,032 ($787) $3,245 2020 35 1.00 138.99 $110,870.65 $110,871 ($2,776) $108,094 ($6,702) ($4,874) ($1,567) $94,951 $9,703 1.00 $104,655 ($21,629) $83,026 2021 36 1.00 140.32 $113,641.69 $113,642 ($2,803) $110,839 ($6,872) ($4,922) ($1,607) $97,438 $9,950 1.00 $107,387 ($22,415) $84,973 2022 37 1.00 141.66 $116,507.69 $116,508 ($2,830) $113,678 ($7,048) ($5,570) ($1,648) $99,411 $10,204 1.00 $109,616 ($23,228) $86,388 2023 38 1.00 143.13 $119,517.82 $119,518 ($2,859) $116,659 ($7,233) ($5,716) ($1,692) $102,018 $10,472 1.00 $112,490 ($24,081) $88,409 2024 39 1.00 144.47 $122,576.24 $122,576 ($2,886) $119,690 ($7,421) ($5,865) ($1,736) $104,669 $10,744 1.00 $115,413 ($24,949) $90,464 2025 40 1.00 145.80 $125,729.84 $125,730 ($2,913) $122,817 ($7,615) ($6,018) ($1,781) $107,404 $11,025 1.00 $118,429 ($25,844) $92,584 2026 41 1.00 147.14 $128,993.49 $128,993 ($2,939) $126,054 ($7,815) ($6,177) ($1,828) $110,234 $11,315 1.00 $121,550 ($29,993) $91,557 2027 42 1.00 148.35 $132,314.86 $132,315 ($2,964) $129,351 ($8,020) ($6,338) ($1,876) $113,118 $11,611 1.00 $124,729 ($31,069) $93,660 2028 43 1.00 149.57 $135,753.97 $135,754 ($2,988) $132,766 ($8,231) ($6,506) ($1,925) $116,104 $11,918 1.00 $128,022 ($32,183) $95,839 2029 44 0.13 150.82 $139,321.33 $18,703 ($404) $18,299 ($1,135) ($897) ($265) $16,002 $1,643 1.00 $17,645 ($4,476) $13,169 Post-verdict: 10.00 years, per order Expected Years Active in Labor Force, Post-verdict: 10.00 Table 3A: Post-Railroad Earnings Unmodified Fresquez v. BNSF Brandon K. Fresquez' Post-Railroad Earnings & Benefits - If Judgement is on December 17, 2019 and Lost Post-retirement Benefits Considered Date of Termination: 05/27/16 Date of Verdict: 02/19/19 In 2019: Date of Judgment: 12/17/19 1 1 0 $5,946 Expected Expected 11.66% 4.83% Post-RR Post-RR Post-RR Earnings 6.20% 1.45% Post-RR Health Retirement times Earnings Earnings Year Real Entry Town of Charles SS MC Earnings Insurance Benefits Probability & Benefits Income & Benefits Year Age Frac ECI to Med Castle Rock SAFEbuilt Abbott Total Taxes Taxes (before-tax) (single) (private ind.) of LFP (before-tax) Taxes (after-tax) Termination 2016 31 0.60 $16,701 $16,701 ($1,035) ($242) $15,423 1.00 $15,423 ($2,498) $12,925 2017 32 1.00 $1,920 $18,998 $20,918 ($1,297) ($303) $19,318 1.00 $19,318 ($1,598) $17,719 2018 33 1.00 $43,385 $5,923 $49,308 ($3,057) ($715) $45,535 1.00 $45,535 ($6,014) $39,522 2019 34 0.13 $6,847 $6,847 ($424) ($99) $6,323 1.00 $6,323 ($907) $5,416 Verdict 2019 34 0.83 137.50 137.50 $42,197 $42,197 ($2,616) ($612) $38,969 $4,920 $2,038 1.00 $45,927 ($5,587) $40,340 Judgment 2019 34 0.04 137.50 137.50 $1,956 $1,956 ($121) ($28) $1,807 $228 $94 0.98 $2,096 ($272) $1,824 2020 35 1.00 138.99 144.18 $53,479 $53,479 ($3,316) ($775) $49,388 $6,010 $2,583 0.96 $55,625 ($8,704) $46,921 2021 36 1.00 140.32 150.35 $55,768 $55,768 ($3,458) ($809) $51,501 $6,068 $2,694 0.94 $56,818 ($8,934) $47,884 2022 37 1.00 141.66 156.79 $58,154 $58,154 ($3,606) ($843) $53,705 $6,126 $2,809 0.93 $58,362 ($9,209) $49,153 2023 38 1.00 143.13 164.08 $60,857 $60,857 ($3,773) ($882) $56,201 $6,189 $2,939 0.92 $60,368 ($9,579) $50,789 2024 39 1.00 144.47 170.98 $63,417 $63,417 ($3,932) ($920) $58,566 $6,248 $3,063 0.92 $62,350 ($10,003) $52,347 2025 40 1.00 145.80 178.02 $66,030 $66,030 ($4,094) ($957) $60,979 $6,305 $3,189 0.91 $64,384 ($10,414) $53,970 2026 41 1.00 147.14 185.36 $68,750 $68,750 ($4,263) ($997) $63,491 $6,363 $3,321 0.91 $66,490 ($12,696) $53,793 2027 42 1.00 148.35 192.18 $71,280 $71,280 ($4,419) ($1,034) $65,827 $6,415 $3,443 0.90 $68,392 ($13,175) $55,217 2028 43 1.00 149.57 199.25 $73,902 $73,902 ($4,582) ($1,072) $68,249 $6,468 $3,570 0.90 $70,257 ($13,651) $56,606 2029 44 0.13 150.82 206.67 $10,291 $10,291 ($638) ($149) $9,503 $876 $497 0.89 $9,685 ($2,108) $7,577 Post-verdict: 10.00 years, per order Expected Years Active in Labor Force, Post-verdict: 9.28

Table 3B: Post-Railroad Earnings Modified Fresquez v. BNSF Brandon K. Fresquez' Post-Railroad Earnings & Benefits - If Judgement is on December 17, 2019 and Lost Post-retirement Benefits Considered Date of Termination: 05/27/16 Date of Verdict: 02/19/19 In 2019: Date of Judgment: 12/17/19 1 1 0 $5,946 Expected Expected 11.66% 4.83% Post-RR Post-RR Post-RR Earnings 6.20% 1.45% Post-RR Health Retirement times Earnings Earnings Year Real Entry Town of Charles SS MC Earnings Insurance Benefits Probability & Benefits Income & Benefits Year Age Frac ECI to Med Castle Rock SAFEbuilt Abbott Total Taxes Taxes (before-tax) (single) (private ind.) of LFP (before-tax) Taxes (after-tax) Termination 2016 31 0.60 $16,701 $16,701 ($1,035) ($242) $15,423 1.00 $15,423 ($2,498) $12,925 2017 32 1.00 $1,920 $18,998 $20,918 ($1,297) ($303) $19,318 1.00 $19,318 ($1,598) $17,719 2018 33 1.00 $43,385 $5,923 $49,308 ($3,057) ($715) $45,535 1.00 $45,535 ($6,014) $39,522 2019 34 0.13 $6,847 $6,847 ($424) ($99) $6,323 1.00 $6,323 ($907) $5,416 Verdict 2019 34 0.83 137.50 137.50 $42,197 $42,197 ($2,616) ($612) $38,969 $4,920 $2,038 1.00 $45,927 ($5,591) $40,336 Judgment 2019 34 0.04 137.50 137.50 $1,956 $1,956 ($121) ($28) $1,807 $228 $94 1.00 $2,129 ($299) $1,830 2020 35 1.00 138.99 144.18 $53,479 $53,479 ($3,316) ($775) $49,388 $6,010 $2,583 1.00 $57,982 ($9,903) $48,079 2021 36 1.00 140.32 150.35 $55,768 $55,768 ($3,458) ($809) $51,501 $6,068 $2,694 1.00 $60,263 ($10,410) $49,853 2022 37 1.00 141.66 156.79 $58,154 $58,154 ($3,606) ($843) $53,705 $6,126 $2,809 1.00 $62,640 ($10,865) $51,775 2023 38 1.00 143.13 164.08 $60,857 $60,857 ($3,773) ($882) $56,201 $6,189 $2,939 1.00 $65,330 ($11,354) $53,976 2024 39 1.00 144.47 170.98 $63,417 $63,417 ($3,932) ($920) $58,566 $6,248 $3,063 1.00 $67,876 ($11,877) $55,999 2025 40 1.00 145.80 178.02 $66,030 $66,030 ($4,094) ($957) $60,979 $6,305 $3,189 1.00 $70,473 ($12,367) $58,106 2026 41 1.00 147.14 185.36 $68,750 $68,750 ($4,263) ($997) $63,491 $6,363 $3,321 1.00 $73,175 ($14,982) $58,193 2027 42 1.00 148.35 192.18 $71,280 $71,280 ($4,419) ($1,034) $65,827 $6,415 $3,443 1.00 $75,685 ($15,560) $60,125 2028 43 1.00 149.57 199.25 $73,902 $73,902 ($4,582) ($1,072) $68,249 $6,468 $3,570 1.00 $78,286 ($16,164) $62,122 2029 44 0.13 150.82 206.67 $10,291 $10,291 ($638) ($149) $9,503 $876 $497 1.00 $10,876 ($2,596) $8,280 Post-verdict: 10.00 years, per order Expected Years Active in Labor Force, Post-verdict: 10.00 Table 4A: Pre-Judgment Interest Unmodified Fresquez v. BNSF Brandon K. Fresquez' Pre-judgment Interest Date of Termination: 05/27/16 Date of Verdict: 02/19/19 Date of Judgement: 12/17/19 Pre- Pre- judgment Pre- 5.54% Ordinary Ending judgement Beginning Beginning Interest Total Pre- judgement Period Number of Monthly Period Annuity Annuity Interest Interest Beginning Beginning Balance Ending (Beginning judgment Year Loss Months Loss Flow Rate Factor Amount (Annuity) Accrued Principle Balance Factor Balance balances) Interest 2016 $22,631 7.2 $3,152 0.46% 7.284 $22,956 $325 $0 $0 $0 1.034 $0 $0 $325 2017 $50,702 12.0 $4,225 0.46% 12.309 $52,010 $1,307 $325 $22,631 $22,956 1.057 $24,261 $1,305 $2,612 2018 $29,551 12.0 $2,463 0.46% 12.309 $30,313 $762 $2,937 $73,333 $76,271 1.057 $80,605 $4,334 $5,096 2019 $3,884 1.6 $2,411 0.46% 1.613 $3,889 $5 $8,034 $102,884 $110,918 1.007 $111,744 $826 $832 2019 $25,473 9.9 $2,566 0.46% 10.136 $26,005 $531 $8,865 $106,768 $115,634 1.047 $121,045 $5,411 $5,942 Total Pre-judgment Interest: $14,808

Table 4B: Pre-Judgment Interest Modified Fresquez v. BNSF Brandon K. Fresquez' Pre-judgment Interest Date of Termination: 05/27/16 Date of Verdict: 02/19/19 Date of Judgement: 12/17/19 Pre- Pre- judgment Pre- 5.54% Ordinary Ending judgement Beginning Beginning Interest Total Pre- judgement Period Number of Monthly Period Annuity Annuity Interest Interest Beginning Beginning Balance Ending (Beginning judgment Year Loss Months Loss Flow Rate Factor Amount (Annuity) Accrued Principle Balance Factor Balance balances) Interest 2016 $23,336 7.2 $3,250 0.46% 7.284 $23,672 $336 $0 $0 $0 1.034 $0 $0 $336 2017 $52,214 12.0 $4,351 0.46% 12.309 $53,561 $1,346 $336 $23,336 $23,672 1.057 $25,017 $1,345 $2,692 2018 $31,077 12.0 $2,590 0.46% 12.309 $31,878 $801 $3,027 $75,551 $78,578 1.057 $83,043 $4,465 $5,267 2019 $4,089 1.6 $2,538 0.46% 1.613 $4,095 $6 $8,294 $106,627 $114,922 1.007 $115,777 $856 $862 2019 $26,737 9.9 $2,693 0.46% 10.136 $27,295 $558 $9,156 $110,717 $119,872 1.047 $125,482 $5,609 $6,167 Total Pre-judgment Interest: $15,323 Table 5A: Summation Unmodified

Fresquez v. BNSF Brandon K. Fresquez' Present Value Loss of Back and Front Pay Date of Termination: 05/27/16 Date of Verdict: 02/19/19 Date of Judgement: 12/17/19 5.54% Expected Earnings & Benefits Present Pre- Year (net of income taxes) Discount Value judgment Year Age Frac But-for Post-RR Delta POL Factor Loss Interest Termination - Loss of Back Pay Begins 2016 31 0.60 $35,556 $12,925 $22,631 100.00% 100.00% $22,631 $325 2017 32 1.00 $68,422 $17,719 $50,702 100.00% 100.00% $50,702 $2,612 2018 33 1.00 $69,073 $39,522 $29,551 100.00% 100.00% $29,551 $5,096 2019 34 0.13 $9,300 $5,416 $3,884 100.00% 100.00% $3,884 $832 Loss of Back Pay: $106,768 Verdict - Loss of Front Pay Begins 2019 34 0.83 $65,813 $40,340 $25,473 100.00% 100.00% $25,473 $5,942 Pre-judgment Interest: $14,808 Judgment 2019 34 0.04 $3,138 $1,824 $1,314 99.91% 99.97% $1,312 2020 35 1.00 $77,250 $46,921 $30,329 99.73% 99.49% $30,094 2021 36 1.00 $76,631 $47,884 $28,748 99.54% 99.18% $28,382 2022 37 1.00 $76,427 $49,153 $27,273 99.35% 99.09% $26,849 2023 38 1.00 $76,565 $50,789 $25,776 99.15% 99.08% $25,323 2024 39 1.00 $76,795 $52,347 $24,448 98.94% 98.86% $23,914 2025 40 1.00 $77,047 $53,970 $23,077 98.72% 98.49% $22,439 2026 41 1.00 $74,621 $53,793 $20,828 98.50% 98.14% $20,134 2027 42 1.00 $74,800 $55,217 $19,583 98.26% 97.85% $18,827 2028 43 1.00 $74,888 $56,606 $18,282 98.00% 97.66% $17,497 2029 44 0.13 $10,058 $7,577 $2,481 97.73% 97.19% $2,356 Loss of Front Pay: $242,600 Post-verdict: 10.00 years, per order Loss of Back Pay: $106,768 plus Loss of Front Pay, Pre-judgment: $25,473 equals Basis for Pre-judgment Interest: $132,241 plus Pre-judgment Interest: $14,808 equals Pre-judgment Loss: $147,049 plus Loss of Front Pay, Post-judgment: $217,127 equals Loss Excluding Post-Retirement Benefits: $364,176 plus Loss of Tier I / Social Security Benefits: $19,298 plus Loss of Tier II Benefits: $56,871 plus Associated Income Taxes: $2,507 equals Total Loss Award: $442,852 plus Income Taxes on Award: $140,700 equals Tax-adjusted Award: $583,553 Table 5B: Summation Modified

Fresquez v. BNSF Brandon K. Fresquez' Present Value Loss of Back and Front Pay Date of Termination: 05/27/16 Date of Verdict: 02/19/19 Date of Judgement: 12/17/19 5.54% Expected Earnings & Benefits Present Pre- Year (net of income taxes) Discount Value judgment Year Age Frac But-for Post-RR Delta POL Factor Loss Interest Termination - Loss of Back Pay Begins 2016 31 0.60 $36,262 $12,925 $23,336 100.00% 100.00% $23,336 $336 2017 32 1.00 $69,934 $17,719 $52,214 100.00% 100.00% $52,214 $2,692 2018 33 1.00 $70,599 $39,522 $31,077 100.00% 100.00% $31,077 $5,267 2019 34 0.13 $9,505 $5,416 $4,089 100.00% 100.00% $4,089 $862 Loss of Back Pay: $110,717 Verdict - Loss of Front Pay Begins 2019 34 0.83 $67,073 $40,336 $26,737 100.00% 100.00% $26,737 $6,167 Pre-judgment Interest: $15,323 Judgment 2019 34 0.04 $3,245 $1,830 $1,415 99.91% 99.97% $1,414 2020 35 1.00 $83,026 $48,079 $34,947 99.73% 99.49% $34,676 2021 36 1.00 $84,973 $49,853 $35,119 99.54% 99.18% $34,672 2022 37 1.00 $86,388 $51,775 $34,613 99.35% 99.09% $34,075 2023 38 1.00 $88,409 $53,976 $34,433 99.15% 99.08% $33,826 2024 39 1.00 $90,464 $55,999 $34,465 98.94% 98.86% $33,713 2025 40 1.00 $92,584 $58,106 $34,478 98.72% 98.49% $33,525 2026 41 1.00 $91,557 $58,193 $33,364 98.50% 98.14% $32,251 2027 42 1.00 $93,660 $60,125 $33,535 98.26% 97.85% $32,241 2028 43 1.00 $95,839 $62,122 $33,717 98.00% 97.66% $32,270 2029 44 0.13 $13,169 $8,280 $4,889 97.73% 97.19% $4,644 Loss of Front Pay: $334,044 Post-verdict: 10.00 years, per order Loss of Back Pay: $110,717 plus Loss of Front Pay, Pre-judgment: $26,737 equals Basis for Pre-judgment Interest: $137,454 plus Pre-judgment Interest: $15,323 equals Pre-judgment Loss: $152,777 plus Loss of Front Pay, Post-judgment: $307,307 equals Loss Excluding Post-Retirement Benefits: $460,084 plus Loss of Tier I / Social Security Benefits: $20,917 plus Loss of Tier II Benefits: $60,726 plus Associated Income Taxes: $8,764 equals Total Loss Award: $550,489 plus Income Taxes on Award: $145,684 equals Tax-adjusted Award: $696,173 ll. CONCLUSION For the reasons set forth above, the Court ORDERS as follows: 1. The portion of the Motion for Back and Front Pay (ECF No. 166) previously taken under advisement is GRANTED IN PART and DENIED IN PART as discussed above; 2. The Court finds that Plaintiff Brandon Fresquez is entitled to a total tax-adjusted award of back pay, front pay, and prejudgment interest through December 17, 2019 of $696,173; 3. The Clerk of Court shall enter judgment in favor of Plaintiff and against Defendant in the principal amount of $1,746,173—comprised of $696,173 for back pay, front pay, and prejudgment interest; $800,000 in compensatory damages; and $250,000 in punitive damages—with postjudgment interest at the federal statutory rate; 4. The Court will resolve the pending Motion for Fees and Costs (ECF No. 165) by way of separate Order; and 5. The Clerk shall terminate this case.

Dated this 17 day of December, 2019. BY te RT:

William JMWartinez United States District Judge