Nedder v. Rivier College

Opinion

Nedder v. Rivier College CV-95-116-SD 05/22/97 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Mary Nedder

v. Civil No. 95-116-SD

Rivier College

O R D E R

The extensive trial of this employment discrimination case1

culminated on May 5, 1997, when the jury returned verdicts in

favor of the plaintiff. Before the court at this juncture are

issues raised by certain post-trial proceedings.

1. Background

Plaintiff Mary Nedder was at times relative to these

proceedings employed by defendant Rivier College as an assistant

professor of religious studies. Afflicted by morbid obesity, she

contended that such condition comprised a disability causative of

the nonrenewal of her teaching contract. Accordingly, she

brought suit pursuant to the Americans with Disabilities Act

1See Nedder v. Rivier College, 908 F. Supp. 66 (D.N.H. 1995) (denying plaintiff the injunctive relief of reinstatement); Nedder v. Rivier College, 944 F. Supp. Ill (D.N.H. 1996) (ruling on defendant's motion for summary judgment; reducing claims to perceived disability under the ADA and the breach of contract claim). (ADA), 42 U.S.C. § 12101, et seq., and alleged a right of

recovery under other legal theories, including breach of

contract.

Rulings of the court prior to trial (supra note 1) reduced

plaintiff's claims to the perception of disability under ADA, 42

U.S.C. § 10102(2)(C), and breach of contract. The court reserved

for its own decision the issue of whether, if plaintiff

recovered, she would be entitled to the eguitable remedy of

reinstatement.

The jury returned a verdict on the ADA claim of $68,974, and

also awarded plaintiff $137,500 on the breach of contract claim.

Perceiving possible inconsistencies in the jury verdicts, and

desirous of input from counsel on the issue of reinstatement, the

court directed counsel to file legal memos concerning such

issues. Such memos have now been received and reviewed.

2. Discussion

a. Reinstatement

A plaintiff who has been the victim of discrimination is

entitled to be made whole through the use of eguitable remedies.

Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975).

Accordingly, "the first choice is to reinstate the plaintiff at

the original employer; this accomplishes the dual goals of

2 providing full coverage for the plaintiff and of deterring such

conduct by employers in the future." Selgas v. American

Airlines, Inc., 104 F.3d 9, 12 (1st Cir. 1997) (citation

omitted). Where, however, the reinstatement remedy is not

available, front pay is the alternative. Id. (citations

omitted). But the remedies of front pay and reinstatement are

not mutually exclusive. Id. at 13. The limitation is that

duplicative damages are to be avoided and "duplication most

commonly would be avoided by denying front pay when an immediate

reinstatement is ordered." Id.

The thrust of defendant's argument against reinstatement is

that, although rejected by the jury, its evidence that

plaintiff's teaching contract was nonrenewed because of failure

of the Pastoral Certificate Program and increasing concerns about

plaintiff's gualifications demonstrate that it would have taken

the same action in the absence of discrimination.2 This

evidence, says defendant, deprives the plaintiff of entitlement

to reinstatement. The court disagrees.

Once the college has been found to have impermissibly

discriminated in making an employment decision, its prerogative

2Defendant also argues that ongoing administrative and personnel issues may well reguire further intervention by the court if reinstatement is directed. Unfortunately, these are duties courts must assume as a result of the congressional direction that they rule concerning discrimination in employment.

3 to make such employment decisions must be subordinated to the

goals of the relevant discrimination statute. Brown v. Trustees

of Boston Univ., 891 F.2d 337, 359, reh'q denied (1st Cir. 1989),

cert, denied, 496 U.S. 937 (1990) (awarding tenure under Title

VII to professor against whom defendant university was found to

have discriminated). Although courts are understandably hesitant

to interfere with a college's independent judgment in choosing

its faculty, they will respect such judgment only so long as the

college does not discriminate. Id. at 360.

Having succeeded in her claim of discrimination under the

ADA, plaintiff is here entitled to the "make whole" remedy

provided by that statute. Id. Accordingly, the court herewith

orders that the defendant Rivier College expeditiously reinstate

plaintiff as a fourth-year, full-time faculty member of its

Religious Studies Department.

b. The Verdicts

The jury was instructed that plaintiff's damages under the

ADA would include back pay and benefits, less the amount

plaintiff had earned since the nonrenewal of her teaching

contract, together with compensatory damages to include emotional

pain, suffering, inconvenience, mental anguish, loss of enjoyment

of life, and other nonpecuniary losses. With reference to the

4 breach of contract claim, the jury was instructed that plaintiff

would be entitled to the benefit of her bargain with defendant,

to include loss of pay and benefits from her contractual

relations with the college. The jury was not instructed on the

issue of front pay.3

The verdicts as returned suggest a reversal of the awards in

that the ADA award of $68,974 approximated two years' loss of pay

and benefits, less mitigated damages. This was the amount to

which plaintiff would probably have been entitled under her

breach of contract claim.

On the other hand, the breach of contract award was a much

larger amount of $137,500, which would indicate that the jury

included in this award the compensatory damage items as to which

the court had given instructions.4

The court finds that, in any event, the awards are

duplicative and that plaintiff is entitled only to the larger

award of $137,500. Although defendant suggests that plaintiff

3Plaintiff did not choose to present evidence as to what would have been the future pay and benefits of members of the defendant's faculty. Presumably, such pay and benefits would increase yearly by some amount to account for inflationary pressures.

4Defendant makes the guantum leap that the $137,500 verdict must necessarily have included an award for front pay. In light of the instructions in this regard, which omitted front pay, the court finds that this argument is unpersuasive.

5 may not receive money damages if she is reinstated, as the court

has pointed out, even an award of front pay will not be barred by

reinstatement. Accordingly, when final judgment is entered,5 the

monetary award to plaintiff will be limited to the sum of

$137, 500.

3. Conclusion

For the reasons outlined, the court finds that plaintiff is

entitled to and herewith orders her expeditious reinstatement as

a fourth-year, full-time faculty member of Rivier College in its

Department of Religious Studies. When judgment is finally

entered, the court further orders that the monetary amount of

such judgment be limited to the sum of $137,500.

There remains the issue of attorney's fees, and in that

respect plaintiff's counsel is directed to file within ten days

of the date of receipt of this order its motion for such fees,

supported by the reguisite contemporaneous time records and

affidavits. Defendant's counsel shall file its response thereto

within ten days of receipt of the filings of plaintiff's counsel.

When the court has received these documents, it will attempt to

expeditiously rule on the attorney's fees, following which

5The court has directed that the entry of judgment be deferred pursuant to Rule 58, Fed. R. Civ. P.

6 judgment will be entered so the parties may exercise their

appellate rights.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

May 22, 1997

cc: Paul McEachern, Esg. Daniel P. Schwarz, Esg.