Crump v. Tcoombs & Associates, LLC, trading as TCAssociates et al
Filing
337
OPINION AND ORDER: The Court ORDERS that Plaintiff be awarded back pay damages in the amount of $40,842.42 and pre-judgment interest thereon at a rate of six percent (6%) to be compounded annually. As set forth above, pre-judgment interest is to be calculated on each separate installment of Plaintiff's salary, less interim earnings, from the date it would have been due to the date of this Opinion and Order. The Court further ORDERS an award of post-judgment interest beginning on t he date of this Opinion and Order. Having resolved Plaintiff's request for equitable damages, and as the jury verdict in this matter has already been entered, ECF No. 314, the Clerk is REQUESTED to enter judgment on the jury's verdict in favor of Plaintiff. Copy of Opinion and Order provided to all counsel of record. Signed by District Judge Mark S. Davis on 9/8/2016. (bgra)
FLED
UNITED
STATES
DISTRICT
COURT
SEP-8 2016
EASTERN DISTRICT OF VIRGINIA
Norfolk Division
CLEHK, US DiSTRlCT COURT
NORFOLK, VA
SUMMER CRUMP,
Plaintiff,
Civil Action No.
V.
UNITED
STATES DEPT.
2:13cv707
OF NAVY,
by and through RAY MABUS,
SECRETARY OF THE DEPT.
OF NAVY,
Defendant.
OPINION AND
Plaintiff,
Summer
Crump
ORDER
("Plaintiff"
or
"Crump"),
is
a
hearing-impaired former employee of the United States Department
of Navy ("the Navy").^
alleging
that
the
Plaintiff brought suit against the Navy,
Navy
violated
the
Rehabilitation
Act
by
failing to reasonably accommodate her in her work as a physician
assistant
at
the
Navy's
("Sewells Point Clinic").^
jury returned a
Sewells
Point
Branch
Medical
Clinic
Following a two-week jury trial,
verdict in Plaintiff's
favor,
finding
that
the
the
^ The Court notes that Plaintiff initially filed her complaint against
the Navy and third-party contractors, TCoombs & Associates, LLC and
TCMP Health Services, LLC {collectively "TCA" or "TCMP"), alleging
that they were her joint employers.
The Court granted summary
judgment on the joint employer issue, finding that both the Navy and
TCA were joint employers.
However, on the morning of trial, codefendants/ j oint employers TCA settled with Plaintiff, leaving the
Navy as the sole defendant at trial.
Minutes of Proceedings, ECF No.
304; Stipulation of Dismissal, ECF No. 318.
^ Plaintiff also alleged a claim of constructive discharge against the
Navy.
However,
the Court granted the Navy's Motion for Summary
Judgment on such claim, and the constructive discharge claim against
the Navy was dismissed.
Op. & Order, ECF No. 183.
Navy failed to provide Plaintiff a reasonable accommodation,
but
awarded
ECF
No.
Plaintiff
314.
The
Plaintiff's
pay,
the
no
only
request
front pay,
on
parties
matter
for
remaining
equitable
Verdict
for
relief
in
Form,
consideration
the
form
and pre- and post-judgment interest.
conclusion
evidence
compensatory damages.
of
have
the
jury
Plaintiff's
trial,
request
submitted
the
for
Court
post-trial
back
Following
heard
equitable
of
is
additional
relief
briefs.
and
the
Therefore,
Plaintiff's request for equitable relief is ripe for decision.
I. FACTUAL BACKGROUND^
Plaintiff
hearing
suffers
loss,
from
and
has
approximately fifteen
bilateral
utilized
years.
See Op.
183; Jury Trial Tr. Excerpt Vol.
and
19,
2016,
ECF
No.
Trial Tr.
Excerpt Vol.
19,
ECF No.
2016,
After
obtaining
licensed
assistant
335
since
she
I,
cochlear
[hereinafter
Crump Test.
implants
for
9-10,
& Order,
LeMay Test.
sensorineural
No..
ECF
7:11-19,
"LeMay
Feb. 17
Test."];
185:23-186:4,
Feb.
Jury
17 and
[hereinafter "Feb. 19 Crump Trial Test."].
such
physician
335
I,
profound
cochlear
implants.
assistant
and
has
received
her
Masters
Virginia Medical School in 2007.
Plaintiff
worked
as
Degree
a
became
a
physician
from
Eastern
See Op. & Order at 10; Feb. 19
Crump Trial Test, at 190:1-3, 193:9-23.
^ To the extent that the parties do not agree upon or stipulate to the
following facts,
evidence,
the Court finds such facts by a preponderance of the
unless otherwise noted.
On September 14,
2008,
the Navy entered into a
five-year
contract with third-party contractors, TCoombs & Associates,
and TCMP Health Services,
provide
physician
Contract
2013
extenders
{N62645-08-D-5008) ,
and,
Services
LLC
as
of
September
contracted
Point Clinic.
to
LLC
(collectively "TCA" or "TCMP"},
services
to
AX-l/
TCA's
4,
2013,
provide
Sewells
contract
in
Educational
extenders
at 93:6-21;
Clinic.
lapsed
Chesapeake
physician
Crump Damages Test,
Point
to
to
Sewells
Contract N62645-
09-D-5021-0025, Chesapeake Educational Services, PX-306.
TCA hired Plaintiff to provide physician extender services,®
under its contract with the Navy,
2010."
Letter from TCMP Offering Employment, AX-99;
Crump Trial Test,
19,
2010).
Clinic,
hour.
beginning "on or about June 3,
at 195:11-196:23
When
Plaintiff
Feb.
Tr.
Excerpt,
No.
333
Offering
a
19 Crump Trial Test,
Crump Test,,
[hereinafter
Employment,
(credentialing concluded May
began
she worked forty hours
working
at
Sewells
Point
week and received $51.00
at 198:24-199:3;
3:20-4:2,
"Crump Damages
AX-99.
cf. Feb. 19
Feb.
26
Test."];
Plaintiff
was
Bench Trial
and 29,
Letter
also
per
2016,
from
ECF
TCMP
projected
to
'' References to agreed trial exhibits are designated as "AX" followed
by the
exhibit
number
Plaintiff's exhibits are
are designated as "DX."
(i.e.
AX-1).
designated as
Similarly,
references
to
"FX" and the Navy's exhibits
® A "physician extender" is defined by the Contract and relevant Task
Orders to include a physician assistant.
Order 68,
5, AX-6.
Task Order 25, 8, AX-5; Task
receive
an
annual
employment,
raise
equaling
Crump Damages Test,
an
in
September
additional
at 3:20-4:2.
of
one
each
dollar
year
and
of
two
her
cents.
Plaintiff received such raise
in September 2010, and her pay was increased to $52.02 per hour.
Id.
at
64:16-20.
working at
life
Plaintiff
Sewells
insurance,
benefits,"
id.
Point
testified
Clinic,
short-term
at
she
that,
received
disability .
3:20-4:2,
and
Plaintiff's insurance benefits,
id.
that
at
while
she
"dental,
.
.
vision,
[and]
TCA
401(k)
contributed
74:23-75:4.®
was
to
Plaintiff
also testified during the jury trial that she received paid time
off,
sick leave,
uniform
a continuing medical education allowance,
allowance.
Plaintiff
Feb.
19
worked at Sewells
Crump
Point
Trial
Test,
Clinic until
cochlear implant revision surgery on April 26,
Tr.
Excerpt,
Crump Test.,
334
[hereinafter "Feb.
left work at Sewells
6:4-6,
Feb.
surgery,
for
Jury Trial
2016,
ECF No.
At the time she
Plaintiff was working
forty
Crump Damages Test,
While out of work for her cochlear implant revision
Plaintiff
Medical Leave Act
® Plaintiff's
201:13-22.
l e f t work
2011.
22 and 23,
hours a week and receiving $52.02 per hour.
at 4:3-11.
she
22 Crump Trial Test."].
Point Clinic,
at
and a
was
on
("FMLA").
receipt
of
unpaid
leave
under
the
Family
and
at 83:22-84:2.
benefits,
in addition
to her
salary,
is
disputed and the Court does not make a finding regarding Plaintiff's
receipt of benefits at this juncture.
The Court will address
Plaintiff's receipt of benefits below.
A. Plaintiff's Accommodation Recjuests
Plaintiff's
expected,
recovery
surgery
took
longer
than
but she was cleared to return to work with no medical
restrictions on July 20,
Crump Trial
AX-8.
from
Test,
at
However,
capabilities
2011.
LeMay Test,
130:17-131:3;
as
of
had not yet
July
at 44:7-15; Feb.
RTW Note
2011,
returned.
(TCA)
Plaintiff's
Dr.
22
from LeMay,
full
hearing
LeMay explained that,
while Plaintiff was able to return to work without restrictions.
Plaintiff
returning
required
to work"
an
at
accommodation
Sewells
Point
to
be
Clinic,
"successful
including
in
reduced
noise levels and use of a video relay service for communication
on the telephone.
from LeMay
LeMay Test,
at 20:14-24:7,
(Clinical Audiologist)
44:4-45:18; Letter
regarding Crump Diagnosis, AX-
24.
Plaintiff began seeking such accommodation and to return to
work in June 2011.'
Feb. 22 Crump Trial Test, at 10:20-11:15.
Plaintiff met with TCA employee Angela Green on June
and
'
requested
Plaintiff
was
several
accommodations
originally scheduled
to
that
would
return
to
27,
allow
work
2011
her
after
to
her
cochlear implant revision surgery in June 2011.
However,
after
reviewing a June 16, 2011 letter from Dr. LeMay discussing Plaintiff's
condition. Letter from Summer Crump's Doctor, Michael LeMay, AX-18,
TCA and the Navy determined that Plaintiff was not able to return to
work and could not
"return to work until
[she was]
able
to return at
full duty."
Email from Green to George, Robles, "re: Re: Summer Crump
- RTW Status Follow-Up," AX-21.
After being informed that she could
not return to work until she was able to return at full duty, and
before the date on which Dr. LeMay cleared her to return to work with
no medical restrictions, Plaintiff began to seek accommodations.
return to work,
telephone
Green,
including use of a video relay phone for making
calls.
"re:
Id.
RE:
at
Summer
11:19-12:15;
Email
from
Crump Accommodations,"
Plaintiff
AX-22.
to
However,
Plaintiff's accommodations request was not approved immediately
and she was not able to return to work as she had planned.
August
1,
approved
2011,
the
Plaintiff's
Navy,
accommodation
of a video relay phone.
Plaintiff.
was delayed,
Commander
requests,
Sarah
including
Neill,
the
use
Email from Marivic Williams to Cynthia
Carpenter on 8/1/11, DX-2.
to
through
On
However,
Such approval was later communicated
installation of
the video relay phone
and Plaintiff understood that she could not return
to work until such accommodation was
in place.
Feb.
22
Crump
Trial Test, at 22:15-23:15; Crump Damages Test, at 216:7-217:15;
Email
from Williams
to
Summer Crump," AX-33;
101
("Previously
accommodations
On
August
Angela
16,
2011,
Plaintiff,
my
we
not
have
allow
was
"[s]ince
to
me
RE:
"re:
to
under
informed
the
wait
to you returning
Green,
"re:
'limitations'
Plaintiff
that
accommodations,
complete prior
to
Green,
Email Badura to Crump,
TCMP would
due
Green
Plaintiff,
until
FTE."
Return of
RE:
Email
RTW," AX-
RTW
without
the
contract.").
by
TCA
government
the
PA
the
employee
approved
installation
is
from Williams
to
"re: RE: Return of PA Summer Crump," 2, AX-33.
Such instruction was reiterated to Plaintiff by her supervisor,
Lieutenant Commander Lina Badura,
in a personal email on August
16,
2011:
"Bottom line,
we need to wait for TCMP to coordinate
with Sorenson and have all
can
coordinate
installation.
with
our
equipment available . . . so
communications
also
about
I
actual
I guess you can't come back until all in place."
Email from Badura to Crump dated 8/16/11,
see
dept[.]
that
Email
Crump," AX-26
from
Williams
to
"re: Sorenson," PX-87;
Green,
"re:
FW:
PA
Summer
("PA Crump cannot return to work until I receive a
medical release from TCMP stating that PA Crump is fit for full
duty.").
Further,
Plaintiff
was
informed
by
Lieutenant
Commander Badura that approval/disapproval for use of particular
software "may take a few months."®
Harris,
Williams,
Trial Test,
"re:
FW:
Ntouch,"
AX-29;
see
Feb.
22
Crump
at 21:15-18.
As demonstrated at
Plaintiff
continued
regarding
her
trial,
to
in October 2011,
her
by
the
the
with
accommodations.
requests for accommodation on a
to
throughout
communicate
requested
Navy's request,
provided
Email from Green to Jackie
following months
TCA
In
and
the
response
Navy
to
the
Plaintiff again submitted her
request for accommodation form,
Navy,
and
she
submitted
a
proposed
meeting agenda regarding her requests for accommodation.
Email
from
Crump
Williams,
Accommodation
"re:
Request,
FW:
Summer
Completed
Crump,
Medical
Attachments:
Support
Information,
® For further discussion, see this Court's Summary Judgment Opinion and
Order.
Op.
& Order,
15-23, ECF No.
183.
VRS
Interpreter,
Request
for
Reasonable
Accommodation
Authorization to Release Medical Information,"
Robles to Carpenter,
"re:
Information,"
Plaintiff
had not
to work at
Plaintiff
Email from
FW: Summer Crump; Attachments: Request
for Reasonable Accommodation Form,
Medical
AX-48;
Form,
AX-51.
Authorization
However,
for
Release
as of February 22,
of
2012,
received an accommodation and had not returned
Sewells
Point
{through
her
Clinic.
Thus,
attorney)
sent
on
a
February 22,
letter
to
2012,
the
Navy,
stating that "if we do not hear from you within ten (10) days of
receipt
of
this
accommodation
Carpenter
Summer
from
to
dated
Navy
consistent
within
with
On
we
denied."
consider
for
did
employment
on
April
opportunity
receive
as
she
11,
("EEO")
a
-
and
Ms.
response
demanded,
2012,
for
and
Plaintiff
counseling with
Feb. 22 Crump Trial Test, at 38:3-18.
May
detailing
24,
their
2012,
accommodation.
the
response
for accommodation,
to
Navy
sent
Plaintiff
Plaintiff's
offered to
October
a
memorandum,
2011
requests
and such letter included the Navy's offers of
Mem.
from
Navy
to
Crump,
Reasonable Accommodation Request," AX-118.
Navy
request
Accommodation
not
ten-day period
letter,
our
from Sullivan to Neill
Request
Plaintiff
the
her
will
Letter
"re:
PX-165.
initiated equal
the Navy.
be
2/22/12,
Crump,"
the
letter,
(1)
assign another
Status
In such letter,
supporting
assist Plaintiff in making any telephone calls;
8
"Re:
staff
or
member
(2)
of
the
to
provide
the Virginia Relay system or sign language
services
to assist
Plaintiff in performing the essential functions of her position;
or (3) provide and install the Z-150 video phone device, if such
device were approved.
receive
Test,
Id.
at 2.
such letter until June
at
41:6-20.
Plaintiff,
15,
Plaintiff
2012.
was
however,
Feb.
then
22
able
did not
Crump Trial
to
meet
with
Commander Neill, and discuss the Navy's offers of accommodation,
during
an
EEO
mediation
During the EEO mediation.
that
the
sounded
Z-150
like
video
a
Commander
Plaintiff
informed
Plaintiff
know when
return to work.
2012.
would
be
told
regarding
the
Id.
acceptable
accommodation."
Neill
June
19,
at
41:3-5.
Plaintiff
such
device
Id.
was
at
that
and
that
42:2-10.
she
In
would
accommodation and
keep
would
installed and when
she
"it
let
could
Id.
After
June
Plaintiff expressed to Commander Neill
phone
great
response.
on
the
19,
2012
mediation.
Commander
Neill
took
steps to request and install the Z-150 video phone.
On July 2,
2012,
Manager at
Commander Neill
instructed the
the Naval Medical Center -
Communications
Portsmouth to proceed to process the
DSL line required to accommodate installation of the Z-150 video
phone,
and on July 9,
2012,
the Navy's IT and HIPAA compliance
departments approved the Z-150 video phone.
Email from Landis
to Washington,
Email from Taylor
to
Barnes,
"re:
"Re:
IT
N0018311WRNX133,"
Request
for
AX-106;
Utilization
of
Z-150
on
NMED
Domain," AX-112.
video phone.
On August 2,
2012,
the Navy ordered the Z-150
Email from Neill to Taylor,
#79522 been ordered -
Z-150," AX-103.
"re:
FW: CAP Request
The Z-150 video phone was
installed at Sewells Point Clinic as of August 15, 2012.®
from Taylor to Barnes,
"Re:
Email
IT request for utilization of Z-150
on NMED Domain," AX-112.
On July 27,
since
their
June
confirmation
installed
from
AKS
was
Feb.
to
19,
that
and
with TCA.
2012, having heard nothing from Commander Neill
the
formally
included
"re:
the
2012,"
the
Navy's
2,
24,
of
offers
Further,
2012
of
had
her
to
no
been
position
42:11-12;
Reasonable
resignation
received
phone
resigned
at 6:7-8,
AX-107.
her
having
video
Plaintiff
Navy's
May
and
Z-150
Status
communicated
rejected
in
promised
22 Crump Trial Test,
Neill,
Plaintiff
mediation,
functional,
Request dated May 24,
2012,
2012
Letter
Accommodation
on August
Navy
and
accommodation,
as
memorandum
the
9,
to
Plaintiff.
' Lieutenant Commander Badura testified at trial that she and Plaintiff
had discussed the Z-150 video phone and Plaintiff knew that the Navy
was ordering the Z-150 video phone for her and having such device
installed.
Jury Trial Tr. Excerpt Vol. II, Badura Test., 281:6-9,
299:18-300:12, Feb. 23 and 24, 2016, ECF No. 332 [hereinafter "Badura
Test."].
Lieutenant Commander Badura's testimony on this point was
uncontradicted, but the
of such communication.
record is unclear as to the date and context
On cross-examination.
Lieutenant Commander
Badura explained that the last time she spoke to Plaintiff was in
April 2012 during a chance meeting.
Badura Test, at 299:18-300:12.
However, it was not until May 16, 2012, that Commander Neill provided
information regarding the Z-150 video phone, via email, to the group
of Navy employees working on Plaintiff's accommodation requests
(including Lieutenant Commander Badura), after previously completing
some background research on such device.
Email from Taylor to Neill,
"Re: Reasonable Accommodation ISO Hearing Impairment," AX-114.
10
Feb.
22 Crump Trial Test,
"re:
Status
2012,"
of
at 6:9-10;
Reasonable
AX-107.
Letter from AKS to Neill,
Accommodation
Lieutenant
Request
Commander
dated May
Badura,
24,
Plaintiff's
supervisor and the individual responsible for ordering the Z-150
video phone,
or
was not aware that Plaintiff had resigned from TCA,
rejected
the
Navy's
offers
of
accommodation,
before
the
installation and testing of the Z-150 video phone on August 15,
2012.
Jury
282:8,
Feb.
Trial
23
Tr.
and
Excerpt
24,
2016,
Vol.
II,
ECF No.
Badura
332
Test.,
281:21-
[hereinafter
"Badura
Test."] .
B. Plaintiff's Employment Search
While
Clinic,
Test,
she
was
unable
to
return
to
work
at
Plaintiff began to seek work elsewhere.
at
10:25-13:1.
Plaintiff
testified
Sewells
Point
Crump Damages
that
she
began
searching for jobs around September 2011 and applied to thirtyfive
jobs.
Id.
at
8:15-22.
Plaintiff
first
obtained
a
temporary locum tenens position in December 2011 with CompHealth
in the emergency department at the Halifax Regional Hospital in
South Boston, Virginia,
and after she was properly credentialed.
Plaintiff began work for CompHealth on December 22,
at 13:2-14.
CompHealth
Hospital
Id.
After the six-week locum tenens position concluded,
asked
as
2011.
a
Plaintiff
medical
assignment until April
to
continue
provider
2012.
Id.
11
and
at
she
Halifax
remained
After April
2012,
Regional
on
such
Plaintiff
continued to work as-needed as a contractor for CompHealth until
June 2014.
Plaintiff
Id.
at 17:19-18:4.
made
$47.00
While employed with CompHealth,
per hour,
with
the
opportunity
to make
$70.00 per hour for working over 40 hours in a week, and she did
not receive any benefits.
Plaintiff
earned $21,74 9.27
earned $5,922.50
$7,625.75
ECF No.
Id.
at 16:8-12,
from
from CompHealth in 2013;
Navy's Mem.
324; CompHealth 2013 W-2,
During
62:8-11.
in 2012;
Plaintiff
CompHealth
from CompHealth in 2014.
209;
17:25-18:8,
and Plaintiff earned
Final Pretrial Order,
Regarding Back Pay Award,
5,
101,
ECF No.
PX-248.
Plaintiff's
work
with
CompHealth,
Plaintiff
continued her search for better employment closer to her family
in the Hampton Roads area,
recruiters in February,
Job Search Documents,
physician
assistant
submitting her resume and contacting
March,
April,
PX-213.
position
and May 2012.
Plaintiff
Plaintiff was offered a part-time
with
Team
Health
in April
2012,
working in the emergency departments at Maryview Medical Center
in Portsmouth,
Virginia,
Harbor View Health Center in Suffolk,
Virginia, and DePaul Medical Center in Norfolk, Virginia.
Damages Test,
for
Team Health
111:22-112:4;
at
at 18:9-21,
Team
receive
2012.
Feb.
Crump Damages Test,
Health,
any
in July
62:25-64:1.
Plaintiff
benefits.
made
Crump
at
Plaintiff began working
22
Crump
62:18-19.
$53.00
Damages
12
Crump
per
Test,
Trial
Test,
at
While employed
hour
at
and
did
not
18:22-19:25.
Plaintiff remained on the roster for Team Health and took shifts
from
2012
through
2015.
Plaintiff
earned
$2,954.75
from Team
Health in 2012;
Plaintiff did not receive any shifts with Team
Health in 2013;
Plaintiff earned $13,175.00
2014;
at
and,
Team
Mem.
as of May 14,
Health
in
2015.
2015,
from Team Health in
Plaintiff had earned $18,060.45
Final
Pretrial
Regarding Back Pay Award at
5;
Order
at
101;
Team Health 2012
Navy's
W-2,
PX-
245.
During
the
was offered a
working
in
Patient
First
same
time period,
in
February
urgent
care/family
locations
in
practice
the
local
centers
area
Crump
21:11,
Plaintiff
63:16-64:1,
First
on
65:16-23.
a
full-time
basis
resigned from TCA and the Navy.
112:5-11,
Plaintiff
physician assistant position with Patient First,
Richmond or Northern Virginia.
Patient
2012,
While
employed at
Damages
in
Feb.
Patient
or
at
as-needed
Test,
began
July
various
at
20:11-
working
2012,
in
after
for
she
22 Crump Trial Test,
First,
Plaintiff
made
at
a
base rate of $36.00 per hour and received additional pay based
upon
shift.
the
percentage
of
collectible
calls
Crump Damages Test, at 21:12-14,
completed
67:3-70:21.
during
a
Plaintiff
did not initially receive benefits from Patient First, but began
to
receive
benefits
Plaintiff received a
on
October
1,
2012.
raise on August 16,
Id.
2014,
at Patient First increased to $43.00 per hour.
13
at
21:19-22:20.
and her base pay
Id.
at 40:3-12.
Plaintiff
continued to be employed at
date of trial;
however,
Patient
First as
of
the
the parties presented limited evidence
of Plaintiff's interim earnings between May 2015 and the date of
trial.
n.21,
Pl.'s Br.
ECF
100:10.
No.
Supporting Award of
325;
Crump
Damages
earned
$105,382.35
Plaintiff earned $97,687.02
May
First
Test,
14,
in
37:9-39:20,
2015,
2015.
Plaintiff
Final
Patient First 2013 W-2,
from
had
Pretrial
5;
earned
Order
99:18-
in
$13,435.31
at
101;
2013;
and,
at
as
Patient
Navy's
PX-247; Patient First 2014 W-2,
her time at Patient First.
Mem.
PX-244;
PX-322.
"better employment"
during
Feb. 22 Crump Trial Test, at 44:4-7.
Plaintiff received an additional
Crump Damages Test,
Documents,
First
Patient First 2012 W-2,
Plaintiff continued to look for
Bon Secours.
Patient
from Patient First in 2014;
Regarding Back Pay Award at
Search
at
5
Plaintiff earned $35,759.51 from Patient First in 2012;
Plaintiff
of
Back and Front Wages,
PX-213.
job offer in August 2014 with
at 89:23-90:1;
However,
Plaintiff
Plaintiff Job
turned
down
the
Bon Secours job offer because the clinic where Plaintiff would
have worked was not yet functional and Plaintiff was not able to
begin work
Plaintiff
at
such
location.
was
also
offered a
Crump
position
Care Specialists in October 2014,
she
had begun
considering
a
Damages
with
Test,
at
91:3-16.
Pulmonary
Critical
which she turned down because
position with Apollo MD.
91:20-92:10.
14
Id.
at
Plaintiff was
1,
2014;
offered a
however,
due
to
position at Apollo MD on December
a
delay
in
Plaintiff's
credentialing
process, Plaintiff was not able to begin work at Apollo MD until
July 1, 2015.^°
per hour
for
benefits.
MD
Apollo
above,
the
Plaintiff was paid $70.00
her work with Apollo MD and did not
Id.
at
at 41:15-47:14.
at 47:16-22.
as
of
parties
the
receive
Plaintiff continued to be employed
date
of
presented
trial;
limited
however,
evidence
as
of
discussed
Plaintiff's
interim earnings between May 2015 and the date of trial.
37:9-39:20,
Order
Plaintiff earned $60,463.53 in wages from Patient
CompHealth,
at
Patient
Id. at
99:18-100:10.
In total.
First,
any
101.
First
$118,487.77
and
Team
Plaintiff
Health
earned
and CompHealth
from
Patient
2014.
Finally,
earned
$31,4 95.76
in
from
Patient
2012.
$111,304.85
2013.
First,
from January 1,
in
Id.
CompHealth,
and
in
Pretrial
wages
Plaintiff
from
earned
and Team Health in
2 015 to May 14,
First
Final
Team
2015,
Health.
Plaintiff
Id.
at
100-01.
"
Plaintiff argues that,
as part of her back pay award,
she should
receive payment for the additional months that she was not able to
work at Apollo MD due to the Navy's error in Plaintiff's credentialing
paperwork and complications that arose with Plaintiff's credentialing
process at Apollo MD.
PI.' s Br. Supporting Award of Back and Front
Wages, 5-6, ECF No. 325.
Any amount of back pay due based upon such
credentialing error will be addressed below.
15
II.
LEGAL STANDARD
Plaintiff seeks an award of back pay and front pay, as well
as pre-
and post-judgment
interest.
The Court first addresses
the legal standard for each category of damages in that order,
and
then
discusses
the
application
of
such
standards
to
the
facts of the case.
A. Back Pay
Complaints brought under Section 501 of
Act
incorporate
the
"remedies,
the Rehabilitation
procedures
and
rights"
established in Title VII of the Civil Rights Act of 1964.
U.S.C.
60
§ 794a(a)(l);
(D.D.C.
Act
2012)
VII"
Shinseki,
907 F.
Supp.
2d 54,
(noting that "section 501 of the Rehabilitation
incorporates
incorporates
Bonnette v.
29
the
section
remedies
(citing Woodruff v.
107
of
the
and procedures
Peters,
482
ADA,
which
in
established
F,3d 521,
526
turn
in Title
{D.C.
Cir.
2007); 42 U.S.C. § 12117(a))); Op. & Order at 41-42.
As the Navy has been found by the jury to have engaged in
an
unlawful
employment
Rehabilitation
engaging
in
Act,
such
"the
unlawful
practice
[C]ourt
in
may
employment
enjoin
without
back
the
practice,
affirmative action as may be appropriate,
is not limited to,
violation
and
of
the
[Navy]
from
order
which may include,
such
but
reinstatement or hiring of employees, with or
pay . . . or
court deems appropriate."
any
other
42 U.S.C.
16
equitable
relief
§ 2000e-5(g)(1).
as
the
Moreover,
as
a
"general
rule,"
established that
a
be
the
pay,
awarded
Inc.,
Co.
V.
Moody,
Tenet,
Dennis
651
422
applies
139 F.
Supp.
(4th Cir.
421).
405,
in
Supreme
Columbia
Court
2002)
421
Colleton
2003)
732
(1975)),
(E.D.
and
finding
Va.
of
Szedlock v.
2001),
aff'd,
Paper Co. ,
unlawful
persons
discrimination
whole
for
discrimination."
throughout
injuries
Albemarle
(addressing Title VII claim).
victims
employer
of
is
a
Motor Lines,
Motor
Johnson
v.
(explaining
back [ ] pay
employment
made
claimant as
Ford
this
61
P.
422 U.S.
discrimination,
if applied
would not frustrate the central statutory purposes of
eradicating
the
Ctr.,
therefore
cases,
(citing Albemarle
a
Med.
back[ ]pay should be denied only for reasons which,
generally,
has
{citing Albemarle Paper
Rehabilitation Act
2d 725,
"[G]iven
v.
(4th Cir.
U.S.
rule
App'x 88
States
prevailing plaintiff under Title VII should
290 F.3d 639,
general
at
back
United
Inc.,
Co.
v.
and
a
Co.,
discrimination
458
991
footnote
reinstatement
making
past
422
U.S.
only
for
whole,
losses
the discrimination."
EEOC,
and
through
suffered
Paper
753 F.2d 1269,
Shalala,
in
of
economy
at
421
"As part of the process of making
responsible
result
the
U.S.
F.2d
that
are
1278
219,
126,
"the
130
some adverse action taken by the employer");
17
Brady v.
n.l5
(4th
specific
dependent
offending
suffered by
{4th Cir.
231
the
upon
Thurston
1985)
(citing
(1982));
Cir.
Holmes v.
see
1993)
remedies
the
the
proof
of
of
Wal-Mart
Stores
Apr.
E.,
27,
settled
L.P.,
2011)
I:10cv75,
back
discrimination
2011
(unpublished)
that
warranted
No.
pay
causes
where
1842868,
(explaining
is
a
WL
an
loss
appropriate
of
discrimination
that
pay,
causes
and
*8
{E.D.
"it
is
Va.
well-
remedy
where
reinstatement
unlawful
is
termination"
(citations omitted)).
1. Commencement of the Back Pay Period
Once
an
appropriate,
award
of
back
pay
has
been
determined
to
be
the back pay period typically commences on the date
that the unlawful employment practice takes place.
See McKennon
V.
(1995)
Nashville
beginning
should
point
be
unlawful
Banner
the
calculation
discharge
discovered.");
F.2d 951,
in
Pub.
954
Co.,
trial
of
to
(4th Cir.
Sch.
1981)
U.S.
court's
back[
the
Edwards v.
513
from
the
Bd.
of
362
formulation
]pay
date
352,
new
the
of
a
date
("The
remedy
of
the
information
was
City of Norton,
Va.,
658
("Under the Labor Act the back pay
period for an unlawfully terminated employee commences with the
date of discharge and continues until the employer makes a valid
offer of
reinstatement."
Tobacco Co.,
a
(citations
535 F.2d 257,
269
omitted));
(4th Cir.
1976)
Patterson v.
Am.
(explaining that
back pay award should compensate the victim of discrimination
and
"[t]his
may
be
accomplished
by
allowing
back
pay
for
a
period commencing at the time the employee was unlawfully denied
a position until the date of judgment,
18
subject to the applicable
statute of limitations"
(citations omitted));
Fleet
F.3d
St.,
Ltd.,
148
plaintiff who has proven a
is,
as a general matter,
discharge
until
Thorne v.
City of
1986)
("Absent
refused
to
the
date
discharge
of
Cir.
1998)
("A
in violation of the ADEA
{citations
802 F.2d 1131,
circumstances,
employee
rights under Title VII,
(2d
judgment."
El Segundo,
an
167-68
entitled to back[ ]pay from the date of
compelling
hire
149,
see also Kirsch v.
in
1136-37
when
violation
omitted));
an
of
(9th Cir.
employer
that
has
employee's
the court should compute the back[ ]pay
award from the date of the discriminatory act until the date of
final judgment."
Where
provide
the
(citations omitted)).
unlawful
reasonable
employment
accommodation,
back pay calculation at
suffer financial
loss
the
after,
courts
point when
and as
employer's failure to accommodate.
F.
Supp.
2d
calculation
1292,
on
1300
the
due
(S.D.
date
disability
leave
to
reasonable
accommodation);
Fla.
that
the
action
the
a
a
a
begin
plaintiff
of,
2007)
Chertoff,
was
failure
F.
the
begins
(starting
plaintiff
to
to
the defendant
See Hudson v.
139
failure
generally
result
defendant's
Szedlock,
is
Supp.
back
473
pay
placed
to
provide
2d at
on
a
734-35
(beginning back pay calculation on the date that the plaintiff
left
her
job
on
medical
leave
because
the
defendant
employer
failed to provide her with a reasonable accommodation); James v.
Frank, 772 F. Supp. 984,
997 {S.D. Ohio 1991)
19
(allowing back pay
for work days where the plaintiff was sent home without pay due
to
the
defendant's
failure
accommodation);
cf.
fact
Fourth
that
judgment
the
suggests
Holmes,
back
that,
pay
2011
like
reversed
hostile
claims
and
provide
WL 1842868,
Circuit
failure-to-accommodate
recover
to
do
at
the
*8
("Thus,
the
district
court's
claims,
entitle
reinstatement
reasonable
environment
work
not
a
a
unless
plaintiff
to
failure
to
the
accommodate causes a loss of pay or discharge.").
Generally,
discrete
trial,
where
an
discriminatory
as
opposed
to
unlawful
act,
a
as
employment
the
Court
practice
found
is
during
a
this
continuing discriminatory practice,a
plaintiff may not recover damages caused by such unlawful act if
such act
cannot
plaintiff
may not
unexhausted
evidence
Liberty
also
or
of
Mut.
recover
such
conduct
Ins.
Co.,
that
accommodate]
conduct
a
basis
effects
shed
the basis
damages
time-barred,
(explaining
provide
serve as
even
for
553
F.3d
outside
the
the
a
unlawful
121,
142
of
of
conduct
a
is
introduce
See
Tobin
(1st
Mutual's
limitations
i.e.
may
purposes.
evidence
impact
liability,
plaintiff
Liberty
the
for damages,
on
if
other
"[a]Ithough
light
if
for
Cir.
2009)
[failure
period
v.
does
to
not
such conduct and its
Liberty
Mutual's
later
The Court has already determined, both at the summary judgment stage
and at
trial,
that
the
failure
not a continuing violation.
Rule 50 Motion, 42:13-43:20,
Op.
to
accommodate
claim
& Order at 71-72;
February 25 and 26,
20
in
this
Jury Tr.
ECF No. 330.
case
is
Excerpt,
refusals
to
Corp.
Morgan,
Inc.
V.
V.
Mass.
269-70
courts
accommodate
that
arose
180-
or
charge
U.S.
2004))).
limited an
as
a
result
300-day period
of
101,
{citing
113;
Nat'l
Ocean
Comm'n Against Discrimination,
(Mass.
have
536
Tobin."
For
example,
award
of
of
in ADA
that
649
cases"
place
in which an ADA plaintiff
discrimination
Inc.,
Cranberries,
damages
took
with
the
EEOC
in
bring his or her claim in federal court.
Indus.,
Spray
F.3d
374,
385
(5th
Passenger
441 808 N.E.2d 257,
equitable
conduct
R.R.
several
to
damages
within
must
order
to
file
2011)
a
properly
See McClain v.
Cir.
the
Lufkin
("We
omit
discussion of the finer details of the back pay award except to
note that damages commence on March 6,
McClain
for
filed
his
continuing violations
awarded
for
violations
charge is filed."
V.
EEOC claim.
Title VII
that
occurred
Inc.,
or 300 days before
provides
like harassment,
(citing 42 U.S.C.
Joe's Stone Crabs,
1994,
300
that,
damages may only be
days
before
§ 2000e-5 (e) (1)));
296 F.3d 1265,
except
1276
an
EEOC
E.E.O.C.
(11th Cir.
2002)
The Court views cases addressing violations of
the ADA and
accompanying damages to be analogous to the present matter, because
the legal standards used to determine whether the Rehabilitation Act
has been violated and any resulting damages mirror the legal standards
for determining a violation and any resulting damages under the ADA.
See 29 U.S.C. § 791(f) ("The standards used to determine whether this
section has been violated in a
complaint alleging nonaffirmative
action employment discrimination under this section shall be the
standards applied under [T]itle I of the Americans with Disabilities
Act of 1990 (42 U.S.C. 12111 et seq.) and the provisions of sections
501 through 504, and 510, of the Americans with Disabilities Act of
1990
(42
U.S.C.
12201-12204
and
12210),
as
such
employment."); see also 29 C.F.R. § 1614.203(b).
21
sections
relate
to
(vacating award of damages for harm that took place outside of
the 300-day time period in which the plaintiff was required to
file
an
EEOC discrimination
charge) ;
cf.
Mems
v.
Dep't of Fire & Safety Servs.,
2003)
{affirming limitation of damages to damages which arose as
result
of
unlawful
acts
occurring
within
784
St.
Paul,
a
327 F.3d 771,
City of
the
{8th Cir.
one-year
limitations period in which the plaintiff was required to file a
charge
of
discrimination
Rehabilitation
Act
with
cases,
the
courts
EEOC).
have
Similarly,
limited
the
award
in
of
damages to damages that were caused by conduct that took place
during
the
45-day
period
within
which
a
Rehabilitation
Act
plaintiff is required to seek EEO counseling.
See Anderson v.
Richardson,
2001)
145 P.
Supp.
2d 1139,
1146
(D.N.D.
(awarding
back pay only for Rehabilitation Act claims which were properly
exhausted);
*6
(N.D.
cf.
Sutton v.
111. Mar.
22,
Potter,
2004)
No.
02cv2702,
(unpublished)
2004 WL 603477,
(finding that the 45-
day limitations period for certain discrete acts was tolled, but
limiting
the
plaintiff's
plaintiff's
back
pay
calculation
limitation period began).
limitations period,
back
pay
on
award
the
and
date
beginning
that
the
the
45-day
Even if a plaintiff is not bound by a
some courts have exercised their discretion
to limit a plaintiff's damages to those damages which arose as a
result
of
violations
that
occurred
applicable statutory limitations period.
22
within
the
See E.E.0.C.
otherwise
v.
Minn.
Dep't
of
Corr.,
aff'd in part,
300-day
702
F.
Supp.
64 8 F.3d 910
time
period
2d 1082,
{8th Cir.
before
discrimination with the EEOC,
by
the
ADEA's
300-day
Rehabilitation
Act
unlawful conduct,
such conduct
if
2011)
{D.
Minn.
2010),
(limiting damages to
plaintiff
filed
charge
of
even though EEOC as plaintiff was
not subject to that statute of
individual had filed suit,
1091
limitations,
because
" [i]f
that
her damages would have been limited
statute
plaintiff
of
limitations").
suffers
loss
as
Thus,
a
if
result
a
of
such plaintiff cannot recover damages based on
it
takes
place
before
the
45-day
limitations
period begins.
2. Duty to Mitigate
"When the employee fulfills the initial burden of producing
evidence
shifts
establishing
to
the
reasonably
an
entitlement
employer
diligent,
to
and
prove
that
a
comparable employment existed."
984
F.
Supp.
Freight
494
U.S.
386,
Sys.,
820
389
Inc. ,
that plaintiff,
to
be
a
Md.
F.2d
that
back
the
reasonable
Ford v.
1997)
402,
"Because
the
employee
chance
burden
was
of
Rigidply Rafters,
(7th
failure
Cir.
not
finding
(citing Donnelly v.
411
the
pay,
1989),
Inc.,
Yellow
aff'd,
to mitigate
is an
defendant bears the burden of proof to show
victim of unlawful discrimination,
'reasonably
employment
874
(1990)).
affirmative defense,
(D.
to
diligent
in
substantially equivalent
23
seeking
to
that
and
has failed
accepting
new
from which she was
discharged.'"
753
Szedlock,
F.2d at
Martin v.
1273)
139 F.
(citing
Cavalier
Hotel
Supp.
2d at 734
Ford Motor
Corp..
48
Co.,
F.3d
{quoting Brady,
458
1343,
U.S.
at
1358
232);
(4th
Cir.
1995)).
A
Title
VII
plaintiff's
duty
to
mitigate,
Rehabilitation Act plaintiff's duty to mitigate,
and
thus
is described at
42 U.S.C § 2000e-5(g)(1), which provides in pertinent part,
"[i]nterim
earnings
or
amounts
earnable
a
with
that
reasonable
diligence by the person or persons discriminated against shall
operate
to
(emphasis
ancient
reduce
the
added).
"This
principle
of
reasonable
diligence
Ford
Co.,
Motor
back
458
duty
law,
in
pay
otherwise
[to
mitigate],
requires
the
finding
other
at
U.S.
allowable."
rooted
claimant
(footnote
231
Id.
suitable
in
to
an
use
employment."
omitted).
Several
courts have recognized that a defendant employer may demonstrate
that
a
plaintiff
"'establishing
(1)
employee
not
did
Broadnax v.
E.E.O.C.
{7th Cir.
Supp.
1997)
2d at
requires
failed
the
1297
V.
to
mitigate
that suitable work existed,
make
reasonable
City of New Haven,
(quoting Dailey v.
1997));
has
efforts
415 F.3d 265,
Societe Generale,
(citations
("Generally,
defendant
to
prove
24
Inc.,
omitted);
the
and
to
(2)
that the
it.'"
{2d Cir.
268
2005)
456
(2d Cir.
108 F.3d 1569,
see
by
obtain
108 F.3d 451,
Ilona of Hungary,
(same)
damages
Hudson,
1581
473
F.
burden regarding mitigation
that
substantially equivalent
work was available and that the employee did not use reasonable
diligence
Newport
(E.D.
to
News
Va.
obtain
it."
(citations
Redevelopment
1985)
& Hous.
("As noted,
after December 1980,
omitted));
Auth. ,
635
F.
Blizzard
Supp.
23,
v.
26
the evidence here demonstrates that
the plaintiff made little or no effort to
secure employment although positions in her field were evidently
available.").
" [A]
'plaintiff
cannot
remain
idle
after
an
unlawful
discharge and receive back pay for that period where he was not
actively seeking employment.'"
Szedlock,
139 F. Supp.
(quoting
Brady,
753
1273).
"Indeed,
'forfeits
his
right
F.2d
at
to
back
pay
if
he
2d at 734
the
claimant
refuses
substantially equivalent to the one he was denied.'
...
a
job
It is
therefore the general rule that a Title VII claimant's voluntary
refusal
to
seek or accept
substantially equivalent
or to remain in such a job once secured,
loss of back pay."
Brady,
risks or even insures a
753 F.2d at 1273
omitted).
Further,
employment,
she must seek a different job,
paying."
Co. ,
458
Szedlock,
U.S.
at
"if
139
231;
[a]
F.
plaintiff
Supp.
Brady,
753
F.2d at 411).
25
2d at
F.2d
employment,
(internal citations
cannot
comparable
even if i t is lower-
734
at
find
(citing Ford Motor
1274;
Donnelly,
874
3. Conclusion of Back Pay Period
Back pay calculations
entered by a court.
a
typically conclude
See Kirsch,
successful plaintiff is
802
F.2d
circumstances,
.
at
"entitled to back[
.
1136
.
the
(explaining
court
judgment
148 F.3d at 167-68
of discharge until the date of judgment."
Thorne,
when
should
is
(noting that
]pay from the date
(citations omitted));
that
"Absent
compute
compelling
the
back[
]pay
award from the date of the discriminatory act until the date of
final
judgment."
(citations
omitted));
Patterson,
535
F.2d at
269
(explaining that "back pay must be allowed an employee from
the
time
he
is
unlawfully
actually receives
promotion,
employee
a
it,"
and,
denied
absent
a
promotion .
unlawfully
denied
a
position
judgment"); accord Jean-Baptiste v. D.C.,
(D.D.C.
if a
2013) .
However,
"at the
until
of
reinstatement
at
232
date
of
2d 37,
958 F. Supp.
44
back pay calculations may be cut short
and
the
plaintiff
damages by refusing such reasonable offer.
U.S.
he
time the
the
defendant employer demonstrates that it made a
offer
458
. until
the ability to receive such
back pay period should commence
was
.
("Consequently,
an
failed
reasonable
to
mitigate
See Ford Motor Co.,
employer
charged
with
unlawful discrimination often can toll the accrual of back[ ]pay
liability by unconditionally offering
the
sought,
with
and
thereby
minimize damages.");
providing
Brady,
753
26
him
claimant
an
F.2d at 1273
the
job he
opportunity
to
("It is therefore
the general
rule
to
accept
seek
or
that
remain in such a
defendant
properly
Title VII
substantially
accord Edwards,
an award of
employer
mitigate
damages
by
himself
See Kirsch,
148 F.3d at 168
however,
employment,
F.2d at
that
other
or
or
risks or even insures a
658
demonstrates
removed
for
equivalent
954.
back pay may also be
voluntarily
to judgment,
claimant's voluntary refusal
job once secured,
of back pay.");
noted above,
a
a
herself
from
{"The backt
cut
or
if
the
loss
Further,
short
plaintiff
means,
to
if
failed
a
as
a
to
plaintiff
labor market.
]pay period ends prior
if the plaintiff has theretofore retired,
'a discriminatee is not entitled to back pay to the extent
that
he
fails
quotation
to
remain
omitted));
recognized,
however,
earlier
the
if
in
Thorne,
that
plaintiff
the job market,
the
labor
802
the
has
market.'"
F.2d at
backt
1136
(citations
("Our
]pay period may
voluntarily
removed
court
and
has
terminate
herself
from
or rejected the employer's unqualified offer of
reinstatement to the position to which the plaintiff applied."
(internal citations omitted));
the
case
of
a
Title
discharged,
the
claimant
reasonably
be
employment
of
to
substantially
discharged."
Court
duty
VII
cf.
Brady,
claimant
mitigate
diligent
in
equivalent
who
seeking
to
does
not
apply
27
the
F.2d at 1273
has
damages
(citing Ford Motor Co.,
Appeals
753
that
been
requires
("In
unlawfully
that
the
and
accepting
new
from
which he
was
458 U.S.
at 232)).
"constructive
Our
discharge
rule,"
who
which denies back pay to
has
committed
conditions of
651
a
intentional
(4th Cir. 1981)).
of
back
pay
discharged,
general
discrimination
constructive
{citing Spagnuolo v.
statutory
it
Dennis,
Corp.,
he
or
she
641
was
[the Fourth Circuit]
duty
unless
is
290
under
F.3d at
F.2d 1109,
1114
a plaintiff does not sacrifice an award
because
"Instead,
discharge."
Whirlpool
Thus,
simply
"persons who leave an employer
located
mitigate employer damages."
at
Id.
42
not
constructively
simply appl[ies]
U.S.C.
§
2000e-5(g)
(citing Spagnuolo,
the
to
641 F.2d at
1114) .
4. Calculating a Back Pay Award
In calculating a
Court
must
wrongly
determine
Roadway Exp.,
Ford Motor Co.,
make
them,
have
an
discharged
employment contract;
v.
dollar amount
amount
employee
for
that
a
back pay award,
"should
monetarily
whole
it should not provide a
Inc.,
689
458 U.S.
F.2d 481,
at 230
490
only
windfall."
*so far as possible
been
(quoting
were
it
Albemarle
not
Paper
quotation omitted))).
of back pay should be
...
for
his
Cline
1982);
§ 706(g)
the victims of unlawful discrimination whole'
the
under
(4th Cir.
("To this end,
make
the
aims
see
'to
by restoring
to a position where they would
the
Co.,
422
unlawful
U.S.
discrimination.'"
at
421
(internal
"To make the plaintiff whole,
the award
the difference between what
the
employee
would have earned had the wrongful conduct not occurred from the
28
period
of
termination
during that period."
Duke Homes,
at 489).
755
Thus,
to
Ford,
F.2d 599,
a
judgment,
and
984 F. Supp.
606
{7th Cir.
1985);
back
If a
pay
plaintiff takes a
period,
with any earnings deducted from
Hercules,
Philips
Inc.,
Indus.,
689
F.2d
753
631
F.2d at
F.2d 1161,
Inc.,
593
"Indeed, under § 706(g),
pay award should be
run during
the
1275
1168
F.2d
lower paying job
period
paying
Brady,
to
"[t]he
continues
pay award."
Cline,
plaintiff earns during
entitlement
job,
earnings
court should calculate the amount of any back
the back pay period.
the
actual
at 389 {citing Horn v.
pay award and reduce i t by any amount a
during
the
back
employment
a
at
a
pay
lower
subsequent back
(citing Merriweather v.
{5th Cir.
783,
of
787
1980);
(7th
Taylor v.
Cir.
1979)).
the rule is that the amount of the back
'reduced by any earnings acquired during the
interim period regardless of the type of work involved.'"
Taylor v.
Republic Servs.,
Va. 2013)
(citing Brady, 753 F.2d at 1273).
In calculating a
Inc.,
968 F.
back pay award,
plaintiff's base wages or salary.
Barnum & Bailey Combined Shows,
1993)
("Under Title VII
'make
whole'
relief.
a
2d 768,
in addition
See Long v.
may
29
include
the
to
a
Ringling Bros.-
9 F.3d 340,
prevailing plaintiff
This
{E.D.
such as fringe benefits
increases,
Inc.,
801
the Court should include
other kinds of employment compensation,
and reasonably anticipated salary
Supp.
Id.;
343
is
value
(4th Cir.
entitled to
of
fringe
benefits."
769
(citations
F.2d
958,
omitted));
964
(4th
Cir.
Fariss
Lynchburg
Foundry,
("Overwhelming
1985)
v.
judicial
authority recognizes that employers guilty of discrimination are
liable for fringe benefits they would have provided to employees
as
well
as
back
wages
under
the
omitted)); Hylind v. Xerox Corp.,
Md.
2014),
aff'd,
632
F.
App'x
ADEA."
31 F.
114
(internal
Supp.
3d 729,
{4th Cir.
back pay based on plaintiff's "base salary,
quotations
741-42
2015)
[and]
(D.
(awarding
the average of
the salaries she actually received in the preceding four years,
allowing
increases
increases
and
also
Metz
F.3d
V.
1482,
support).
to
reflect
to account
Merrill
1493
"In
Lynch,
n.l3
light
for
victim of discrimination,
which
intentional
Pierce,
Plaintiff
& Smith,
1994)
(listing
VII's
policy
to
salary
growth");
Fenner
Cir.
Title
make
see
Inc.,
39
cases
in
whole
a
the award of back pay should include
not only the straight salary,
well,
expected
inflation and wage
(10th
of
reasonably
but raises and fringe benefits,
would
discrimination."
have
Long
v.
received
Ringling
but
for
as
the
Bros.-Barnum
&
Bailey Combined Shows, 882 F. Supp. 1553, 1561 {D. Md. 1995).
B. Front Pay
Title VII,
and thus the Rehabilitation Act,
an award of front pay,
42 U.S.C.
for
future
as
§ 2000e-5(g)(1),
loss of pay.
also allows for
"other equitable relief," pursuant to
to compensate a
prevailing plaintiff
"Although courts have defined
30
'front
pay'
in numerous
lost
ways,
compensation
reinstatement
or
front
in
lieu of
reinstatement."
Inc.,
928
example,
"[i]n
F.2d
in
suffered by
the
plaintiff
have
an
discretionary.
to
for
and
du
accord Duke v.
Cir.
1991).
is
For
not
viable
such
a
an
the
a
846
1423
(citing
cases
in
1984)).
under
Title
VII
is
No.
Sch.
Bd.
of Brunswick Cty.,
(E.D.
*1
for
(citing Whittlesey v.
(2d Cir.
pay
discrimination,
substitute
Va.
Dec.
23,
2008)
(citing
Courts have denied front pay in cases
offer
of
reinstatement.
Inc., 146 F. App'x 365, 368
("[W]here
once
at
728
front
of
injuries
failed to mitigate his or her damages by
reasonable
reinstatement,
right
E.I,
psychological
as
U.S.
See Hartnett v.
plaintiff has
pay,
pay
F.2d at
of
of
result
742 F.2d 724,
award
Racetrac Petroleum,
back
928
2008 WL 5381350,
(unpxiblished)
a
532
928 F.2d at 1424).
a
(2001);
(4th
because
as
Pollard,
Union Carbide Corp.,
refusing
judgment
Pollard v.
reinstatement
front
accord Duke,
However,
or
ordered
reinstatement."
where a
awarded
continuing hostility between the plaintiff and the
workers,
Duke,
between
846
1423
which
its
3:08CV128,
843,
1413,
or
support);
period
532 U.S.
cases
courts
simply money
the
Uniroyal
employer
is
during
Font de Nemours & Co.,
because of
pay
a
plaintiff
employer
plaintiff
equitable
who
makes
31
Hurley
v.
(11th Cir. 2005)
requests
reinstatement
or
a
faith"
of
rejects
relief
See
"good
the
unless
offer
his
offer
forfeits
refusal
of
his
the
employer's offer was reasonable."
Serv.,
V.
Inc.,
867 F.2d 1290,
Pabst Brewing Co.,
accrual
of
terminated
damages
merely
reinstatement;
refusal .
.
755-57
offer
for
[which]
Md.
for
pay if a
Co.,
F.3d
1456,
1464
front
pay
their
damages
in
to
for
has
945
U.S.
(8th
cases
F.2d
recovery
a
at
Cir.
where
a
870
Supp.
Smith
v.
has
2d 751,
good faith
ends
the
of
the award of
offer."
World
Courts
plaintiff
pay.'"
refusal
Yet,
the
of
(7th Cir.
position
pay.
1994))).
seeking
869,
232;
118
the receipt of a
front
offer
front
800 F.2d 111,
comparable
not
unreasonable
of
127 F.
("The
is
an
*an
reasonably refused
{citing
Ins.
have
Co.,
also
failed
to
front
38
denied
mitigate
substantially
equivalent
See Reneau v.
with reasonable diligence.
Inc. ,
Inc.,
("Ordinarily,
458
by
only
preclude
1989)
discharge
refuses
not necessarily preclude
plaintiff
Ford Motor
is
Graefenhain
(7th Cir.
Hughes STX Corp.,
liability
reinstatement does
1203
employee
it
reinstatement
employer's
the
Econ. Lab.,
2001)
1989)));
discriminatory
will
Xiao-Yue Gu V.
(D.
a
instead,
.
{11th Cir.
F.2d 1198,
because
(quoting McNeil v.
1986)));
870
1296
(citing Stanfield v. Answering
Wayne Griffin & Sons,
{5th
Cir.
1991)
("Front
employment
pay
may
be
denied or reduced when the employee fails to mitigate damages by
seeking other employment."
Bottling Co.,
Ctr.
Area Sch.
(citing Hansard v.
865 F.2d 1461,
Dist.,
133 F.
1470
(5th Cir.
App'x 4,
32
11
Pepsi-Cola Metro.
1989));
(3d Cir.
Caulfield v.
2005)
("When
an
employer
successfully
back[ ]pay award
reduced
and
Further,
a
failure
to an aggrieved employee
beginning
mitigate
proves
at
any
the
time
front[ ]pay
of
the
award
to
will
mitigate,
be
cut
be
off
or
failure
employee's
will
any
to
foreclosed.").
front pay may be denied if such award would result in a
windfall for the plaintiff.
reinstatement,
preferred
front
tempered.");
Fourth Circuit has
as
plaintiff."
pay
may
serve
as
a
it
Taylor,
968
cautioned courts
can
result
in
F.
is the much
Supp.
unfair
or
however,
2d at
to award front
an
{"While
substitute
Because of the potential for windfall,
use must be
sparingly
928 F.2d at 1424
which is clearly an equitable remedy,
remedy,
complement.
See Duke,
803
a
its
("The
pay damages
windfall
for
the
(citing Duke, 928 F.2d at 1424)).
C. Pre- and Post-Judgment Interest
As
explained above,
§ 706(g)
of Title VII,
manifestation
of
"[t]he back[
as amended,
Congress'
intent
]pay award authorized by
42 U.S.C.
to
make
§ 2000e-5(g),
'persons
injuries suffered through past discrimination.'
interest,
of course,
Loeffler v.
Paper Co.,
U.S.
305,
Frank,
422 U.S.
310
is
486
for
Pre[-]judgment
'an element of complete compensation.'"
U.S.
at 421;
(1987)).
whole
is a
549,
558
(1988)
West Virginia v.
(quoting Albemarle
United States,
479
Our Court of Appeals has recognized that
an award of pre-judgment
interest is not mandatory,
awarded in the Court's discretion.
33
See Maksymchuk v.
but may be
Frank,
987
F.2d
(4th
Cir.
Gregory,
818 F.2d 1114,
1118
U.S.
(1987);
1446
1072,
847
(9th
However,
1077
Cir.
the
1984),
Fourth
circumstances
interest.
Domingo v.
that
1993)
(4th Cir.
Circuit
For example,
United
1987),
cert,
New England Fish Co.,
modified,
would
(citing
742
has
F.2d 520
explained
justify
the
States
denied,
that
1984)).
there
of
the Fourth Circuit has
484
727 F.2d 1429,
(9th Cir.
denial
v.
are
few
pre-judgment
found denial of
pre-judgment interest to be appropriate "when the back pay award
is not readily determinable or when the plaintiff fails to raise
the
issue in a
timely or an appropriate manner."
987 F.2d at 1077
901,
909
interest
(citing Scales v. J.C. Bradford & Co.,
(6th Cir.
Donnelly,
1991);
Domingo,
874 F.2d at 411-12
because
Maksymchuk,
727
F.2d at
1446));
"[w]hether or not
an award
of
interest
The
appropriate
494 U.S.
pre-judgment
820
should
is easily
not whether the issue of mitigation was
(citations omitted)), aff'd,
accord
(reversing a denial of pre-judgment
be granted turns upon whether the amount of damages
ascertainable,
925 F.2d
'close'"
(1990).
interest
rate
for
cases
involving federal questions is also an issue left to the Court's
discretion.
F.2d
1017,
See
1031
interest rate,
rate
of
affirmed
Quesinberry
(4th
1993)
Life
(en
Ins.
of
interest,
pre-judgment
34
and
Co.
banc).
as provided by state law,
pre-judgment
awards
Cir.
v.
our
interest
of
N.
The
Am.,
local
987
state
may be an appropriate
Court
at
of
the
Appeals
interest
has
rate
provided by local state law.
(affirming application of
Hylind,
Cir.
a
statutory
Supp.
1998)
Ford,
Virginia's
966,
interest
974
(E.D.
632 F. App'x 114
rate);
Va.
987 F.2d at 1031
statutory interest
31 F. Supp. 3d at 742, aff'd,
Maryland's
960 F.
See Quesinberry,
Cooper
1997),
v.
aff'd,
(applying
Paychex,
Supp.
at 391
Inc.,
163 F.3d 598
(applying Virginia statutory interest rate).
984 F.
rate);
(4th
Contra
(calculating pre-judgment interest at
rate corresponding to the average inflation rate for the back
pay
time
percent
period).
(6%).
Virginia's
Va.
Code Ann.
back pay accrues over time,
bi-weekly
or
monthly
statutory
interest
§ 6.2-302,
rate
is
six
In circumstances where
as with the loss of wages payable in
installments,
a
court
may
award
"pre-
judgment interest on each installment of salary from the date it
would have been due,
Sky Req'l
V.
Council,
Waverly
(W.D.N.C.
less outside earnings."
572
F.2d 988,
Partners,
LLC,
July
2014)
7,
No.
993
(4th Cir.
3:10cv00028,
Supp.
interest,
at 974-75
compounded
a
annually.
(explaining that
(awarding interest,
statutory interest rate);
WL
Land-ofsee Smith
3105366,
Further,
*3
unless
court may award preSee
Cooper,
960
F.
"common sense and the equities
dictate an award of compound interest");
at 742
1978);
2014
(unpublished).
principals of equity counsel otherwise,
judgment
Hyde v.
Hylind,
compounded annually,
cf. Quesinberry,
31 F.
Supp.
3d
at the Maryland
987 F.2d at 1031 n.l3
(noting that its ruling "only directs the post-judgment award of
35
interest
on
interest,
but
it
does
not
require
compound
pre-
plaintiff
that
judgment interest").
With
respect
obtains a
to
post-judgment
money judgment in a
judgment
interest
judgment.
See
at
28
the
U.S.C.
on any money judgment
a
civil case is entitled to post-
statutory
§ 1961(a)
in a
interest,
rate
from
the
date
of
("Interest shall be allowed
civil case
recovered in a
district
court.").
III.
As noted above.
Navy's
pre-
failure
and
argues
fringe
the Navy's
accommodate,
that
interest.
such
benefits,
Pl.'s Br.
Plaintiff
commence on June 27,
With
including back pay,
award
With
respect
should
paid holidays,
and
lost
pay,
back
pay,
back
wages
wages,
due
respect
to
Supp.
to
argues
Award of Back and Front Wages at 2.
that
the
back
pay
period
should
2011 and end on the date of judgment.
front
pay.
Plaintiff
argues
that
she
Id.
should
receive three years of front pay in lieu of reinstatement.
at
the
front
to
include
for
incorrect submission of credentialing information to
Apollo MD.
Further,
Plaintiff seeks equitable damages
post-judgment
Plaintiff
certain
to
DISCUSSION
Id.
29.
In response,
the Navy raises several arguments.
First,
the
Navy asserts that Plaintiff is not entitled to back pay or front
pay because the Navy's unlawful employment action,
36
that is,
the
Navy's
failure
Plaintiff's
to
accommodate
losses.
Second,
Plaintiff,
the
failed to mitigate her damages.
Navy
Third,
if Plaintiff is entitled to back pay,
be
limited
to
damages
did
argues
not
that
cause
Plaintiff
the Navy asserts that,
the back pay period should
suffered between
February
26,
2012
(the
date after which the Navy was found liable by the jury) and July
27,
2012
(the
with TCA),
the
date
Plaintiff
resigned
from
her
position
and Plaintiff should not receive front pay.
Navy argues
because
that
that
Plaintiff's
any award of
full
wages
back pay
received
for
Finally,
should be minimal
interim employment
must be deducted from such award and the Navy is entitled to a
set-off of any back pay wages that Plaintiff received from TCA
in settlement.
regarding
or
front
defense
The Court will first address the Navy's argument
causation before
pay period.
regarding
determining
The Court
mitigation
any applicable
will
and
then address
conclude
by
back pay
the Navy's
determining
any
damages amount due to Plaintiff,
A.
As explained above,
victims
of
employer
is
claimant as a
1278
employment
made
Causation of Harm
"[a]s part of the process of making the
discrimination
responsible
only
for
whole,
losses
result of the discrimination,"
(citing Ford Motor Co.,
458 U.S.
the
offending
suffered
Brady,
at 231 n,15),
753
the
F.2d at
"Back pay
is an appropriate remedy where discrimination causes a
37
by
loss of
pay,
and reinstatement is warranted where discrimination causes
unlawful
termination."
However,
"it
is
claim gives
Id.
Holmes,
clear
rise
to
that
not
claim
a
for
2011
In the present case,
WL
every
1842868,
at
*8.
failure-to-accommodate
back pay
and
reinstatement."
the Navy argues that it did not cause
Plaintiff's damages because the jury found that the Navy failed
to accommodate Plaintiff after February 26,
2012
to when Plaintiff initiated EEO counseling),
at home and
'losing pay'
the
Navy's Mem. Regarding Back Pay Award
The Navy asserts,
workplace
receiving
was
offers
"by
of
Id.
In
work
instead,
her
own
Plaintiff
that Plaintiff's absence from
choice,"
accommodation
(and lost pay)
did not
response.
and "Plaintiff was
well before any legal liability of the
Navy could have attached."
at 16.
(45 days prior
she
argues
because,
did not
that
she
even
return
was
to
"not
after
work.
able
to
specifically and clearly because Defendant
accommodate her
(as
found by
the
jury)
and would not
permit her to return to work until all accommodations were
in
place."
3,
ECF No.
The
Pl.'s Resp. to Def.'s Mem. Regarding Back Pay Award,
328.
Court
finds
instruction not
place,
failure
prior
to
to
to
return
that
return
the
to
Navy's
work
Plaintiff's
to
resulting loss of pay.
work
conduct,
until
an
resignation,
at
Sewells
and
the
Navy's
accommodation was
caused
Point
in
Plaintiff's
Clinic
and
the
The evidence at trial demonstrated that
38
Plaintiff
was
Plaintiff
return
Crump
instructed
the
Navy,
to
speak
reasonably understood
to work until
Damages
Green,
by
"re;
Plaintiff,
at
216:7-217:15;
"re:
RE:
Return
Navy,
over
an
extended
accommodation
efforts,
but
Plaintiff.
Due
the
to
of
PA
accommodation process,
period
ultimately
Navy's
put
Navy,
in place.
from
Summer
able
resigned.
to
return
to
See
Williams
Crump,"
to
AX-33;
"re: Sorenson," PX-87.
of
time,
failed
to
extended
undertook
accommodate
and
disjointed
and the Navy's instruction not to return
to work until an accommodation was put in place.
not
not
who
Email from Williams to
Email from Badura to Crump dated 8/16/11,
The
the
Email
PA Summer Crump," AX-26;
Green,
individuals
for
an accommodation was
Test,
FW:
or
to
work
It follows,
then,
at
Sewells
Point
Plaintiff was
Clinic
before
she
that Plaintiff's lost wages through
the date of her resignation were caused by Defendant's unlawful
conduct.
See Tobin,
be
responsible
held
notwithstanding
' [i] f
the
inability
the
553 F.3d at 141
for
Press of Me.,
473 F. Supp.
to
conduct
caused
damages.'"
364 F.3d 368,
2d at 1299
amount
failure
unlawful
mitigate
Inc.,
entire
employee's
employer's
to
the
("However,
(quoting
384
the employer may
of
obtain
the
Johnson
(1st Cir.
lost
salary
another
job
employee's
v.
Spencer
2004))); Hudson,
(finding that plaintiff was entitled to
back pay because defendant had placed plaintiff on leave without
pay,
and
later,
"AWOL"
status,
39
due
to plaintiff's
disability,
which
the
jury
found
that
defendant
Szedlock, 139 F. Supp. 2d at 733
regarding
causation
extended period of
caused
plaintiff
Further,
because
time"
to
to
to
accommodate);
(rejecting defendant's argument
defendant's
failure
"over
accommodate plaintiff's
pursue
to the extent that
failed
and
accept
medical
the Navy contends
disability
disability).
that
Plaintiff's
understanding of the Navy's instructions was mistaken,
did not correct
for
Plaintiff
inability
to
the Navy
such mistake with Plaintiff or arrange a
to
return
return
to
to
work
work.
at
Therefore,
Sewells
Point
an
time
Plaintiff's
Clinic,
and
the
resulting loss of pay,
was due to the Navy's instruction not to
return
an
to
work
until
accommodation
was
in
place
Navy's ultimate failure to accommodate Plaintiff -
and
the
as determined
by the jury.
B. Back Pay or Front Pay Period
1. Commencement of Back Pay Period
Plaintiff asserts that the back pay period should begin on
June
27,
during a
2011
— the
date
she
back
pay
calculation
because the Navy was not,
not
requested
accommodations,
meeting with TCA employee Angela Green,
work at Sewells Point Clinic.
its
first
find the Navy,
on
However,
the
date
to
return to
the Court cannot begin
proposed
by
Plaintiff
and — as instructed — the jury could
liable for violating the Rehabilitation Act
40
prior to February 26,
2012
(the date 45 days prior to the date
Plaintiff initiated EEO counseling).
As discussed at trial,
Opinion and Order,
or
after
Plaintiff
February
[Plaintiff]
26,
a
2012"
reasonable accommodation
(the
22;
liable
a
Op.
& Order at 70-74.
discrete unlawful
Further,
to
days
2012)
before
in order
employment
accommodate
is
a
action
discrete
Jury
as discussed above,
back pay award related
is
upon which such discrete act takes place.
failure
45
for violating the Rehabilitation Act.
the starting point for calculation of a
to
date
initiated EEO counseling on April 11,
to be found
Instr.
and in the Court's summary judgment
Plaintiff was required to prove that the Navy
"failed to make or offer
on
Jury Instr. 22.
tied
to
Therefore,
discriminatory
the
date
because a
act,
the
Navy could not be found liable for such conduct before February
26,
2012.
Thus,
Plaintiff
may
not
receive
back pay
for
lost
wages that arose before the Navy failed to accommodate Plaintiff
or before
the Navy could be
accommodate.
Accordingly,
found
liable
Plaintiff
wages incurred before February 26,
for
may not
such failure
recover
for
to
lost
2012.
Plaintiff urges the Court to recognize a
dichotomy between
the liability and remedy portions of a discrimination claim, and
to find that,
for
while a statutory limitations period is important
determining
relevant
for
liability,
such
determination of
a
41
limitations
damages
period
period.
is
However,
less
the
cases
cited
unavailing
cited
by
by
Plaintiff
in a
in
support
"discrete act"
Plaintiff
simply
case
of
her
such as
demonstrate
that
argument
this.
a
The
relaxing
limitations period for consideration of damages
where "[t]he
employment
a
.
.
.
occurs
over
cases
of
the
takes place
cases of continuing violations — that is,
practice'
are
series
in
'unlawful
of
days
or
perhaps years and,
in direct contrast to discrete acts, a single
act
may not
of
536
harassment
U.S.
at
115
Prefabricators,
be
actionable
on
added) ;
see
(emphasis
Inc.,
438
F.
Supp.
176,
U.S.C.
included
the
"to
employers
years"
limit
who
and
have
unlawful practices
cases
for
seeking damages
damages
that
period
for
the
extends
Miami
(S.D.
Fla.
1977)
two-year
defendant
in
for
a
beyond
recovered from
discrimination
has
been
engaged
continuing violation,
the
180-
resolution,
cases,
is a
limitation
such limitation was
such an extended period of
seeking
Rehabilitation Act
engaged
Morgan,
v.
back pay which could be
been
" [w] here
§ 2000e-5 (g) (1) ,
own."
Miller
181
(explaining that while Congress provided a
on back pay in 42
its
or
for
many
in
such
time").
a
In
period of
300-day ADA statutory
or
45-day
reasonable means of
defendant employer's continuing violation which,
period
in
remedying a
by definition,
is pervasive and ongoing,
but perhaps not easily detectable or
demonstrable based upon a
single instance.
suffering
a
continuing
violation
42
is
Often,
xinaware
a
plaintiff
of
the
discrimination and would
should
seek
charge
of
by
necessarily
initiating
discrimination.
(describing
discrete
redress
not
the
act
violation,
transfer,
differences
See
In
"such as termination,
that
counseling
Morgan,
between
violations).
or refusal
EEO
know
536
he
or
U.S.
continuing
contrast,
are
at
a
113-19
violations
and
discrete
act
a
easy to
she
filing
failure to promote,
to hire[,]
or
denial of
identify,""
and
"[e]ach incident of discrimination and each retaliatory adverse
employment decision constitutes a
employment
point
practice'"
which
a
separate actionable
plaintiff
might
recognize
from which to begin seeking resolution.
Plaintiff's
violation,
regarding
failure
the
the
to
Court
accommodate
is
purported
not
claim
persuaded
distinction
by
is
'unlawful
Id.
not
a
Thus,
the
a
as
continuing
Plaintiff's
between
as
argument
liability and
remedy phases of a discrimination claim.
Plaintiff
further argues
that
the
"make whole"
purpose of
back pay requires calculation of back pay in this case to begin
Our Court of Appeals has stated,
"failure
to
accommodate
constitutes
in an unpublished opinion,
a
discrete
act
rather
that a
than
an
ongoing omission."
Hill v. Hampstead Lester Morton Court Partners LP,
581 F. App'x 178,
181
{4th Cir.
2014);
accord,
e.g., Ayala v.
Shinseki, 780 F.3d 52, 57 (1st Cir. 2015); Mayers v. Laborers'
& Safety Fund of N. Am., 478 F.3d 364, 368-69 (D.C. Cir. 2007).
Health
" Further, as Plaintiff's claim is against a government entity and the
Rehabilitation Act
constitutes
a
limited
waiver
of
the
government's
sovereign immunity from suit, questions regarding such waiver must be
"strictly construed,
in terms
of
its
scope,
in
favor
of
the
sovereign."
Lane v.
Pena,
518 U.S.
187,
192
(1996)
(citations
omitted).
43
at
the
point
Plaintiff
However,
when
lists
Plaintiff
several
first
cases
sought
in
accommodation,
support
of
such
and
argument.
such cases do not undermine the Court's conclusion that
the back pay period may not begin prior to the date on which the
Navy may be
found
For
Plaintiff
example,
Perry Div.,
445 F.
Supervisors
of
day requirement
on
equitable
for
its
cites
Supp.
L.S.U.,
proposition that
limitation
liable
65
discrete
Fannie
v.
Chamberlain Mfg.
F.2d
971
an administrative
(5th
Cir.
limitation
1983),
period
for
which
However,
a
the
complaint
a
See 445 F.
allege
a
the
the
45-
is
can
addressed
violation involving sex discrimination.
and Two of
case)
plaintiff
Fannie
for
(such as
to seek EEO counseling in this
the
Corp.,
(W.D. Pa. 1977) and Berry v. Bd. of
715
damages.
("Counts One
discriminatory act.
not a
recover
continuing
Supp.
at 69
historical and
continuing pattern and practice of discrimination against female
employees
remand
based
to
the
plaintiff's
upon
district
Equal
because
"[t]he
remedy,
for
it
their
Pay
theory
has
sex.").
court
Act
may
been
for
claim
also
be
stated
Berry,
further,
determination
was
a
that
whether
continuing
relevant
to
'[o]nce
a
may
also
recover
for
portions
of
the
violation
plaintiff's
having
discrimination continuing into the actionable period,
plaintiffs
ordered
the
.
shown
.
.
the
persistent
process of illegal discrimination that antedated the limitations
period.'"
715 F.2d at 979-80
(quoting Laffey v.
44
Nw.
Airlines,
567
F.2d
429,
Marinelli
1998),
v.
472
(D.C.
City of
Cir.
Erie,
1976)).
25
F.
Plaintiff's
Supp.
2d 674,
citation
679
(W.D.
to
Pa.
is equally unpersuasive because the district court's back
pay award,
beginning on the date
"the
jury determined that
the
City became aware that the plaintiff needed an accommodation,"
was vacated by the Court of Appeals for the Third Circuit.^®
Marinelli
Further,
v.
City
Plaintiff's
Corr. ,
229
Yellow
Freight
(S.D.N.Y.
for
F.
losses
period.^®
"
9,
are
2d
938
Inc.,
216
to
Arlt
(E.D.
No.
F.3d
Mo.
while
F.
of
the
Supp.
and
2002
2000).
Dep't
of
E.E.O.C.
v.
WL
31011859
which awarded back pay
it
is
were
at
damages
940
seeking
unclear whether,
applicable
2d
Cir.
Missouri
2002)
the plaintiffs'
outside
229
v.
(3d
plaintiffs
unconvincing because
here,
354
98cv2270,
(unpublished),
began
arose
Arlt,
Pa.,
citations
2002)
asserts
Freight
Erie,
Sys.,
that
Plaintiff
Yellow
Supp.
Sept.
accommodation,
as
of
See
in Arlt
and
statutory
time
(finding
that
The Court notes that the Third Circuit's opinion does not address
the award of back pay at all because the Third Circuit vacated the
jury's finding of liability,
making any discussion of back pay
unnecessary,
" It is further unclear whether the E.E.O.C., as the plaintiff in
Yellow Freight, is bound by the ADA statutory limitations period.
Due
to the E.E.O.C.'s ability to bring an enforcement action, not only to
benefit specific individuals but to "vindicate the public interest in
preventing employment discrimination," several courts have held that
the 180- or 300-day ADA statutory limitation applicable to private
party claims does not apply when the E.E.O.C. brings an enforcement
action on behalf of the same parties.
See E.E.O.C. v. Sterling
Jewelers,
Inc.,
No.
08cv706,
2010 WL 86376,
*6
(W.D.N.Y.
Jan.
6,
2010)
(finding that the 300-day statute of limitations did not apply to the
E.E.O.C.
as plaintiff);
E.E.O.C. v.
45
Freeman, No.
09cv2573,
2010 WL
Rehabilitation Act plaintiff should receive back pay starting on
the
date
he
lost
his
plaintiff
lost
"Informal
Resolution
accommodation,
1999);
such
premium-pay
position
Request"
and received a
Yellow Freight,
in
job,
but
July
explaining
1999,
detailing
then
his
filed
an
requests
denial of his Request
2002 WL 31011859,
that
at *7-10
for
in October
{finding that
ADA plaintiff should receive back pay beginning on the date he
was
cleared
September
to
return
23,
1994,
to
work
but
but
was
explaining
not
that
allowed
to
plaintiff
do
so,
filed
a
grievance with the union in September 1994).
Therefore,
case
on
the Court will begin the back pay period in this
February
the
Navy
could be found liable for violating the Rehabilitation Act.
The
Court recognizes that the
the
Navy had failed
26,
date
2012,"
26,
2012
— the
see Jury Instr.
it
day
22,
determined
Plaintiff
"on or after February
and did not provide a
the
Navy
pertinent unlawful employment practice.
to
Court explained above,
the Navy's
work
accommodation
ultimately
its
lengthy
found
to
be
a
have
However,
begin the back pay period on February 26,
and
on which
jury's verdict simply found that
to accommodate
upon which
first
committed
2012 because,
process,
to
the
the Court will
instruction not
failure
specific
as the
to return to
which
accommodate,
the
jury
predated
1728847, *2 (D. Md. Apr. 27, 2010) (stating that courts are split on
whether the 300-day statute of limitations applies when the E.E.O.C.
brings an enforcement action and listing cases for comparison).
46
February 26,
2012 and prevented Plaintiff from returning to work
at Sewells Point Clinic,
as
of
649
February 26,
F.3d
award
374,
claim); Sutton,
back
pay
2012.
385
commenced
and Plaintiff had not returned to work
(5 th
3 00
See McClain v.
Cir.
days
2011)
before
on
the
that
plaintiff
filed
the
date
Indus.,
(explaining
2004 WL 603477, at *6
calculation
Lufkin
Inc.,
back
his
pay
EEOC
(beginning the plaintiff's
that
the
4 5-day
limitation
period began)
2. Conclusion of Back Pay Period
Plaintiff argues that she is entitled to an award of back
pay through the date of judgment.
that,
if
Plaintiff
is
entitled
period should end on July
resigned
from
her
27,
In response,
to
any back
2012
— the
position with TCA at
the Navy asserts
pay,
date
Sewells
the back pay
that
Plaintiff
Point
Clinic.
The Court agrees with the Navy on this point and finds that the
appropriate
date
period is July 27,
"
The
on
which
2012,
Court notes that
to
conclude
Plaintiff's
back
pay
the date on which Plaintiff effectively
it is possible that the
jury,
having been
instructed that they could not award damages before February 26,
2012
if
such
liability
was
determined,
found
no
reason
to
rely
on
instruction because they coincidentally found that the discrete act of
failure to accommodate just so happened to occur on February 26, 2012.
Moreover,
based
on
the
evidence
presented
at
trial,
such
a
coincidental finding would be reasonable because, due to the Navy's
long-delayed interactive accommodations process, the jury could have
easily found that it culminated with a failure to accommodate on
February 26, 2012.
See Jury Instr. 28 ("An employer's delay in
providing reasonable accommodation may violate the Rehabilitation
Act.").
Thus, the Court finds that beginning the back pay period on
February 26, 2012 is appropriate.
47
deprived herself of joint employment with the Navy and rejected
the
Navy's
offers
employment
and
return
work
to
equivalent"
of
accommodation,
accommodations
at
Sewells
position to
the
would
Point
one
because
have
allowed
Clinic
that
such
in
a
Plaintiff
joint
Plaintiff
to
"substantially
sought
in June
2011.
As
explained
above,
back
pay
calculations
conclude when judgment is entered by a court.
calculations
may
demonstrates
be
that
cut
i t made
short
a
if
a
reasonable
and the plaintiff failed to accept a
at 232; Brady,
stated,
in
the
offer
of
an
back pay
of
employer
reinstatement,
"substantially equivalent"
753 F.2d at 1273.
context
However,
defendant
position by refusing such reasonable offer.
458 U.S.
typically
See Ford Motor Co.,
The Supreme Court has
unlawful
termination,
that
"[a]Ithough the unemployed or underemployed claimant need not go
into
another
line
of
demeaning position,
he
refuses
a
job
denied."
work,
accept
a
his
right
forfeits
substantially
Ford Motor Co.,
demotion,
equivalent
458 U.S.
or
to
back[
to
the
at 231-32
take
a
]pay if
he
one
he
was
(emphasis added).
The Court finds the facts in Ford to be analogous to the present
case
the
where:
Navy's
(1)
Plaintiff
failure
to
was
provide
unable
an
to
accommodation,
tardily made an offer of accommodation
Plaintiff
to return to work
(on terms
48
return
to
work
(2)
due
the
that would have
to
Navy
allowed
substantially equivalent
to those requested by Plaintiff) , and
offer of accommodation.^®
App'x 292,
to
cut
298
off
(6th Cir.
back pay
discrimination
in
suit
(3)
Plaintiff refused such
See Aston v. Tapco Int'l Corp., 631 F.
2015}
(unpublished)
failure
because
to
(affirming decision
accommodate
plaintiff
and disability
rejected
defendant
employer's unconditional offer for reinstatement).
The Navy has demonstrated that it made a
of
reinstatement
which
June
Plaintiff
2012.
to
Plaintiff
received
The
and
Navy's
in its
May
discussed
May
24,
24,
with
2012
reasonable offer
2012
memorandum,
Commander
in
offered
memorandum
Neill
to
Plaintiff the accommodation of ordering and installing the Z-150
video phone device,
to Crump Re:
if such device was approved.
Mem.
from Navy
Status of Reasonable Accommodation Request, AX-118.
Though belated,
the Navy's offer was
implementation of such offer,
of the Z-150 video phone,
that is,
reasonable because,
while
approval and installation
required additional time,
the Navy did
not withdraw or modify its offer at any point before Plaintiff
resigned
or
condition
Further,
Plaintiff
sounded like
The
offered
Court
in
does
the
offer
on
at
trial
that
such
"great accommodation,"
a
its
and,
during
conceded
not
Navy's
address
May
here
24,
any
whether
2012
action
the
other
Memorandum
were
by
Plaintiff.
accommodation
her meeting
accommodations
sufficient
to
provide Plaintiff with a reasonable accommodation.
Instead, the Court
merely addresses the Navy's offer to provide the Z-150 video phone as
such offer would have allowed Plaintiff
to
return to work on the
almost identical to those she originally requested.
49
terms
with
Commander Neill,
Plaintiff
try such accommodation.
Based
on
Plaintiff's
such accommodation,
Feb.
communicated her
agreement
22 Crump Trial Test,
apparent
cooperation
and
at 42:2-10.
agreement
with
the Navy moved forward with getting the
150 video phone approved,
ordered,
to
Z-
and installed at the Sewells
Point Clinic.
However,
installed,
communication between
went awzy.
19,
of
while the Z-150 video phone was being ordered and
the
Navy
accommodation
phone.
Plaintiff
again
Plaintiff did not contact the Navy after the June
2012 mediation with Commander Neill
her
and
Having
and
to determine
installation
of
from
resigned
the
TCA on July
the
27,
the
status
Z-150
2012,
video
Plaintiff
then submitted such resignation letter to the Navy and refused
the Navy's offers of accommodation,
including the offer of
Z-150 video phone, via letter dated August 9,
AKS
to
Neill
dated May 24,
explained
re:
Status
2012,
that
constructively
of
AX-107.
Plaintiff
discharged
Reasonable
2012.
believed
from
TCA
and
Letter from
Accommodation
Plaintiff's August
9,
that
she
the
Navy
the
Request
2012 letter
had
due
been
to
the
failure to respond to Plaintiff's request for accommodation for
over
13
TCA,
and
months.
sent
Id.
such
Plaintiff
resignation
submitted
letter
to
her
the
resignation
Navy,
to
before
installation of the Z-150 video phone was complete on August 15,
2012.
Similarly,
Commander Neill did not reach out to Plaintiff
50
during
the
time
Plaintiff's
between
July
27,
later August
9,
2012
the
the
Navy,
or
the
2012
19,
resignation
letter
actual
June
2012
letter
communicating
functioning
mediation
to
such
TCA,
and
or
the
resignation
installation of
the
to
Z-150
video phone on August 15, 2012.
Plaintiff
accommodation
damages
by
may
not
that
reject
would
returning
to
have
a
reasonable
allowed
her
her position at
Sewells
of
mitigate
to
offer
her
Point
Clinic,
even if the Navy had previously denied her an accommodation or
if implementation of a suitable accommodation was not immediate.
While
Plaintiff
"reasonably
was
out
diligent
in
of
work,
seeking
siabstantially equivalent"
and
she
was
accepting
s^
Ford
Motor
new
to
be
employment
to that of which she was deprived due
to the Navy's unlawful employment conduct.
1273;
required
Co.,
458
U.S.
at
Brady,
231.
753 F.2d at
The
Navy
has
demonstrated that it ultimately made an offer of accommodation
that would have allowed Plaintiff to return to her position at
Sewells
Point
Clinic
with
an
accommodation
the one that Plaintiff sought.
Navy's offer and,
refusing a
in doing so,
almost
Plaintiff, however,
identical
to
rejected the
failed to mitigate her damages by
"substantially equivalent,"
i.e.
identical,
position
to the one that she sought with her requests for accommodation.
Plaintiff
also
of accommodation was
has
not
demonstrated
unreasonable,
51
that
the
insufficient,
Navy's
or made
offer
in bad
faith
such
that
she
might
continue
to
though she rejected the Navy's offer.
of
Transp.,
597
F.3d
1160,
1183
accrue
back
See Brown v.
(11th
Cir.
pay
Ala.
2010)
even
Pep' t
(explaining
that a plaintiff's rejection of an employer's unconditional job
offer may not
end the
accrual
of potential back pay liability
where the employer's offer is not made in good faith,
the employee's
rejection of
omitted));
Toledo
(10th Cir.
1989)
does
not
end
rejection
offer
of
("Moreover,
offer
the
1246
(S.D.W.
to
her.
circumstances
liability
reasonable
1988)
given
Defendant's
has
her
the
claimant's
form
it."
Inc.,
"[t]he Plaintiff has
offer was made by Shoe
giving
1493
reinstatement
the
surrounding
1481,
of
the
(citations
678 F.
Supp.
(granting summary judgment on the
the
she
(citations
F.2d
if
Shoe Show of Virginia,
Va.
Furthermore,
892
rejected offer of
circumstances
contradict
unconditional
Inc.,
]pay
was
issue of back pay because
facts
a
back[
omitted)); Hopkins v.
1241,
the offer is reasonable
Nobel-Sysco,
ongoing
the
and
v.
or where
not
Show and was
to
raised any
position
pointed
reason
not
to
reject
that
an
rejected by
any
the
special
offer.").
Plaintiff's argument that the Navy's offer of accommodation was
unreasonable because,
had
not
yet
been
as of June 19,
approved
and
2012,
the Z-150 video phone
installed,
particularly because Plaintiff knew,
is
unpersuasive,
as of that date,
that such
installation had not yet taken place, yet she still found the Z52
150 video phone to be a
"great accommodation."
Feb.
Trial Test,
Further,
2012 when she
resigned,
at 42:2-10.
Plaintiff
additional
had
no
investigation
as of July 27,
indication,
to
and
determine,
did
whether
22
not
Crump
do
any
approval
or
installation of the Z-150 video phone was being delayed.^'
Thus,
Plaintiff's
accommodation,
failure
accept
the
Navy's
regarding the Z-150 video phone,
for reinstatement,
back
pay
resignation
from
TCA
joint employment,
2012,
offer
of
and opportunity
results in the forfeiture of the remainder of
Plaintiff's
July 27,
to
damages.
Therefore,
effectively
because
deprived
Plaintiff's
her
the
of
Navy's
the Court will conclude the back pay period on
the date that Plaintiff resigned her position at
Sewells Point Clinic and effectively refused the Navy's offer of
accommodation that would have allowed Plaintiff to mitigate her
damages
and
return
to
work
with
the
accommodation
that
she
originally sought.
/
3. Front Pay
An
award
of
front
refused to award front
her
damages
by
reinstatement.
"
The
Court
pay
is
pay where a
unreasonably
See Hurley,
notes
that,
discretionary
plaintiff
refusing
146
during
F.
a
fails
good
App'x at
summary
and
in
have
to mitigate
faith
3 68;
judgment
courts
offer
of
Graefenhain,
this
matter,
Plaintiff stated that she did not learn that the Z-150 video phone was
approved, installed, or operational until March 2013.
See Pi.'s Mem.
of Law in Opp'n to Def. Navy's Mot. for Summ. J., Ex B, Affidavit of
Summer Crump,
142,
205,
ECF No.
112-3.
53
870 F.2d at 1203.
mitigate
her
As the Court found above,
damages
by
refusing
accommodation,
which would have
work
accommodation
with
an
the
allowed
that
Plaintiff failed to
was
Navy's
Plaintiff
almost
offer
of
return
to
to
identical
to
the
accommodation that Plaintiff requested.
The Court further finds
that
offer of
Plaintiff's
refusal
was unreasonable.
Z-150
video
functional,
"great
was
not
she still
accommodation"
Additionally,
the
at
found
and
the
yet
time
approval
do
of
Plaintiff
installation
Plaintiff's
any additional
the
Z-150
would
be
refusal
of
Z-150
to
accommodation
as of June 19,
2012,
the
installed,
approved,
the
agreed
or
video phone
try
such
resigned
to be a
accommodation.
refused
the
Plaintiff had no indication,
Navy's offer of accommodation.
did not
Navy's
Plaintiff knew that,
phone
but
of
and
investigation to
video
phone
had
completed.
the
determine,
been
Finally,
Navy's
and
offer
denied
the
of
whether
or
Court
when
finds
accommodation
regarding the Z-150 video phone to be unreasonable because the
evidence
at
trial
demonstrated
that
Plaintiff's
accommodation was temporary and dwindling.
to use a
year
so
for
any
Plaintiff's ability
telephone without accommodation improved throughout the
following
that
need
her
cochlear implant
she did not
revision surgery — so much
"require an accommodation"
when
she
began
work at Patient First or Team Health in July and August 2012.^°
Plaintiff
explains
in
her
Response
54
to
the
Navy's
Brief
that
Feb.
22 Crump Trial Test,
stated at
trial
that,
at 129:22-130:14.
by September 2012,
Further,
she no
Plaintiff
longer needed
any assistance with telephone calls.
Id. at 113:11-16.
these
of
reasons.
accommodation
Plaintiff's
also
prevents
refusal
an
award
the
of
Navy's
front
For all
offer
pay
of
because
Plaintiff unreasonably refused the Navy's offer of accommodation
and opportunity for reinstatement.
Further,
the Court finds that an award of front pay is not
appropriate
because
Plaintiff.
The
such
evidence
interim earnings in 2013,
or
exceeded
the
amount
were working at Sewells
award
at
would
trial
result
in
demonstrated
a
windfall
that
to
Plaintiff's
2014, and a portion of 2015 either met
she
otherwise
would
have
Point Clinic.While
earned
if
it appears
she
that
Plaintiff did not need to request an accommodation at Patient First or
Team Health because she had purchased an iPad and was able to use the
NTouch Mobile program while working with CompHealth.
See Pl.'s Resp.
to Def.'s Mem. Regarding Back Pay Award, 5 n.7, ECF No. 328; Feb. 22
Crump
Trial
Test.
at
35:21-36:8.
However,
such
argument
is
unpersuasive because Plaintiff provided no evidence that she used the
NTouch Mobile program on her iPad while working at Patient First or
Team Health, or that the reason why she did not need to request an
accommodation at Patient First or Team Health was because she provided
her own video phone device.
The Court is unpersuaded by Plaintiff's assertion that the Court
should not consider Plaintiff's "productivity bonuses" from Patient
First or Plaintiff's earnings from "supplemental employment"
in
determining the amount of Plaintiff's interim earnings.
First, with
respect to Plaintiff's "productivity bonuses," the evidence at trial
demonstrated that such bonuses were an expected part of Plaintiff's
compensation from Patient First and in fact were included in every one
of Plaintiff's paychecks from Patient First that were provided to the
Navy
and
discussed
at
trial.
Crump
Damages
Test,
at
67:3-70:21
Further, such bonuses are not detailed separately on Plaintiff's W-2s,
but are included as part of Plaintiff's yearly income in 2012, 2013,
55
Plaintiff's
First,
positions
with
CompHealth,
or Apollo MD are not a
position at
Sewells
travel requirements,
requirements,
provided
Plaintiff
windfall
Sewells
requests,
of
up
to
Clinic,
due
comparable
Point
Clinic.
would
or
therefore
double
the
Patient First 2012 W-2,
Patient
the
to her
increased hours,
and increased productivity-
An
amount
PX-244;
from
higher
award of
provide
of
earned working at Sewells Point Clinic.
and 2014.
to
interim earnings
with
Health,
"substantial equivalent"
pay differences,
Plaintiff's
Plaintiff
received at
Point
Team
such positions
pay
than
front
Plaintiff
wages
Thus,
she
she
pay,
as
with
would
a
have
even if an award
Patient First 2013 W-2,
PX-
247; Patient First 2014 W-2, PX-322.
As explained above, "the amount
of the back pay award should be *reduced by any earnings acquired
during the interim period regardless of the type of work involved.'"
Brady, 753 F.2d at 1275 (quoting Merriweather, 631 F.2d at 1168)
(emphasis added).
Thus, the Court must consider Plaintiff's bonuses
from Patient First, particularly as such bonuses were a constant part
of Plaintiff's wages,
in determining the amount of interim pay
Plaintiff received from Patient First.
Second,
with respect to
Plaintiff's
"supplemental
employment,"
the
evidence
at
trial
demonstrated that Plaintiff's work with CompHealth and Team Health was
not mere "moonlighting," which she could have performed while employed
at
Sewells
Point
Clinic.
See
Lilly v.
City of
Beckley,
W.Va.,
797
F.2d 191, 196 (4th Cir. 1986) (explaining that courts have held that
"if the plaintiff could have held both the supplemental job and the
job he did not receive because of discrimination, the earnings from
the supplemental job will not be used to reduce the back pay award"
(citations omitted)).
Instead, Plaintiff's shifts with CompHealth and
Team Health were sporadic and were scheduled in a highly different
fashion from Plaintiff's work at Sewells Point Clinic, indicating that
Plaintiff could not have held such positions while working at Sewells
Point Clinic.
Additionally, Plaintiff testified that she took the
CompHealth job because i t was a short term position that would allow
her to easily return to work at Sewells Point Clinic, and Plaintiff's
employment at Team Health began only shortly before her resignation
from Sewells Point Clinic, demonstrating that such positions were not
mere moonlighting jobs, but were intended to be a flexible replacement
for P l a i n t i f f ' s income from Sewells Point Clinic.
56
of front pay were not foreclosed by Plaintiff's choice to resign
and refuse
the
Navy's
offer of accommodation,
front
pay would
not be appropriate because such award would place Plaintiff in a
better
financial
circumstance
than
she
would
have
enjoyed had
the Navy not failed to provide her an accommodation.
Therefore,
the Court denies Plaintiff's request for front pay.
C. Mitigation
Having
Court
now
period.
determined
addresses
the
the
appropriate
issue
of
back
pay
mitigation
period,
during
the
that
time
The Navy argues that Plaintiff has failed to mitigate
her damages because, as the Navy's expert witness Dr. James Koch
testified at trial,
there were a
positions
available
Plaintiff
failed
diligence."
in
to
In
Hampton
pursue
response.
number of physician assistant
Roads
such
in
2011
positions
Plaintiff
with
does
not
physician assistant positions were available,
"Plaintiff
practice)
practice .
Award
at
employment,
was
and
.
not
had
. ."
7.
able
to
to
shift
find
her
a
job
search
in
and
2012
and
"reasonable
dispute
that
but explains that
her
into
field
other
(family
fields
of
Pl.'s Resp. to Def.'s Mem. Regarding Back Pay
Plaintiff
argues
that
she
reasonably
pursued
even while she was waiting for the Navy to respond
to her requests
for accommodation,
initially taking a
which resulted in Plaintiff
temporary position so that she
could return
to work at Sewells Point Clinic once the requested accommodation
57
was in place.
Id.
While Plaintiff's award of back pay ends as
of the date she resigned,
thereby refusing the Navy's offer of
accommodation regarding the Z-150 video phone,
that the Navy has not demonstrated that,
2012
to July 27,
'reasonably
substantially
discharged.'"
during the February 26,
2012 back pay period.
diligent
in
seeking
and
to
Szedlock,
Plaintiff failed "to be
that
equivalent
139 F.
the Court finds
accepting
from
Supp.
new
employment
which
2d at 734
she
was
{quoting Brady,
753 F.2d at 1273) .
The
Court
mitigation
First,
limits
efforts
42 U.S.C.
or amounts
to
its
the
consideration
back
§ 2000e-5(g)(l)
pay
period
of
Plaintiff's
discussed
states that "[i]nterim earnings
earnable with reasonable diligence by the person or
persons discriminated against shall operate to reduce
pay
otherwise
consideration
interim
allowable."
of
earnings,
duty to mitigate
is
tied
to
and
the
(emphasis
such back pay is
deduction
of
determination
inapplicable.
and appears
to
the back
added).
Thus,
Plaintiff's
of
If back pay is not allowable,
demonstrated otherwise,
its brief.
Id.
mitigation,
otherwise allowable."
not
above.
"back
pay
Plaintiff's
The Navy has
concede
as much
See Navy's Mem. Regarding Back Pay Award at 28
in
("Any
final award using the gross wages method also would have to be
mitigated to account for the $5,226.00 in wages Plaintiff earned
from
CompHealth during
the
February 26,
58
2012
to July 27,
2012
time period.").
As the back pay allowable in this case begins
on February 26,
2012 and ends on July 27, 2012, only Plaintiff's
interim earnings during such period will operate to reduce the
award of back pay.
defendant
relevance
Second,
employer's
pre-violation
after determining
649 F.3d at 385;
plaintiff's
the Court notes that,
the
is
back pay period,
Joe's Stone Crabs,
pre-violation
conduct
conduct
Inc.,
is
of
much like a
of
limited
see McClain,
296 F.3d at 1276,
limited
so a
relevance
in
determining whether he or she engaged in reasonable mitigation
during the applicable back pay period.
Here,
Plaintiff sought
to mitigate her losses by seeking employment even before she was
required
F.3d 768,
to
do
773
so.
Cf.
(10th Cir.
N.L.R.B.
2016)
v.
Cmty.
Health Servs.,
(explaining that
812
"employees who
believe they have been unlawfully terminated have a duty to seek
out substitute employment while they await a
that
issue,"
but
"employees who
are
not
but suffer other labor injuries — e.g.,
wage
— have
no
duty
to
seek
secondary
decision on their unfair labor practices
Dodge
Lines,
Corp.
Inc. ,
v.
NLRB,
314
313
N.L.R.B.
U.S.
324,
177,
325
Board decision on
unlawfully
terminated
reduction in hours or
employment
claim"
199-200
(1994))).
pending
a
(citing Phelps
(1941);
88
Thus,
Transit
the
Court
will not penalize Plaintiff for her efforts to mitigate her lost
wages
by deducting
the
amounts
she earned before
the
back pay
period — a time frame before the Navy could be found liable for
59
violation
of
the
Rehabilitation
Act
—
from
the
award
of
back
pay.
As discussed above,
Plaintiff
applied
began
to
locations,
the
Inc.,
for
employment
thirty-five
in
of
applications,
demonstrate
in
attempting
period.
287
and
F.
See
App'x
that
to
her
Thompson
(4th
a
2011
and
variety
of
The Court finds that
Plaintiff
v.
255
in
geographic
mitigate
Benson
249,
the
September
jobs,
between February and May 2012.
applications,
relevant
looking
approximately
number
diligent"
the evidence at trial demonstrated that
Cir.
range
was
of
such
"reasonably
damages
during
the
Cadillac-Oldsmobile,
2008)
(unpublished)
(affirming back pay award and finding that plaintiff's efforts
were sufficient
until
March
18,
to mitigate damages when
2004,
Plaintiff
Benson
"from April
submitted
for approximately eighty-two separate positions,
manager
positions
(internal
her
positions
at
banks,
citations
continued
at
automobile
restaurants,
omitted)).
efforts
to
retail
Plaintiff's
find
applications
as
well
as
businesses"
applications,
employment,
2003,
including F & I
dealerships,
and
21,
were
and
clearly
successful because Plaintiff began working with CompHealth prior
to commencement of the back pay period.The evidence at trial
The Navy argues that Plaintiff should have sought out a permanent
position when she began searching for employment in 2011.
Navy's Mem.
Regarding Back Pay Award, 18, EOF No- 324.
However, the Navy's
argument is unavailing.
When Plaintiff began her temporary position
with CompHealth in December 2011, she was still hopeful that the Navy
60
further demonstrates that,
during the back pay period,
Plaintiff
worked as many shifts as she could with CompHealth and that she
often
worked
assignment
accepted,
more
for
two
than
forty
CompHealth.
additional
hours
a
week
Plaintiff
was
when
also
she
was
offered,
on
and
employment positions with Team Health
and Patient First between February and July 2012.
Finally,
in
addition to the three positions Plaintiff held when she resigned
from
Sewells
Point
Clinic,
Plaintiff
was
offered
an additional
three positions in 2014, one of which she accepted.
Therefore,
the
Court
finds
that
the
Navy
has
failed
to
demonstrate that Plaintiff's award of back pay should be reduced
or eliminated completely for failure to mitigate damages during
the back pay period.
would provide her an accommodation and, indeed, Plaintiff had limited
information with which to determine whether the Navy had denied her
requests for accommodation.
The Court notes that Plaintiff's decision
to accept a temporary position with CompHealth during the back pay
period was not unreasonable because such position would have allowed
Plaintiff to return to her position at Sewells Point Clinic once an
appropriate accommodation was put in place.
See Boyd v. SCM Allied
Paper Co. , No. 84cv241, 1986 WL 15558, *15 (N.D. Ind. June 16, 1986)
(unpublished) ("Under the circumstances that surround Boyd's lay off
it was reasonable for him to be self-employed and not seek a permanent
position because he expected to be recalled at any time. By November
1983, however, when it became clear to Boyd that he would not be
rehired, Boyd had a duty to mitigate his damages.").
The
Court
limits
its
discussion
of
Plaintiff's
work
hours
here
to
the hours Plaintiff worked for CompHealth, because evidence at trial
demonstrated that such position was the only job from which Plaintiff
earned income during the back pay period.
See Bench Trial Tr.
Excerpt, Koch Test., 123:16-124:15, Feb. 26 and 29, 2016, ECF No. 333
[hereinafter "Koch Damages Test."].
61
D. Back Pay Award
In
calculating a
calculated
employee
by
determining
would
occurred .
.
Ford,
F.
984
back pay
.
have
and
Supp.
F.2d at 1275.
"the
earned
the
at
Thus,
award,
389
back pay amount
difference
had
actual
the
the
during
omitted) ;
as determined above,
what
the
conduct
wrongful
earnings
(citations
between
is
not
that
period."
see Brady,
753
Plaintiff is entitled
to an award of back pay for losses incurred between February 26,
2012
and
July
27,
2012.
Such
losses
will
be
reduced by any
interim earnings that she received during the same time period.
With
Plaintiff
respect
to
the
seeks an amount
calculation
of
such
accounting
for
her
raises,
and loss of fringe benefits,
health,
vision,
holidays.^''
failed
to
continuing
argues
40-hour
dental,
lost
pay
award,
pay,
annual
including contribution for
and disability insurance and paid
In response, the Navy argues, first, that Plaintiff
demonstrate
raises
that,
or
because
work
counting.
life,
back
weeks,
Third,
that
she
insurance
Plaintiff
an
the
receive
benefits.
back
Second,
is
seeking
lost
for
holiday
pay
argues
that
award
Navy
should
an
wages
would
award
of
pay
for
the
Navy
for
full
be
double
back
pay
Plaintiff also requested back pay related to loss of wages from
Apollo MD due to the Navy's submission of an incorrect credentialing
report to Apollo MD. However, as Plaintiff was not offered a position
with Apollo MD until December 2014, and the purported damages related
to Apollo MD's credentialing period arose in 2015, such damages are
far outside the back pay period determined above.
Thus, such damages
are not included as part of the Court's back pay award.
62
should
be
offset
by
any
amount
Plaintiff's settlement with TCA.
of
back
pay
addressed
by
The Court will address each of
the Navy's arguments in turn before detailing its calculation of
the back pay award in this matter.
1. Raises and Fringe Benefits
First,
regarding
Plaintiff's
raises
and
fringe
benefits,
the Court may include reasonably anticipated salary increases or
fringe benefits in its back pay award if Plaintiff demonstrates
that such raises or benefits were part of the earnings she lost
as a result of the Navy's unlawful employment action.
9
F.3d at 343;
Supp.
the
at 389.
Court
include
Hylind,
Supp.
3d at
741-42;
Ford,
984
F.
With respect to Plaintiff's anticipated raises,
finds
that
consideration
demonstrated at
31 F.
See Long,
trial
Plaintiff's
of
award
Plaintiff's
that
she
was
of
annual
scheduled
back
pay
raise.
to
should
Plaintiff
receive
a
raise
of $1.02 in September of each year of her employment at Sewells
Point
Clinic.
received
Plaintiff
Crump
such pay
Damages
raise
in
Test,
at
September
2010,
left work for her cochlear implant
she earned $52.02 per hour.
Thus,
raise in September 2011,
that,
during
the
and,
Plaintiff
at
the
time
revision surgery,
had Plaintiff been able to
return to work after her revision surgery,
hour
3:20-4:2.
and received her pay
Plaintiff would have earned $53.04 per
back pay period.
Further,
the
at least for the limited back pay period of
63
Navy
concedes
February 26,
2012
to July 27,
2012,
a
base pay rate of
acceptable and the Navy's expert witness.
$53.00 per hour is
Dr.
Koch,
relied on a
figure of approximately $53.00 per hour as a basis for his back
pay opinion.
Navy's Mem. in Opp'n to Pl.'s Br. Supporting Award
of Back Pay and Front Pay,
8, ECF No. 327.
Thus,
the Court will
calculate Plaintiff's back pay award based upon a
base rate of
$53.04 per hour.
With
lost
pay
respect
insurance
award
to
Plaintiff's
benefits,
does
not
benefits.
"Back
benefits.
However,
the
Court
include
pay
finds
losses
generally
the
requested
that
related
includes
burden
reimbursement
is
on
for
Plaintiff's back
to
lost
her
insurance
salary
Plaintiff
and
to
lost
present
evidence to establish the amount of back pay and lost benefits
to
which
Indus.,
Aug.
she
is
Inc.,
31,
entitled."
No.
1999)
Herring
4:96cv00081,
1999
(unpublished);
see
v.
WL
Thomasville
1937352,
Edwards,
Furniture
*5
658
(M.D.N.C.
F.2d
at
("After an unlawfully discharged employee produces evidence
support
of
burden of
mitigate
failed
Point
dental
to
her
claim
for
back
pay .
.
. the
employer
has
956
in
the
showing that she did not exert reasonable efforts to
her
damages."
adequately
Clinic
included
insurance
(citations
demonstrate
that
contributions
benefits.
omitted)).
to
Further,
64
Plaintiff
her
earnings
her
health,
Plaintiff
at
Sewells
vision,
has
has
failed
and
to
demonstrate
the
value
of
any
contribution
to
her
insurance
benefits for purposes of calculating a back pay award.
Plaintiff
dental,
testified
vision,
at
trial
that
she
received
health,
life insurance and disability insurance benefits
while employed at Sewells Point Clinic and that TCA contributed
to the costs for such benefits.^^
However, when questioned about
such benefits on cross-examination,
how
much
TCA
contributed
she point to a
that
TCA
insurance
to
her
99.
insurance
benefits,
nor
could
document or piece of evidence that demonstrated
contributed
to
benefits
all,
at
Plaintiff's
or
that
value of TCA's contributions.^®
83:7;
Plaintiff could not remember
health,
dental
demonstrated
or
the
Crump Damages Test,
vision
amount
or
at 74:23-
see Letter to Plaintiff from TCMP Offering Employment,
AX-
The Navy concedes that there is some evidence that TCA paid
Plaintiff
also
testified
that
she
received
other
benefits
(CME
allowance, uniform allowance, paid vacation, etc.) while employed at
Sewells Point Clinic.
However, Plaintiff is not seeking back pay
related to such other benefits;
thus,
the Court
does not
address such
benefits here.
On re-direct Plaintiff was able to refresh her memory and she
testified that TCA contributed $317.12 bi-weekly to her health,
dental, and vision insurance.
Crump Damages Test, at 100:12-105:3.
Plaintiff, however, was not able to point to any evidence, other than
her own testimony, that supported her assertion that TCA contributed
$317.12 bi-weekly to Plaintiff's health, dental, and vision insurance.
Instead, the figure provided by Plaintiff on re-direct mirrors the
amount that she paid for her medical insurance (excluding dental and
vision insurance) while on medical leave during summer 2011.
TCA/TCMP
Benefit Tracking Summer Crump, PX-259.
However, even if the Court
were to credit Plaintiff's testimony that TCA contributed $317.12 bi
weekly to her health, dental, and vision insurance, the resulting
contribution benefit per hour amount, $3.96 per hour, is markedly less
than the figure proposed by Plaintiff in her post-trial briefing.
65
for
Plaintiff's
Mem.
Pay
group
life
and
in Opp'n to Pl.'s Br.
at
20
n.l2.
disability
insurance.
Navy's
Supporting Award of Back and Front
However,
Plaintiff
failed
to
provide
any
evidence demonstrating the value of TCA's contributions to her
group life and disability insurance benefits.
The only evidence
Plaintiff provided at trial regarding the value or amount of any
of her insurance benefits was a document detailing the amount of
insurance premiums
Crump
Damages
Summer
that
Test,
Crump,
Plaintiff paid while on medical
at
84:5-86:15;
TCA/TCMP
Further,
Plaintiff
PX-259.
pursuant
to
the
"Leave
of
Absence"
handbook,
she understood that
"if
[she]
for
[TCA]
providing
in
elect[ed]
not
[she would]
that,
the
20,
during
AX-2.
from Sewells Point Clinic,
[her]
However,
leave .
TCA
to return
be required
for the costs of the premiums paid by
coverage
Employee Handbook,
Tracking
testified
provision
to work at the end of the leave period,
to reimburse
Benefit
leave.
.
.
[TCA]
."
TCMP
after Plaintiff resigned
she was not required to reimburse TCA
for any insurance benefits to which TCA contributed,
suggesting
that TCA did not contribute to any health insurance benefits for
Plaintiff.
Crump
Damages
Test,
at
86:16-87:12.
Thus,
as
Plaintiff has failed to adequately demonstrate that she actually
received
dental
contributions
benefits
Plaintiff
has
while
failed
for
the
working
to
cost
at
her
Sewells
demonstrate
66
of
the
health,
Point
value
vision,
Clinic,
of
and
or
as
any asserted
contributions
working
Plaintiff
at
to
the
Sewells
back
Point
pay
contributions.^'
insurance
for
benefits
Clinic,
the
loss
the
of
she
Court
such
received
will
not
insurance
while
award
benefit
See E.E.O.C. v. Nutri/Sys., Inc., 685 F. Supp.
" Plaintiff argued at trial that the reason why she presented limited
evidence regarding the
insurance benefits and contributions
she
received while employed at Sewells Point Clinic was because the Navy
"stipulated that plaintiff was eligible and enrolled in various
employee benefits offered and paid for by TCMP . . .
Crump Damages
Test,
at 94:23-95:6.
In support of such contention,
Plaintiff
referred the Court to the Navy's Statement of Undisputed Facts,
included in the Navy's Memorandum in Support of Summary Judgment, ECF
No. 83.
The Navy's Memorandum states, at paragraph 22, that:
Plaintiff was eligible for and enrolled in various employee
benefits offered (and paid for) by TCMP, including a 401{k)
plan, health insurance, dental insurance benefits, vision
care
benefits,
group
life
insurance
and
short
term
disaibility benefits while working at BMC Sewells.
DEX 1,
#26-27,
32-33,
35-36,
38-39,
not
eligible
for
and
retirement plan, thrift
43-44,
67-68.
Plaintiff
was
did not
enroll
in any federal
savings plan, or health insurance
program offered through the Navy or the federal government.
Id., #29-31, 41-42.
Id.
at 6.
However,
the Court does not interpret such statement to be
a stipulation regarding TCA's payment of benefits.
Instead, the Court
reads such paragraph, made in the context of counter-mot ions for
summary judgment regarding the Navy's status as Plaintiff's joint
employer, to state that TCA was responsible for offering, and paying
for the offering, of certain employee benefits.
While the Court
agrees that litigation, or the presentation of evidence on an issue,
may be foreclosed when an issue has been waived due to a judicial
admission,
the
Navy's
statement
quoted
above
is
not
a
judicial
admission.
A
judicial
admission
includes
"'intentional
and
unambiguous waivers that release the opposing party from its burden to
prove
the
facts
necessary
to
establish
the
waived
conclusion
of law.'"
Everett
v.
Pitt Cty.
Bd.
of Educ.,
788
F.3d 132,
141
(4th
Cir. 2015) (quoting Winter v. Wells Farqo Bank, N.A., 762 F.3d 339,
347 (4th Cir. 2014)).
"A purported judicial admission is binding only
if the statement is
'deliberate,
clear,
and unambiguous.'"
Id.
(quoting Minter, 762 F.3d at 324).
The Navy's statement, made during
summary
judgment
briefing,
is
not
a
"deliberate,
clear,
and
unambiguous" stipulation that TCA paid, or contributed payment, for
Plaintiff's employee benefits.
Further, even if such statement were a
stipulation, as Plaintiff claims. Plaintiff failed to demonstrate the
67
568,
571
(E.D.
Va.
1988)
fringe benefits because
expenses
was
meager
Westinghouse
Elec.
(denying
request
"evidence on these
and
unpersuasive"
Corp.,
576
F.
for
expenses
fringe benefits and
{citing
Supp.
and
704,
Hunter
727
v.
(S.D.
Ohio
1983}}) .
Alternatively,
even
if
Plaintiff
had
provided
sufficient
proof that she received contributions to her insurance benefits
while employed at Sewells Point Clinic,
Plaintiff has failed to
demonstrate that she should receive the per hour value of such
benefits as requested in her post-trial briefing.
Supporting Award of
Back and
the
she
fringe
equal to a
benefits
Front
Pay,
received at
hour figure,
as discussed by Dr.
Plaintiff
Sewells
value of $17.64 per hour.
In her Brief
argues
Point
that
Clinic
are
However,
the $17.64 per
Koch at trial,
represents the
national average value of fringe benefits for a private sector
employee
in
Statistics.
Feb.
March
2014,
as
Jury Trial Tr.
22 and 23,
2016,
Test.,
114:12-18,
"Koch
Damages
Feb.
ECF No.
reported
Excerpt,
the
Bureau
Koch Test.,
of
2016,
Plaintiff
ECF No.
presented
Labor
246:21-247:3,
334; Bench Trial Tr. Excerpt,
26 and 29,
Test."].
by
Koch
333
[hereinafter
no
evidence
or
testimony that the value of the insurance benefit contributions
that she received while working at Sewells Point Clinic were at
value of TCA's contribution to such benefits, leaving the Court unable
to
calculate
a
back
pay
amount
including
the
loss
of
such
contributions.
68
all
comparable
figure,
which
fringe
to
such
encompasses
benefits
contributions,
Plaintiff's
national
a
(sick
average,
national
pay,
insurance
average
vacation
benefits,
limited claim for health,
a
figure
contributions
inconsistent
as
proof
is
of
the
untenable.
with
the
vision,
105:3
(stating on re-direct,
recollection,
Plaintiff's
that
TCA
health,
value
such
variety of
retirement
compares
dental,
of
her
life,
lost
such
to
and
amount
benefit
figure
that
Crump Damages Test,
is
Plaintiff
at 100:12-
and upon being able to refresh her
contributed
dental,
a
how
Plaintiff's reliance on
benefit
ultimately requested at trial.
for
pay,
Further,
fringe
less
etc.),
disability insurance and holiday pay.
such
much
$317.12
and vision
bi-weekly
insurance).
to
Therefore,
the Court will not award Plaintiff back pay for the loss of any
contributions to her insurance benefits.
2. Holiday Pay
Second,
Plaintiff
regarding
is
not
holiday
entitled
during the back pay period.
to
pay,
the
Court
reimbursement
for
finds
holiday
that
pay
As Plaintiff is seeking to recover
lost wages related to her inability to work forty hours per week
at
Sewells
Point
Clinic,
she
cannot
recover pay
that occurred during a forty-hour work week,
not
have
would
be,
worked
as
but
the
would
Navy
have
argues,
69
received
for
holidays
for which she would
pay.
double-counting,
Such
recovery
because
the
Court's
back
pay
award
particular work day
week
within
the
Waffle House,
includes
(holiday or not)
back
Inc.,
already
pay period.
534 U.S.
279,
lost
wages
during a
See
297
any
forty-hour work
generally
(2002)
for
E.E.O.C.
v.
("As we have noted,
it 'goes without saying that the courts can and should preclude
double
recovery by an
the Nw.,
Inc.
v.
individual.'"
E.E.O.C.,
446 U.S.
(quoting Gen.
318,
333
Larchmont Baptist Church Infant Care Ctr.,
695,
707
awards
Tel.
(1980)));
Inc.,
956 F.
co.
of
Evans v.
Supp.
2d
(E.D.
Va.
2013)
(declining to award multiple monetary
related
to
front
pay
because
double recovery amounting in
[sic]
not
is
demonstrated
that
she
to
do
so
a windfall").
entitled
to
would
"permit
Plaintiff has
holiday
pay
in
circumstances when such pay is already included in the award for
back pay.
Plaintiff further has not demonstrated that,
chosen to work on a
lieu of
taking
given holiday at Sewells
paid holiday
time
off,
such
Point
had she
Clinic,
in
holiday pay would
have been banked or paid to her in some other way.^®
Therefore,
The Court recognizes that there may be circumstances where vacation
pay or sick pay, which accrues during employment, may be included as a
fringe benefit in a back pay award.
See
Nichols v. Frank, 771 F.
Supp. 1075, 1080 (D. Or. 1991) (awarding annual and sick leave that
would have accrued during the time that the plaintiff was out of work
due
to discrimination),
aff'd,
42
F.3d
503
(9th
Cir.
1994).
Contra
McKenna v. City of Phila., 636 P. Supp. 2d 446, 459 (E.D. Pa. 2009)
(rejecting back pay request for "banked" sick time, vacation time, and
holidays
that
the
plaintiff
argued
he
lost
due
to
wrongful
termination).
Plaintiff,
however,
holiday pay accrued in such a fashion.
70
has
not
demonstrated
that
her
the
Court
will
not
award
Plaintiff
back
pay
for
her
loss
of
holiday pay.
3.
Settlement Offset
Finally, with respect to the Navy's argument that the Court
should reduce
Plaintiff's
paid her in settlement,
not
appropriate
satisfaction
reduce a
to
rule,"
the Court finds
the
an
instant
"equitable
TCA
that such an offset is
case.
While
doctrine
[that]
the
"one
operates
to
plaintiff's recovery from the non[-]settling defendant
prevent
the
of
involving
joint
F.3d
731,
plaintiff
from
liability,"
assessment
205
in
recovery by any back pay amount
is
tort-feasors,
737
(4th
Cir.
recovering
twice
traditionally
Chisholm
2000),
v.
employed
the
same
Court
in
cases
Projects,
UHP
our
from
Inc.,
of
Appeals
has
noted an exception to such rule.
With respect to discrimination
claims
Housing
brought
defendant,
entitled
under
the
against whom a
to
a
set-off
of
Fair
Act,
a
non-settling
monetary judgment is entered,
such
judgment
amount
for
is not
settlement
payments made by a codefendant who settled before judgment.
Pinchback
Cir.
v.
1990)
request
Armistead
Homes
Corp.,
907
F.2d
there
was
no
federal
law which
the judgment amount should be reduced and a
agreement
a
1453
(4th
{affirming denial of non-settling defendant's offset
because
releases
1447,
See
non-settling defendant
only
if
intended it to have such effect
71
suggested
that
settlement agreement
the
parties
to
the
(citing Zenith Radio
Corp.
V.
Avery
v.
accord
Hazeltine Research,
United
Edwards
I:01cv85,
v.
2002
(unpublished)
Act,
States,
829
Etowah
WL
Inc.,
F.2d
817,
Timberlane
1794719,
("In the
401 U.S.
*1
321,
819
343-48
(9th
Condo.
Cir.
Ass'n
(W.D.N.C.
1987)));
No,
July
context of cases under the
(1971);
1,
31,
No.
2002)
Fair Housing
it appears that any defendants that remain until judgment
are not
entitled to a
reduction of
that
settlements by former codefendants."
at 1453));
2d 456,
full
Bait.
475
(D.
amount
plaintiffs
Neighborhoods,
Md.
of
the
will
defendants").
3:10CV00028,
(unpublished)
2000)
also
2012
WL
LOB,
Smith
that
Inc.,
$240,000
v.
Waverly
*1
the
from
F.
Supp.
fact
the
Partners,
(W.D.N.C.
damages
92
907 F.2d
"LOB is liable for the
notwithstanding
4086774,
(noting
v.
(holding that
receive
Contra
(citing Pinchback,
Inc.
judgment
judgment based on the
that
settling
LLC,
Sept.
17,
to
No.
claims
related
2012)
for
employment discrimination and breach of contract may overlap and
that defendant was entitled to argue for an offset of wage-based
damages,
to
the
extent
that
plaintiff's
discrimination
settlement compensated for such lost wages).
The Court finds
in
Pinchback,
while
the
the Fourth Circuit's reasoning and holding
not
directly
present
case.
on
point,
Similar
to
to
be
the
persuasive
authority
in
facts
in
Pinchback,
there is no federal statute at issue requiring that a
judgment against the Navy be offset by TCA's earlier settlement
72
with
Plaintiff
among
federal
available
in
in
this
courts
a
matter.
regarding
Title
VII
statute addressing the
Servs.,
Inc.,
n.7
(S.D.
Ala.
Emergency
4190714,
Med.
*4
09cv445,
Mar.
15,
Ass'n.
(W.D.
Pa.
whether
action,
federal
No.
While
U.S.
2012)
of
Nov.
a
the
Dist.
Pittsburgh,
No.
2007)
disagreement
offset
existence
see Evans v.
LEXIS
(unpublished)
21,
is
settlement
absent
issue,
2012
there
of
a
Weiser Sec.
124750,
and
is
*10-11
Mavrinac
04cvl880,
(unpublished),
2007
the
v.
WL
Court
finds that the silence of such federal statute counsels against
allowing
a
set-off
for
settlement
in
the
Title
VII
context
because Congress has not manifested an intent that such set-off
apply.See Sears v. Atchison,
Topeka & Santa Fe Ry.,
Co.,
749
Even if the Court were to find that it should look beyond the
statutory silence to federal common law to determine whether a
judgment in the Title VII context should be offset by a pre-judgment
settlement amount, an issue the Court has not fully analyzed, courts
that
have
done
so
have
looked
to
the
42
U.S.C.
§ 1988
framework
and
found that such federal common law must be compared to state law and,
if the two bodies of law are inconsistent, state law must be applied.
See Mavrinac, 2007 WL 4190714, at *5 (discussing the application of a
settlement offset rule in the Title VII context and looking to the
analogous circumstances and language of 42 U.S.C. § 1988 to determine
how to resolve such issue (citing Goad v. Macon Cty.. 730 F. Supp.
1425, 1426 (M.D. Tenn. 1989))).
As the court in Mavrinac v. Emergency
Medical Association of Pittsburgh found, "the federal law, as well as
the legislative history of Title VII, are silent on the issue of the
availability of set[-]off to a non[-]settling defendant in a Title VII
action."
I^; see also Evans, 2012 U.S. Dist. LEXIS 124750, at *11
n.7.
Virginia law, however, allows offset "when a release or a
covenant not to sue is given in good faith to one of two or more
persons liable for the same injury to a person or property, or the
same wrongful death . . . ."
Va.
Code Ann.
§ 8.01-35.1(A);
see
William H.
of Christ,
Gordon Assocs., Inc. v. Heritage Fellowship,
291 Va. 122, 784 S.E.2d 265, 276-78 (2016).
United Church
To the extent
that Virginia law applies to the issue of settlement offset in this
case, the Navy has not demonstrated that the instant back pay award
73
F.2d
1451,
1454-55
defendant's
(10th
request
for
Cir.
1984)
contribution
(rejecting
in Title
non-settling
VII
action
from
codefendant who had previously settled,
relying on the Supreme
Court's
common
refusal
to
find
a
federal
law
right
of
contribution against a non-party union in the Title VII context
(citing Nw.
77,
98
Airlines,
(1981))).
Inc.
Thus,
v.
Transport Workers Union,
the
Navy
is
not
entitled
451 U.S.
to a
set-off
from the present back-pay award for any settlement payments made
by TCA.
Alternatively,
even if application of the "one satisfaction
rule," recognized in Chisholm,
Navy
has
related
not
to
demonstrated
TCA's
that
settlement
requirement for the
were applicable in this case,
it
with
damages arising from a single,
receive
Plaintiff.
'one satisfaction rule'
recovered by settlement and the
F.3d at 737
should
(5th Cir.
485
(8th Cir.
1982);
Harris
essential
judgment must represent common
indivisible harm."
v.
set-off
is that the amounts
(citing Howard v. General Cable Corp.,
358
"The
a
the
Union
Elec.
Co.,
Chisholm,
205
674 F.2d 351,
846
F.2d
482,
1988)).
A non[-]settling defendant may claim an offset for
amounts paid in settlement by other defendants only if
two conditions are met.
First,
the non[-]settling
defendant
must
demonstrate
award (against which
the same injury. . .
that
the
settlement
and
the offset is sought) were for
.
Second, the injury must be
should be offset by TCA's settlement with Plaintiff because the Navy
has not demonstrated that it and TCA are liable for the "same injury."
74
indivisible such
liability
among
that
the
there is joint and several
settling
and
non[-]settling
defendants,
Velez
V.
Roche,
{discussing
335
a
F.
Title
Supp.
VII
2d
1022,
suit
for
1042
(N.D.
gender
Cal.
2004)
discrimination)
(citations omitted).
The
because
Navy
it
fails
has
not
to
satisfy
the
first
step
demonstrated
that
TCA's
settlement
back pay award at issue address the same injury.
invites
the
Plaintiff
Court
to
"inquire
TCA
to
determine
and
into
the
whether
settlement
any
Award
regarding
at
such
Plaintiff's
agreement
29,
the
has
settlement
claims
was
Navy
against
intended
not
TCA,
to
and
or
As
the
between
of
the
Regarding Back
any
what
resulting
address.
and
portion
provided
agreement
above,
While the Navy
settlement is allocated to back pay," Navy's Mem.
Pay
noted
evidence
portion
injuries,
discussed
of
such
above.
Plaintiff and TCA entered into settlement shortly before trial,
and Plaintiff and TCA concluded their settlement discussions
morning
that
presumably
trial
would
began.
have
Absent
proceeded
such
to
settlement.
trial
on
her
the
Plaintiff
ADA
claim
regarding TCA's alleged failure to accommodate and her claim for
constructive discharge against TCA,
Rehabilitation
claims
liable,
against
Act
claim
against
TCA proceeded
to
TCA may have been subject
75
in addition to
the
Navy.
trial,
and
Had
Plaintiff's
Plaintiff's
TCA been
found
to an award of compensatory
damages,
equitable
benefit-related
attorneys'
against
damages
fees.
TCA,
45-day
TCA would
ADA claim
have
against
§ 2000e-5(e)(1)
and
or
other
here),
constructive
longer
or
discharge
statutes
of
and any award of compensatory or
would not have been limited to
applicable
against
claim
pay
applicable
period
the
(detailing
Thus,
be
significantly
TCA,
limitations
Act
to
front
had Plaintiff proceeded to trial
TCA's liability,
Rehabilitation
period).
found
Additionally,
equitable damages
the
(including
not
Plaintiff's
claim against
limitations.
damages
the
180-day
Navy.
or
to
Plaintiff's
See
300-day
42
U.S.C.
limitations
the potential injuries and damages that may have
been addressed in the settlement agreement between Plaintiff and
TCA are significantly broader than the
limited back pay amount
related to Plaintiff's lost wages between February 26,
2012 and
July 27,
the Navy
had
the
2012
that
the
Court
opportunity during
awards
the
here.
Moreover,
bench portion of
the
trial
to
seek to inquire into the specifics of the Plaintiff's settlement
with TCA,
the
but did not do so.
"one satisfaction rule"
Therefore,
even if application of
were appropriate
in this
case,
the
Navy has not demonstrated that TCA's settlement and the back pay
award
back
at
pay
issue
award
address
against
the
the
same
Navy
injury
such
should
be
that
the
offset
instant
by
TCA's
settlement with Plaintiff.^"
The Court does not address the second step noted above,
76
i.e. whether
4.
Having
details
The Court's Calculation
addressed
its
award of
determined above.
the
Navy's
contentions,
back pay damages
owed
to
the
Court
now
Plaintiff.
As
Plaintiff's back pay award will be calculated
at a base rate of $53.04 per hour, with no additions related to
fringe
benefits
pay).
Using such figure.
is $2,121.60
(insurance
benefit
contributions
($53.04 per hour times forty hours) and Plaintiff's
eighty
hours,
two) .
As Dr.
or
Plaintiff's
weekly
Koch testified at trial.
($53.04 per hour times
lost
wages
amount
times
Plaintiff was paid on a
bi-weekly basis and the back pay period,
beginning on February
2012 and concluding on July 27, 2012, is equal to 10.857 bi
weekly pay periods.
142:10.
be
holiday
Plaintiff's weekly lost wages amount
bi-weekly lost wages amount is $4,243.20
26,
or
Koch Damages Test,
The Court finds Dr.
reliable.
including
any
Thus,
equals $46,068.42,
Koch's testimony on this point to
Plaintiff's
deductions
or a
at 111:8-112:11, 141:22-
for
gross
back
Plaintiff's
pay
interim
award,
not
earnings,
bi-weekly wage amount of $4,243.20 for
10.857 bi-weekly pay periods ($4,243.20 times 10.857).
At trial,
review
of
Dr.
Koch further
Plaintiff's
during the February 26,
interim
2012
testified that,
earnings,
to July 27,
he
based upon his
determined
that
2012 back pay period
the injury is indivisible, because it determines that the Navy has
failed to demonstrate that TCA's settlement and the instant back pay
award address the same injury.
77
Plaintiff earned $5,226.00 from CompHealth.
at 123:16-124:15.
Dr.
Koch further testified that,
Plaintiff's
2012
$60,000
of
income
during
2012.
account
for
such
amount
in
earnings
because
amount,
other
W-2
he
than
statements,
could not
the
of
period was
Koch's
the
Court
CompHealth
amount
of
Dr.
Id.
interim
received
$5,226.00,
what
from
than
not
interim
was
that
earned
Dr. Koch's testimony on the
on
during
did
portion of
CompHealth,
earnings
deduct
however,
Plaintiff's
during
Plaintiff.
testimony
will
from
in review of
reported more
Koch,
determine
$5,226.00
uncontradicted by
uncontradicted
Therefore,
from
Plaintiff's
Plaintiff
calculating
during the back pay period."
amount
Koch Damages Test,
this
The
point
Plaintiff's
the
back
Plaintiff's
the
back
pay
Court
finds
Dr.
to
be
reliable.
interim
pay
earnings
period,
gross
in
back
the
pay
($46,068.42) award, for a back pay award of $40,842.42."
"
As noted above,
Plaintiff testified at trial that she began work
with Team Health in July 2012.
Feb.
22 Crump Trial Test,
at 111:22-
112:4; Crump Damages Test, at 62:18-19.
However, as the Navy has
failed to demonstrate that Plaintiff received any interim earnings
from Team Health during the February 26, 2012 to July 27, 2012 back
pay period, the Court will not reduce Plaintiff's back pay award for
earnings received from Team Health.
The Navy also argues, in a footnote, that any back pay award must be
reduced by the amount of federal and state taxes, social security and
Medicare taxes that would have been deducted from Plaintiff's wages.
Navy's Mem. Regarding Back Pay Award at 28 n.26.
The Court agrees
that the back pay awarded herein may be subject to certain federal and
state
taxes.
See
Hemelt
v.
United States,
122
F.3d 204,
210-11
(4th
Cir. 1997) (addressing withholding of PICA and federal income tax from
wages received in settlement of class-action ERISA lawsuit); Thompson
V. C.I.R., 866 F.2d 709, 712 {4th Cir. 1989) (discussing the potential
applicability of various tax consequences for damages awarded under
78
E. Pre- and Post-Judgment Interest
Plaintiff
has
judgment interest,
also
requested
that
the
Court
award
pre-
compounded annually at the Virginia statutory
rate of six percent, and post-judgment interest, on any award of
back
pay.
The
successful
plaintiff
Navy's Mem.
Front
does
is
not
dispute
eligible
for
in Opp'n to Pl.'s Br.
Pay at
Virginia
Navy
six
22.
that,
statutory
not
Therefore,
address
the
the
Court
issue
will
"a
interest."
Supporting Award of Back and
interest
dispute
rate
appropriate interest rate to apply in this matter,
does
general,
pre-judgment
The Navy further does not
percent
in
of
award
compound
the
be
the
would
and the Navy
interest.
pre-judgment
Plaintiff's award of back pay damages,
that
Id.
interest
on
as discussed above,
and
the Equal Pay Act and Title VII) .
However, the applicability of such
taxes does not require the Court to reduce its back pay award.
Instead, the Court finds that it is the parties' responsibility to
withhold or pay the applicable federal and state taxes from such back
pay award and seek any applicable return from the appropriate taxing
authorities.
See Thomas v. Cty. of Fairfax, Va. , 758 F. Supp. 353,
367 n.26 (E.D. Va. 1991) (noting that, in general, employer-paid back
pay generally constitutes wages for purposes of federal and state
withholding, tax authorities should receive their due, neither party
should receive a windfall, and such principles were best satisfied "by
having the County withhold taxes and remit them to the appropriate
revenue authorities; plaintiffs may then seek to reclaim any excess
withholding according to their individual circumstances") ,- Curl v.
Reavis, 608 F. Supp. 1265, 1269 (W.D.N.C. 1985) (rejecting defendant's
request to reduce back pay award to reflect plaintiff's state and
federal withholdings and stating that "the Plaintiff's tax liability
is
a
matter
between
the
Plaintiff
and
the
respective
taxing
authority").
Thus, the Court will not reduce Plaintiff's back pay
award for payment of applicable federal and state tcixes, but will
expect the parties to make the necessary withholdings and pay the
necessary taxes from such award as required by law.
79
such
pre-judgment
award
of
pre-judgment
installment
the
date
988,
993
the
interest
of
will
be
interest
Plaintiff's
compounded
will
wages,
be
less
annually.
calculated
on
each
earnings,
from
Hyde,
F.2d
interim
they would have
been due.
(4th Cir.
(rejecting argument that
entire
sum
is
1978)
due
from
the
See,
date
of
e.g.
the
The
572
"interest on
breach,
[because]
interest would only have been payable on monthly salary payments
as they became due").
begin on
the
first
The accrual of pre-judgment interest will
day
of
the
back pay
period,
February
26,
2012, and will conclude on the date of this Opinion and Order.
Further,
award
pursuant to 28 U.S.C.
post-judgment
interest
§ 1961,
and
such
the Court will also
interest
shall
be
calculated as required by § 1961.
IV.
For
the
reasons
stated
be
awarded
back
Plaintiff
$40,842.42
percent
CONCLUSION
pay
the
damages
Court
in
ORDERS
the
and pre-judgment interest thereon at a
(6%)
to
pre-judgment
installment
above,
be
compounded
interest
of
is
to
Plaintiff's
annually.
be
As
calculated
salary,
less
set
on
that
amount
of
rate of six
forth
each
above,
separate
interim earnings,
from
the date i t would have been due to the date of this Opinion and
Order.
The
Court
further
ORDERS
an
award
of
post-judgment
interest beginning on the date of this Opinion and Order.
80
Having resolved Plaintiff's
request for equitable damages,
and as the jury verdict in this matter has already been entered,
ECF
No.
314,
the
Clerk
is
REQUESTED
to
enter
judgment
on
the
jury's verdict in favor of Plaintiff.
The Clerk is REQUESTED to send a
Order
to a l l
It is
counsel
of
copy of this Opinion and
record.
so ORDERED.
Mark S.
Davis
United States District Judge
Norfolk, Virginia
September
^
, 2016
81
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?