U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. A.C. WIDENHOUSE, INC.

Filing 110

MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 2/22/2013, that EEOC is entitled to recover from Widenhouse the amount of Fifty Thousand dollars ($50,000) in compensatory and punitive damages. FURTHER, that Mr. Gill is entit led to recover from Widenhouse the amount of One Hundred Ninety-Three Thousand Five Hundred Nine and 79/100 dollars ($193,509.79), this sum being comprised of One Hundred and Five Thousand and 00/100 dollars ($105,000) in compensatory and p unitive damages, plus Seventy-One Thousand Six Hundred Sixty-Two and 82/100 dollars ($71,662.82) in back pay, plus compounded prejudgment interest on the back pay award in the amount of Sixteen Thousand Eight Hundred Forty-Six and 97/100 dollars ($16,846.97). FURTHER, that Plaintiffs be awarded their costs of this action and that the parties are advised that any application for attorneys' fees must comply with Local Rule 54.2(Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,

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Plaintiff,
&
CONTONIUS GILL,
Plaintiff-Intervenor,
v.
A.C. WIDENHOUSE, INC.,
Defendant.

1:11-cv-498

MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
This

civil

rights

action

was

tried

to

a

jury

bifurcated proceeding) from January 22 to 28, 2013.

(in

a

On January

28, 2013, the jury returned separate verdicts as to liability
and

damages

in

favor

of

Plaintiffs

U.S.

Equal

Employment

Opportunity Commission (“EEOC”) and Contonius Gill (“Mr. Gill”)
and

against

(Docs.

85

&

Defendant
88.)

A.C.

Widenhouse,

Specifically,

as

to

Inc.
the

(“Widenhouse”).
EEOC’s

claim

of

hostile work environment under Title VII of the Civil Rights Act
of 1964 (as amended), 42 U.S.C. § 2000e et seq. (“Title VII”),
on behalf of Robert Floyd, Jr. (“Mr. Floyd”), the jury awarded
$20,000 in compensatory damages and $75,000 in punitive damages.

As to Mr. Gill, the jury awarded $30,000 in compensatory damages
on his hostile work environment claim under Title VII and 42
U.S.C. § 1981, found liability for discriminatory discharge and
retaliatory discharge in violation of Title VII and 42 U.S.C.
§ 1981, and awarded $75,000 in punitive damages.
Mr. Gill’s claim for back pay was tried to the court and is
ready

for

decision.

In

addition,

the

following

motions

are

before the court: Mr. Gill’s motion for prejudgment attachment
and/or

seizure

of

Widenhouse’s

assets

(Doc.

90);

Mr.

Gill’s

motion for prejudgment interest (Doc. 92); EEOC’s motion for
injunctive

relief

(Doc.

94);

and

Widenhouse’s

motion

for

remittitur of damages or, in the alternative, a new trial on
damages (Doc. 97).
I.

Each will be addressed below.

ANALYSIS
A.

Widenhouse’s Motion for Remittitur and/or New Trial

The jury returned a total verdict for Plaintiff EEOC in the
amount of $95,000 ($20,000 in compensatory damages; $75,000 in
punitive damages).
to

$50,000

in

Widenhouse moves to remit the damages award

accordance

with

the

monetary

cap

contained

in

Title VII, 42 U.S.C. § 1981a(b)(3)(A) (limiting total recovery
to $50,000 for each complaining party when the defendant has
more than 14 and fewer than 101 employees in each of 20 or more
calendar weeks in the current or preceding calendar year), or,
in the alternative, for a new trial pursuant to Federal Rule of
2

Civil Procedure 59(a).

The EEOC agrees that Title VII so limits

damages and consents to the motion.
EEOC’s

recovery

will

be

limited

(Doc. 101.)
to

$50,000

Therefore,
($20,000

in

compensatory damages and $30,000 in punitive damages), and the
alternative motion for new trial is moot.
B.

Mr. Gill’s Award of Back Pay

On January 28, 2013, Mr. Gill presented evidence to the
court on his claim for back pay. 1

Section 706(g)(1) of Title VII

provides that upon a finding of intentional discrimination, the
district court may order such affirmative or equitable relief,
including back pay, as it deems appropriate.

42 U.S.C. § 2000e-

5(g)(1); Noel v. N.Y. State Office of Mental Health Cent. N.Y.
Psychiatric Ctr., 697 F.3d 209, 213 (2d Cir. 2012).

Back pay is

also available under Title 42, United States Code, section 1981.
Blasic v. Chugach Support Servs., 673 F. Supp. 2d 389, 402 (D.
Md. 2009) (citing Kornegay v. Burlington Indus., Inc., 803 F.2d
787, 788 (4th Cir. 1986)).
The evidence demonstrated, and the court finds, that at the
time of his discharge Mr. Gill earned $2,107.73 per month and
that he suffered 34 months of unemployment from the time of his
termination on June 9, 2008, until his hire by a new employer on
May 2, 2011.

There is no credible evidence that Mr. Gill failed

1

Mr. Gill has withdrawn any request relating to his health benefits.
(Doc. 89.)

3

to

mitigate

credible

his

as

to

damages.
his

Indeed,

testimony

about

employment, which were diligent.
participated

in

the

court

his

finds

efforts

Mr.
to

Gill

obtain

He kept a detailed log of his

efforts

and

further

training

to

improve

his

skills.

Thus, Mr. Gill is entitled to back pay in the amount of

$71,662.82.
C.

Mr. Gill’s Motion for Prejudgment Interest

Mr. Gill also seeks an award of prejudgment interest on his
back pay damages.

(Doc. 92.)

The award of prejudgment interest

lies within the discretion of the district court, keeping in
mind the “make-whole” policy of Title VII.

Albemarle Paper Co.

v. Moody, 422 U.S. 405, 421 (1975); Maksymchuk v. Frank, 987
F.2d 1072, 1077 (4th Cir. 1993).

The objective is to put the

plaintiff in a position as near as possible to where he would
have been had the discrimination not occurred.
F.2d at 1077.

Maksymchuk, 987

Interest is awarded as compensation for the use

of funds and not as a penalty.

Id.

Here, Mr. Gill requests prejudgment interest at the rate of
eight

percent,

Stat. § 24-1.

as

provided

by

North

Carolina

law,

N.C.

Gen.

The court is not bound to use state law, but it

may do so in its discretion.

E.E.O.C. v. Liggett & Myers, Inc.,

690 F.2d 1072, 1074 (4th Cir. 1982) (affirming district court’s
use of North Carolina state interest rate).
have

prejudgment

interest

compounded
4

Mr. Gill seeks to

annually

to

reflect

the

economic

reality

accumulated

that

interest

he

on

would

his

have

been

earnings.

able

(Doc.

to

93

accrue

at

2-3.)

Whether to award compound interest is also within the discretion
of

the

court.

Am.

Nat.

Fire

Ins.

Co.

ex

rel.

Tabacalera

Contreras Cigar Co. v. Yellow Freight Sys., Inc., 325 F.3d 924,
938 (7th Cir. 2003) (noting that “compound interest ought to be
the norm in federal matters” but that “[a]s a general rule, the
decision

whether

to

award

compound

or

simple

prejudgment

interest is left to the discretion of the trial court”); Hylind
v. Xerox Corp., 749 F. Supp. 2d 340, 351 (D. Md. 2010) (awarding
compounded prejudgment interest), aff’d in part and rev’d in
part on other grounds, 481 F. App’x 819 (2012).

Compounded

interest reflects the reality of the time value of money and
reasonably furthers the goal of placing Mr. Gill in the position
he

otherwise

would

discrimination.
Based
interest

on

have

been

absent

Widenhouse’s

unlawful

Hyland, 749 F. Supp. 2d at 351.
the

should

be

record,

the

awarded

court

on

Mr.

finds

that

prejudgment

Gill’s

back

pay

award.

Widenhouse was aware of the exact amount of Mr. Gill’s monthly
earnings at the time it fired him; the amount was certain and
thus easily calculable.
Gill’s case.

There was also a lengthy delay in Mr.

Mr. Gill was terminated in June of 2008, yet the

case did not get to trial and verdict until January 2013, over
four and one-half years later.

Of course, this delay was caused
5

in part by Mr. Gill’s decision to wait until June 22, 2011, to
file suit.

On the other hand, he did file his EEOC charge

approximately two months after his terminations, and he has lost
the time value of his earnings.
The court also finds that the North Carolina interest rate
of eight percent, which has been adopted by the North Carolina
General Assembly as a fair rate, is appropriate.

In light of

the “make-whole” principle of Title VII, the court will also
grant

Mr.

Gill’s

request

to

compound

the

interest

annually.

This is a larger remedy than simple interest, but it is less
than the monthly compounding that would have been available had
Mr. Gill not been terminated.
interest to be $16,846.97.

Mr. Gill calculates prejudgment

While Widenhouse objects to entry of

prejudgment interest, it does not challenge the calculation of
the

amount.

Therefore,

the

court

will

award

prejudgment

interest, compounded annually, in the requested total amount of
$16,847.15,

for

a

total

back

pay

award

(with

principal)

of

$88,509.79.
D.

Mr. Gill’s Motion for Prejudgment Attachment

Mr. Gill moves for an order of attachment and/or seizure of
the property and assets of Widenhouse pursuant to Federal Rule
of Civil Procedure 64 and N.C. Gen. Stat. § 1-440.1.

2

(Doc. 90.) 2

Mr. Gill has limited his motion to the assets of Widenhouse and not
those of any of its affiliates. (Doc. 102 at 1.)

6

Mr. Gill contends that the evidence at trial demonstrates
that

Widenhouse

is

dissipating

its

assets

in

an

effort

to

prevent Mr. Gill from being able to collect on his judgment in
this

case.

Specifically,

he

points

to

the

fact

that

Widenhouse’s federal tax returns for tax years 2008 through 2011
show gross receipts of $3,283,843, $2,892,961, $2,643,325, and
$3,246,838, respectively.

(Doc. 91 at 3.)

However, at trial

Mr. Robert C. Barbour, an officer and part-owner of Widenhouse,
testified that while as of December 31, 2011, the company had
cash on hand of $556,301 (with total assets of $1,105,551), by
December 31, 2012, the company has only a $38,000 cash balance.
Mr. Barbour testified that the company sustained a historic loss
because

of

trucks,

necessitating

loan.

Mr.

fuel

costs

Barbour

and

the

need

that

the

company

also

to

testified

update
apply

that

its

for

the

a

fleet

of

$100,000

company

was

attempting to sell some of its trucks and intended to appeal the
entry of the judgment against it in this case.
Widenhouse’s

response

relies

on

an

affidavit

of

Mr.

Barbour, which asserts that the company’s total assets for the
year ending December 31, 2012, are projected to be approximately
$1,004,000. 3

(Doc.

100

at

4.)

This

is

in

line

with

the

company’s reported assets for the prior four years ($1,281,489
in 2008; $1,121,129 in 2009; $1,111,367 in 2010; and $1,105,551
3

The company’s 2012 tax returns are not yet finalized.

7

in 2011).
company

(Id. at 3.)

did

replaced

sell

with

some

newer

Mr. Barbour also points out that the
of

model

its

older

trucks.

trucks,
(Id.)

but

were

Barbour

Mr.

those

also

revised his trial estimate of cash on hand at year-end 2012, now
stating it was $99,920. (Id. at Ex. 1 ¶ 11.)

Therefore, he

contends, the company sold some trucks to update its fleet, but
otherwise has a total asset value substantially comparable to
that of the prior four years.
Federal Rule of Civil Procedure 64 provides for the seizure
of property as provided by state law.

Prestige Wine & Spirits,

Inc. v. Martel & Co., 680 F. Supp. 743, 745 (D. Md. 1988).
applicable
seq.,

North

provides

relevant

here

Carolina
for

is

law,

N.C.

attachment

the

in

provision

for

Gen.

Stat.

several

§

1-440.1

situations,

attachment

of

a

The
et
but

domestic

corporation, which, with intent to defraud its creditors:
a.

Has removed, or is about to remove, property
from this State, or

b.

Has assigned, disposed of, or secreted, or is
about to assign, dispose of, or secrete,
property.

Id. § 1-440.3(5).
On this record, Mr. Gill has not met his burden.

To be

sure, there is no evidence that Widenhouse has moved assets from
the

state.

compared

to

While
prior

the

company’s

years,

its

cash

total

8

has

asset

been
value

reduced
is

as

nearly

constant.

The company’s explanation that the cash was used in

substantial part to purchase newer trucks – a move Mr. Gill
characterizes as “suspicious” in light of the company’s $167,222
operating loss that year (Doc. 102 at 3) – is not evidence of
any improper assignment or disposition of property, but rather
is consistent with an intent to continue ongoing operations.
The attachment remedy must be strictly construed.

Connolly

v. Sharpe, 270 S.E.2d 564, 566 (N.C. Ct. App. 1980).

Although

precise compliance with the statute is not required, id., at
this stage Mr. Gill’s concern that Defendant is moving assets to
defraud

creditors

Accordingly,

his

is

an

motion

unsupported
for

suspicion.

prejudgment

attachment

See
will

id.
be

denied.
E.

EEOC’s Request for Injunctive Relief

EEOC’s complaint includes a request for injunctive relief,
and it now moves pursuant to Section 706(g)(1) of Title VII, as
amended, 42 U.S.C. '2000e-5(g)(1), for a variety of remedies for
the conduct demonstrated at trial.
Section 706(g)(1) of Title VII provides:
If
the
court
finds
that
the
respondent
has
intentionally engaged in or is intentionally engaging
in an unlawful employment practice charged in the
complaint, the court may enjoin the respondent from
engaging in such unlawful employment practice, and
order such affirmative action as may be appropriate .
. . or any other equitable relief as the court deems
appropriate.

9

42 U.S.C. § 2000e-5(g)(1).

The court has “not merely the power

but the duty to render a decree which will so far as possible
eliminate the discriminatory effects of the past as well as bar
like

discrimination

in

the

future.”

Moody, 422 U.S. 405, 418 (1975).

Albemarle

Paper

Co.

v.

The court has the authority to

grant corrective relief even where the unlawful practices have
been discontinued and should especially exercise its power where
the

record

fails

to

unlawful practices.

demonstrate

a

total

cessation

of

the

United States v. Gregory, 871 F.2d 1239,

1246 (4th Cir. 1989).
In the present case, the defense was predicated on a denial
of

wrongdoing.

contest

This

between

presented

Plaintiffs’

a

straightforward

witnesses

and

credibility
Widenhouse’s

employees.

Obviously, the jury was persuaded by Plaintiffs’

witnesses.

The evidence upon which the jury necessarily relied

in

rendering

its

verdicts

of

liability

demonstrated

that

Widenhouse’s discriminatory practices continued after Mr. Gill
filed his EEOC charge in 2008.

In fact, Mr. Floyd testified

that racial slurs and wrongful conduct continued through the end
of

his

employment

in

February

2010.

One

of

the

alleged

harassers was Widenhouse’s General Manager, Mr. Buddy Waller.
Mr. Waller remained employed at Widenhouse through the time of
trial and was never disciplined.

Another alleged harasser was

the dispatcher, Ms. Kim Griffin, and there is no evidence she
10

was ever disciplined, either (perhaps because she was the person
to

whom

complaints

revealed

that

were

Widenhouse

allegedly
had

no

made).
written

The
or

evidence

formalized

also
anti-

discrimination policy or reporting procedures.
Based on the evidence at trial and the complete record, the
court finds injunctive relief appropriate.
court

will,

in

its

Judgment,

In particular, the

enjoin

further

illegal

discriminatory conduct, require Widenhouse to remove references
of the events leading to the finding of unlawful conduct from
the files of Messrs. Gill and Floyd, require Widenhouse to adopt
and

post

a

formal

anti-discrimination

policy

with

reasonable

reporting provisions, impose reasonable training and reporting
requirements on Widenhouse as to its corrective efforts, require
Widenhouse to record all instances of complaints of unlawful
racial behavior alleged to violate Title VII and/or Defendant’s
anti-discrimination

policy,

and

permit

EEOC

to

monitor

compliance through reasonable inspections of appropriate records
of the Defendant.

These provisions are reasonably tailored to

remedy the unlawful conduct in this case.

The court finds,

based on the record, that the injunction should be in place for
a period of three years to ensure compliance.
II. CONCLUSION
Therefore,

based

on

the

jury’s

determinations set forth above,
11

verdict

and

the

court’s

IT

IS

ORDERED

that

EEOC

is

entitled

to

recover

from

Widenhouse the amount of Fifty Thousand dollars ($50,000) in
compensatory and punitive damages.
IT IS FURTHER ORDERED that Mr. Gill is entitled to recover
from Widenhouse the amount of One Hundred Ninety-Three Thousand
Five Hundred Nine and 79/100 dollars ($193,509.79), this sum
being comprised

of

One

Hundred

and

Five

Thousand

and

00/100

dollars ($105,000) in compensatory and punitive damages, plus
Seventy-One Thousand Six Hundred Sixty-Two and 82/100 dollars
($71,662.82) in back pay, plus compounded prejudgment interest
on the back pay award in the amount of Sixteen Thousand Eight
Hundred Forty-Six and 97/100 dollars ($16,846.97).
IT

IS

FURTHER

ORDERED

that

Plaintiffs

be

awarded

their

costs of this action.
The parties are advised that any application for attorneys’
fees must comply with Local Rule 54.2.
An appropriate Judgment will issue separately.

/s/
Thomas D. Schroeder
United States District Judge
February 22, 2013

12