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Kelmendi v. Detroit Board of Education

United States District Court, E.D. Michigan, Southern Division

April 27, 2017

JOHN P. KELMENDI, Plaintiff,



         This employment discrimination and retaliation case under Title VII, the Age Discrimination in Employment Act, and Michigan's Elliott-Larsen Civil Rights Act, went to trial in September 2016. The jury found no liability on Plaintiff John Kelmendi's claim that Defendants Detroit Public Schools and Detroit Board of Education discriminated against him when they denied him a promotion opportunity. But the jury found that Defendants retaliated against him for filing several EEOC complaints and awarded him back pay, front pay, and non-economic damages totaling $630, 900. The Court took two motions under advisement before submitting the case to the jury, and two other motions have followed since the verdict.

         For the reasons that will be discussed, the Court will grant in part Defendants' motion in limine to bar back pay and front pay (which the Court had taken under advisement) and will vacate the jury's front pay award of $152, 400. The Court will deny Defendants' Rule 50(a) motion for judgment as a matter of law (which the Court had also taken under advisement), deny Defendants' post-trial Rule 50(b) motion, and also deny Defendants' alternative Rule 59 motion for a new trial. Finally, the Court will grant in part Plaintiff's motion for attorney fees and prejudgment interest.



         Plaintiff John Kelmendi served as a teacher and administrator throughout his lengthy career with the Detroit Public Schools system. Sometime around 2008 or 2009, Kelmendi became an “instructional specialist, ” a role he had at Detroit's Pershing High School at certain times relevant to this case. (R. 103, PID 2219.)

         On July 8, 2011, DPS's Department of Multilingual-Multicultural Education posted an opening for a position called “Program Supervisor, Bilingual.” (Ex. 1.[1]) Kelmendi applied. (Ex. 3, 4.) A committee of assistant superintendents interviewed him and several other candidates that August. (Ex. 5.) They did not select Kelmendi. Instead, the committee chose Claudia Martinez, a younger, Hispanic woman. (Ex. 74, 75.)

         The core of Kelmendi's case has been his claim that DPS refused to hire him for the program supervisor position because of his age and national origin (Albanian). For instance, the leader of the hiring committee, former assistant superintendent Frano Ivezaj (himself Albanian), testified that DPS wanted someone Hispanic to fill the role. Kelmendi and Ivezaj also both claimed that one of the committee members inappropriately asked Kelmendi additional questions that were not asked of other candidates. But Kelmendi's and Ivezaj's accounts were inconsistent, and other committee members denied that claim.

         The jury rejected Kelmendi's discrimination claim. But it found that DPS retaliated against him after he complained about the hiring process and other issues. So what follows is a description of the trial testimony pertinent to Kelmendi's retaliation claim.


         In late August 2011, Kelmendi complained to Sheryl Jones, then-Director of Social Studies at Pershing High School, about the program supervisor position's hiring process. Jones testified that, among other things, Kelmendi said he was “going to file an EEOC case against the District.” (R. 102, PID 2095.) She had written the same in a statement she drafted shortly after the encounter. (Ex. 36.) For his part, Kelmendi actually denied that he said anything about the EEOC during his conversation with Jones. (R. 103, PID 2240.) But Kelmendi did testify that he told someone named Minnie Pierce he would be filing an EEOC charge. (R. 103, PID 2234-36.) He did not say when he had the conversation or who she was. He also testified that he went to an unspecified place, asked how to fill out the forms for EEOC charges, and filled them out in November 2011. (R. 103, PID 2236.) But he said that he held off filing his charge because he was waiting for someone to “come and say, . . . ‘Dr. K, I'm sorry. We have a position for you. We are going to compensate you.'” (R. 103, PID 2236.)

         That never happened. So on February 14, 2012, Kelmendi filed a charge of discrimination with the EEOC. He claimed that DPS denied him the program supervisor position because of his age, sex, and national origin. (Ex. 45.)

         At trial, Kelmendi claimed that two main forms of retaliation flowed from this charge: a series of poor evaluations, and because of the negative evaluations, difficulty getting rehired following a school-wide reduction in force.


         Shortly after filing his EEOC complaint, Kelmendi indeed received a series of poor teaching evaluations. At the time, DPS had reclassified many instructional specialists like Kelmendi as teachers to take on class loads to fill a shortage. (R. 103, PID 2170-72.) It was unclear whether Kelmendi had been formally reclassified as a teacher, but he spent at least some time teaching in early 2012. As then-principal, Donna Thornton, testified, he taught two classes at Pershing High School under her. (R. 104, PID 2278.)

         The first problematic evaluation came on March 9, 2012, when Tonya Norwood, an assistant principal at Kelmendi's school, observed that Kelmendi's performance was “satisfactory” but also noted some deficiencies. (Ex. 7.) For example: “Lesson plans should be more detailed”; “Accommodations must be made for special education students”; “Attendance was not taken in first ten minutes of class”; “Minimal interaction with students”; and one student “came to class late . . . and was eating food.” Kelmendi disputed this evaluation's validity, saying that Norwood “does not even hold a certification” and that “only the principal could have come and evaluated” him. (R. 103, PID 2244.)

         The second evaluation came on April 23, 2012. Alicia Brown, another assistant principal, used an evaluation form called a “PS 360, ” indicating that Kelmendi was “effective” in one area, “ineffective” in one, and “minimally effective” in a multitude of other areas. (Ex. 8.)

         Kelmendi pointed to several problems with this evaluation. First, Kelmendi testified that Brown stayed for only 23 minutes of his one-hour and twenty-five-minute class. (R. 105, PID 2430-31.) He said it was required for evaluators to stay for the whole class. (R. 105, PID 2498-99.) Second, Kelmendi also claimed that Brown never followed up with him within 24 hours of the evaluation, as required. But he admitted that he called in sick for the next three school days afterward and was therefore not even available to meet with her. (R. 105, PID 2428, 2503.) Third, Kelmendi disputed the propriety of using a 360 evaluation on an instructional specialist. To that end, Ivezaj testified that the 360 tool was designed to evaluate teachers, not instructional specialists. (R. 101, PID 1925-26.) But Gwendolyn de Jongh, the former head of DPS's human resources, said that if an instructional specialist was also teaching-as Kelmendi was-it would be appropriate to use that evaluation tool because all teachers had to be evaluated. (R. 103, PID 2167-68.) But she added that if the instructional specialist had not been “reclassified” as a teacher, it would have been inappropriate to use the 360 tool. (R. 103, PID 2174.) Thornton testified that Kelmendi was not formally reclassified, but like any instructional specialist who teaches, he was nevertheless subject to evaluation as a teacher. (R. 104, PID 2279, 2299.)

         This second evaluation led to a third one. On May 16, 2012, Thornton emailed administrators at DPS, including Ivezaj, and asked to have six teachers, including Kelmendi, evaluated. (Ex. 35.) She testified that these six individuals wanted to refute previous poor evaluations. (R. 104, PID 2281.) She said that she had not at that time known that Kelmendi was planning to, or had already filed, his EEOC charge. (R. 104, PID 2288.) But Kelmendi testified that both Thornton and the prior evaluators had seen his EEOC complaint sitting on his desk. (R. 103, PID 2239.)

         In response to Thornton's request, the third evaluation happened on May 21, 2012. Sheryl Jones-the one to whom Kelmendi had initially complained about the hiring process-was the evaluator. But Jones testified that by this time, she did not know Kelmendi had “actually filed” an EEOC charge. (R. 102, PID 2111.) Jones filled out a “Formal Observation Form” instead of another 360, scoring Kelmendi 41 points, which fell in the category of “unsatisfactory”-the lowest possible. (Ex. 9.) She noted, among other things, “Instruction was never delivered, record books were unavailable, students came in and out of classroom at will.”

         Kelmendi disputed the validity of this evaluation as well. For instance, Ivezaj testified that Jones was not qualified to evaluate Kelmendi because the two had been in conflict with one another, and her background was not in the appropriate area. (R. 101, PID 1937-38.) Jones countered that both she and Kelmendi were social studies specialists, that she was qualified to evaluate Kelmendi, and that she thought the two had a “great relationship.” (R. 102, PID 2098- 99.) Ivezaj also testified that prior to Thornton's email requesting the evaluation, he had not heard of a principal ever directly approaching the central office to request an observation of an instructional specialist. (R. 101, PID 1927.) Kelmendi also urged that he was set up to fail. For instance, he testified that Jones “came late and left within 21 minutes.” (R. 103, PID 2248.) He also said that in the particular class she evaluated, “I had autistic children. I had dea[f] children. I had mentally impaired children. I had ADD's in there, 14 of them. . . . I had five levels of bilingual education in there, beginners who weren't going to graduate.” (R. 103, PID 2247-48.)[2]

         Kelmendi testified that after each evaluation, he wrote a memo to each evaluator and gave a copy to the union leader and principal. (R. 105, PID 2434.) He claimed that before these evaluations (and thus before his EEOC charge) he had received only one form of negative feedback: he worked too hard. (R. 105, PID 2448.)

         On June 7, 2012, Kelmendi filed another charge of discrimination with the EEOC. (Ex. 46.) He claimed that the poor performance evaluations on March 9, 2012, April 23, 2012, and May 21, 2012 were a retaliatory response to his prior discrimination charge.

         Defendants nonetheless offered evidence suggesting that there were plenty of legitimate reasons to scrutinize Kelmendi's classroom performance. For instance, Kelmendi's principal, Thornton, testified that a student had previously complained that she “wasn't getting her academic rigor like she should” in his class. (R. 104, PID 2287.) Thornton had also discovered an irregularity in one student's record. The student had “F's” in every class, save a sole “A” in Kelmendi's-even though she had been absent for months and had actually attended an entirely different school outside of the DPS system during the time that Kelmendi awarded her the “A.” (R. 104, PID 2289-90.) Thornton said that when she confronted Kelmendi, he “was adamant” that the student had taken the final exam-even though Kelmendi had marked her absent the day of the exam. (R 104, PID 2291.)


         Kelmendi's second theory of retaliation flowed from the first: Kelmendi claimed that because of the poor evaluations and his EEOC charges, once DPS laid him off in a system-wide reduction-in-force, he could not get rehired within DPS or hired elsewhere.

         A layoff notice dated April 10, 2012, stated that due to the financial emergency facing Detroit Public Schools, and an ensuing workforce reduction, Kelmendi would be laid off effective the end of the day August 24, 2012. (Ex. 11.) Another letter dated August 22, 2012 would later confirm that. (Ex. 12.)

         Kelmendi testified that between May 23, 2012 and August 23, 2012, he went to various job fairs to find another position but was told by unspecified people from unspecified schools that he would have to drop his EEOC charge to be hired. (R. 105, PID 2406.) He also testified that his poor performance review-particularly the 360 evaluation-was in a “public database” and that at least two principals of schools to which he applied (one in another district) cited his poor rating for declining to hire him. (R. 105, PID 2445, 2448, 2473.) According to Kelmendi, employees with the highest performance evaluation ratings had priority when DPS recalled people from layoff status. (R. 105, PID 2446.)

         The parties disputed whether anyone outside of Kelmendi's DPS superiors had access to his 360 evaluation. Kelmendi claimed that he actually saw his 360 evaluation in a public database (although only by accessing it in a mysterious back room somewhere): “I went to Wayne County Intermediate Schools. I have some friends there who were administrators. I said, ‘Would you show me how to get into this website?' They took me to a back room, was a . . . computer. They showed me how to enter on it, how to look it. I looked at it.” (R. 105, PID 2442.) Ivezaj said that he “was told” that 360s were public. (R. 102, PID 2016.) But the then-superintendent, Karen Ridgeway, testified that “there are never any individual teachers' scores that are actually publicized” or available to other school districts through the system and that DPS published aggregated teacher evaluation data alone. (R. 81, PID 2068-69.)

         On March 10, 2013, Kelmendi filed another charge of discrimination with the EEOC. (Ex. 47.) He claimed that between May 23, 2012 and August 23, 2012 he had applied for various DPS positions but had been denied employment due to, among other things, retaliation for his prior complaints.

         Despite his poor performance ratings, a May 29, 2013 letter notified Kelmendi that DPS had recalled him to employment. (Ex. 13.) The letter stated that he had five days to respond. Otherwise, DPS would consider his employment voluntarily resigned. Kelmendi claimed that this recall itself was retaliatory because DPS intentionally sent it to the wrong address so that he would not be able to respond in time. This too was disputed.

         DPS sent the letter to a Detroit address that was undisputedly associated with Kelmendi. He admitted that he at times lived at the address, both in the late 1990s and in 2014 during a period in which he claims he was homeless. (R. 105, PID 2487.) The address was an abandoned house that his father owned. (R. 105, PID 2488.) He not only lived at that address at times but also used it as his address of record for at least some DPS-related issues. For instance, when Kelmendi applied for the program supervisor position in 2011, his application, resume, and cover letter all used the Detroit address. Kelmendi's explanation for why he too used this supposedly wrong address was that his wife prepared his application and inadvertently used the Detroit address. (R. 105, PID 2477-78.)

         According to Kelmendi, DPS should have sent the recall notice to a Shelby Township address. Kelmendi produced a DPS “change of address” form dated August 18, 2006, which lists his Shelby Township address as his new address. (Ex. 69.) Kelmendi testified that he filled out the form at DPS's human resources, and they gave him a copy. (R. 105, PID 2482.) But de Jongh (the former human resources head) testified that she could not determine when or if human resources received the form because the form had no date-stamp. (R. 103, PID 2161.) Still, Kelmendi produced a letter showing that at least someone at DPS had his Shelby Township address-a November 2006 letter regarding leave under the Family Medical Leave Act. (Ex. 68.) But de Jongh suggested that it was possible that only the “Leave Management” department of human resources had the Shelby Twshp. address and that this address did not actually get into the system. (R. 103, PID 2164.)

         In any event, Kelmendi never returned to DPS following the May 2013 recall letter.


         The trial raised another issue impacting Kelmendi's claim that he could not return to work due to DPS's retaliation: would his health even have permitted him to return?

         This issue stems from a work-related injury that Kelmendi suffered just before DPS laid him off. Kelmendi testified that on June 7, 2012, two boxes of books fell on him while he was working in his school's book room, hitting his back and head and injuring his left shoulder. (R. 105, PID 2410-11.) It also reinjured his knee that he had injured at work in 2006. (R. 105, PID 2420, 2422.)

         As a result of the June 2012 injury, the parties vigorously contested whether Kelmendi could return to work, and if so, in what capacity-as a teacher or as an instructional specialist.

         This calls for a brief discussion of the distinction between the two positions. According to Ivezaj: “A teacher is one who has at least five classes to teach per day. Five hours in a class of 15 or more students and that is a teacher. An instructional specialist may work with a teacher with a few students. Instructional specialist may provide the resources the teacher need. Instructional specialist goes in and observes the teacher as a colleague and supports that teacher so that she could do her job more effectively and efficiently. An instructional specialist may model. They may recommend to the principal a particular workshop that the teacher can benefit from. So, it's just to support the teacher.” (R. 101, PID 1924.) He added that instructional specialists are not teachers. (R. 101, PID 1924.) But he later testified that they are part of the teachers union, paid as teachers, and that principals can utilize them as teachers. (R. 102, PID 2019-20.) Jones similarly testified that instructional specialists are “master teachers who can support teachers in instruction. They can provide model lessons. They can show the teacher actually, hands on, this is how you teach this c[l]as[s]” and that their duties “could include covering classes.” (R. 102, PID 2093.) And again, many instructional specialists had been reclassified as teachers to take a larger class load.

         To support his claim for back pay and front pay, Kelmendi's theory at trial was that he was healthy enough to work as an instructional specialist but would need surgery (and recovery time) to be able to return to the classroom as a teacher. (See, e.g., R. 105, PID 2474.) The defense painted this theory as inconsistent with Kelmendi's conduct between the time of his injury until the time of trial.

         First, Kelmendi filed a worker's compensation claim in which he and his longtime treating physician, Dr. Peter Salvia, at times apparently took the position that Kelmendi was totally unable to work. Kelmendi admitted that at the worker's compensation trial, he appeared with a cane and a “shoulder pouch, ” and he wore a knee brace every day. (R. 105, PID 2536.) Even though trial in this case happened just a few months later, Kelmendi appeared with no such props. He also admitted that he testified at the worker's compensation trial that his condition was extreme-for instance, he had to crawl to the bathroom. (R. 105, PID 2541.) Defendants also impeached him with testimony from that trial in which he answered “no” to the question of whether he could “do anything.” (R. 105, PID 2543.) Salvia also admitted that twice in connection with Kelmendi's worker's compensation claim, he testified that Kelmendi was “unable to work.” (R. 106, PID 2578.)

         Second, Kelmendi applied for social security supplemental security income benefits, and an administrative law judge found him to be “disabled” within the meaning of the Social Security Act because of his condition.

         As background, by February 2013, Kelmendi said he was “totally out of every single dime” and “sold everything” to pay for his medication. (R. 105, PID 2424.) He said that his wife filed for divorce at around this time too. He said that when she “left, she took everything.” (R. 105, PID 2460.) Kelmendi said that when he was trying to figure out how to have Medicaid cover the surgery he needed, he was told by an unspecified person at an unspecified place at an unspecified time (a common theme in his testimony) that “[i]t's a rule” that he also “must apply for Social Security and SSI” even though he did not want to. (R. 105, PID 2464.) So he applied for Social Security benefits in January 2014. (R. 105, PID 2464.) He said that when he applied for social security, he indicated that he was an instructional specialist, that that was an “administrative position, ” and that he could not work as a teacher absent the surgery. (R. 105, PID 2533.) The ALJ found that Kelmendi's residual functional capacity precluded him from teaching. (See Ex. 37.) The ALJ made no mention of the instructional specialist position or any administrative positions in Kelmendi's prior work history or future work prospects.

         Third, in October 2014, DPS ultimately offered to reinstate Kelmendi as a teacher-not as an instructional specialist. (R. 105, PID 2512.) Kelmendi offered many suspect reasons for rejecting that offer in his testimony. His health was not one of them.

         He said that his union had advised him that he would lose his tenure and pension if he took the new position and would have no “medical coverage whatsoever.” (R. 105, PID 2521- 22.) He could not identify which union people gave him this information-only that he had spoken with two people (a Caucasian man and an African-American man), both of whom told him to reject the offer and insist on becoming an instructional specialist without any “conditions” to being rehired. (R. 105, PID 2529; R. 106, PID 2583-85.) He also said the union told him that DPS made the reinstatement offer in “bad faith.” (R. 105, PID 2530.) Kelmendi also claimed that an unnamed person with the state of Michigan advised him not to take the position. (R. 106, PID 2651.)

         Dr. Salvia's testimony also clouded whether Kelmendi could return to work as an instructional specialist. Kelmendi said that Dr. Salvia had told him he could do “administrative work, ” including his “old responsibilities as an instructional specialist.” (R. 105, PID 2466-67.) Salvia himself testified that Kelmendi has been unable to work as a teacher since June 2012 but could do other work. (R. 106, PID 2575.) Salvia similarly testified that Kelmendi could work as an administrator without restrictions but not at all as a teacher. (R. 106, PID 2561.) But he also said, “I am not quite sure what the functions of an Instructional Specialist are so I'd be unqualified to discuss that.” (R. 106, PID 2571.) Yet he admitted that in his prior deposition that he had testified that Kelmendi could not perform the duties of an instructional specialist. (Id.) Dr. Salvia said he had recommended knee and neck surgery, but Kelmendi could not pay for them. (R. 106, PID 2557.) Dr. Salvia said that it would take six weeks for Kelmendi to recover from the knee surgery and nine weeks from the neck surgery. (R. 106, PID 2560-61.)


         Kelmendi presented limited evidence surrounding damages. His claim for non-economic damages centered on the psychological issues and bout with homelessness he says he suffered following the layoff. For example, a former Pershing High School security officer who was friends with Kelmendi testified that Kelmendi called him on August 31, 2014 and told him he was homeless. (R. 103, PID 2124, 2127-28.) The officer said that he found Kelmendi sleeping under an overpass. (R. 103, PID 2128.)

         Dr. Salvia also testified that when Kelmendi was homeless and divorced, he was depressed, so he referred him to a psychiatrist. (R. 106, PID 2564-65.) Kelmendi said that he had sought mental health care after he was not promoted but no one would pay for his treatment- though he had an appointment “next Friday.” (R. 106, PID 2629.) Kelmendi testified that he was depressed and felt anxiety “especially before the school opens up or there's a holiday or something, because I enjoyed what I did. That was my life.” (R. 106, PID 2646.) Kelmendi said that when he was homeless, “I was very depressed. It was a point in my life that whether I lived or died, it really didn't matter.” (R. 105, PID 2485.)

         As for economic damages, the figures came solely from Kelmendi's own testimony. Kelmendi testified that he never planned to retire and would work at least until age 75, an additional 12 years, or roughly 16 from when he was terminated. (R. 106, PID 2634.) Kelmendi testified that had he worked until 75, his pension would have been “probably over 5, 000” per month instead of the current level of $1, 960 he was vested at. (R. 16, PID 2635.) Kelmendi also testified that his net salary as an instructional specialist was “probably” $1, 800 every two weeks. (R. 106, PID 2637.) As for the social security benefits he received, Kelmendi testified that he received $960 some months, $1060 other months, and once $1, 140. (R. 106, PID 2637.) He said the gross was $1, 300 per month. (R. 106, PID 2650.) It is not clear exactly when he started to receive the benefits. The ALJ approved the award in August 2015, but Kelmendi testified, “I don't know how they figured out what time, how. I just know I received benefits after 2013.” (R. 105, PID 2533.)


         By way of procedural background, Defendants filed a series of pretrial motions in limine, including a motion “To Bar Any Claim For Back Pay And/Or Front Pay Damages.” (R. 78.) Defendants offered several theories in that motion, including that the Court should bar Kelmendi from receiving any back pay or front pay “for any period after he was approved for and began receiving Social Security disability benefits.” (R. 78, PID 1410.) Defendants cited no authority for that position and put forth no evidence concerning Kelmendi's Social Security benefits. So the Court denied the motion, noting that Kelmendi had acknowledged that “his social security disability benefits should be deducted from any back pay awards.” (R. 91, PID 1709.)

         Several days before the trial, Defendants filed a renewed motion in limine to bar any back pay or front pay as a matter of law. (R. 92.) Defendants again urged-this time with at least some authority and evidence (though still limited)-that the Court should bar Kelmendi's back pay and front pay because of his receipt of social security disability benefits. The Court took the motion under advisement pending the outcome of the jury's verdict. The Court also took under advisement Defendants' motion for judgment as a matter of law, which they made at the close of Kelmendi's case.

         As noted, the jury directed a verdict for Defendants on Kelmendi's discrimination claim but found that Defendants had unlawfully retaliated against him. The jury awarded Kelmendi $228, 500 in back pay, $152, 400 in front pay, and $250, 000 in non-economic damages. (R. 97.)

         Post-trial, Defendants filed a motion for judgment as a matter of law, or in the alternative, for a new trial. (R. 108.) Kelmendi also filed a motion for attorneys' fees and prejudgment interest. (R. 111.)

         All of the pending motions are fully briefed and ready for disposition. After careful consideration of the briefs and thorough review of the record, the Court finds that oral argument will not aid in resolving the pending motions. See E.D. Mich. LR 7.1(f)(2).


         The Court begins with Defendants' renewed motion in limine to bar back and front pay due to Kelmendi's receipt of social security disability benefits.



         The Court must first address a threshold issue: should the Court have sent the issue of front pay to the jury?

         Front pay, or future damages, “is simply money awarded for lost compensation during the period between judgment and reinstatement or in lieu of reinstatement.” Pollard v. E.I. du Pont de Nemours & Co.,532 U.S. 843, 846 (2001) (Title VII). “Back pay, in contrast, is money awarded for lost compensation during the period between the date of the plaintiff's injury . . . and the date on which damages are ...

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