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99-0946 Salveson v. Douglas County

By: dmc-admin//July 16, 2001//

99-0946 Salveson v. Douglas County

By: dmc-admin//July 16, 2001//

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“In deciding to award back pay, the circuit court found that Salveson was physically unable to work as a full-time street paramedic, but that she was able to perform other, less rigorous paramedic work. The court noted that after she became physically unable to work as a full-time street paramedic, Salveson worked as an LPN, a medical examiner, and a file clerk for the Douglas County register of deeds.

“The circuit court concluded that the evidence adduced at trial supported a finding that ‘[Salveson] was qualified to work as a paramedic with Gold Cross either as a paramedic instructor or in some other limited capacity to accommodate her physical limitations, and although she would have been hired if she had applied, she did not [apply] because of the presence of her former supervisor.’ In referring to the discrimination and harassment, the court further concluded that ‘had it not been for this conduct, plaintiff would most likely have been hired by Gold Cross either as an instructor or in some other light capacity.’…

“Evidence in the record also supports the circuit court’s finding that Salveson was unable to work for Gold Cross because of the psychological injuries she suffered as a result of sexual harassment and discrimination, and because [her former supervisor] Collyard was employed by Gold Cross.”

Further, we reject the county’s argument that plaintiff’s application for duty disability benefits is fundamentally inconsistent with her assertion that she could have worked for Gold Cross.

“We agree with the determinations of the circuit court and the court of appeals and find that Salveson’s positions are not clearly inconsistent, and therefore are not subject to judicial estoppel. …

“After receiving duty disability benefits, Salveson did not claim that she was physically capable of working as a street paramedic for Gold Cross. She claimed only that she believed she ‘would have been hired as an instructor’ had she applied. It is undisputed that the duties and physical requirements of being a street paramedic differ from those required to be a trainer or instructor. We conclude that the positions taken by Salveson are not clearly inconsistent, that judicial estoppel is not appropriate on the facts of this case, and that the circuit court properly exercised its discretion in not invoking the doctrine.

“We further conclude that the County has not overcome the presumption that back pay should be awarded, and that the circuit court properly exercised its discretion in finding that had Salveson not suffered from the effects of sexual discrimination and harassment, she likely would have been hired by Gold Cross. We therefore affirm the decision to award Salveson back pay.”

Further, the circuit court properly awarded plaintiff front pay despite her knee and back problems. “The court clearly took into account Salveson’s physical problems, but determined that even with those problems, she likely would have been hired by Gold Cross if she had applied for employment at Gold Cross.

“The court did not specifically state that Salveson could not have obtained comparable employment other than at Gold Cross. However, a Title VII plaintiff is not required to establish that he or she could not have obtained comparable employment. Under Title VII, a victim of discrimination is presumptively entitled to full relief.”

Finally, we agree with the trial court’s finding that plaintiff’s back pay and front pay awards should not be reduced by the amounts she received in disability benefits.

“We conclude that Salveson’s awards of back pay and front pay should not be offset by benefits she received for her disability; she and other paramedics paid for those benefits by foregoing pay increases and other benefits. Douglas County should not benefit simply because Salveson also received collateral disability benefits. The County will not pay twice. … The circuit court properly exercised its discretion in determining that Salveson contributed to the retirement fund from which her disability benefits are paid, and that pursuant to the collateral source rule, her benefits should not be offset.”

The employer’s other arguments, concerning the cap on damages imposed by 42 U.S.C. sec. 1981a(b)(3) are similarly unavailing.

Judgment affirmed.

Court of Appeals, Prosser, J.

Attorneys:

For Appellant: John J. Prentice, Andrew T. Phillips, Milwaukee

For Respondent: Kyle H. Torvinen, Superior

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