United States District Court, E.D. Virginia, Norfolk Division
OPINION AND ORDER
S. Davis, United States District Judge.
Summer Crump ("Plaintiff" or "Crump"), is
a hearing-impaired former employee of the United States
Department of Navy ("the Navy"}. Plaintiff brought
suit against the Navy, alleging that the Navy violated the
Rehabilitation Act by failing to reasonably accommodate her
in her work as a physician assistant at the Navy's
Sewells Point Branch Medical Clinic ("Sewells Point
Clinic"). Following a two-week jury trial, the jury
returned a verdict in Plaintiff's favor, finding that the
Navy failed to provide Plaintiff a reasonable accommodation,
but awarded Plaintiff no compensatory damages. Verdict Form,
ECF No. 314. The only matter remaining for consideration is
Plaintiff's request for equitable relief in the form of
back pay, front pay, and pre- and post-judgment interest.
Following the conclusion of the jury trial, the Court heard
additional evidence on Plaintiff's request for equitable
relief and the parties have submitted post-trial briefs.
Therefore, Plaintiff's request for equitable relief is
ripe for decision.
suffers from bilateral profound sensorineural hearing loss,
and has utilized cochlear implants for approximately fifteen
years. See Op. & Order, 9-10, ECF No 183; Jury
Trial Tr. Excerpt Vol. I, LeMay Test. 7:11-19, Feb. 17 and
19, 2016, ECF No. 335 [hereinafter "LeMay Test."];
Jury Trial Tr. Excerpt Vol. I, Crump Test. 185:23-186:4, Feb.
17 and 19, 2016, ECF No. 335 [hereinafter "Feb. 19 Crump
Trial Test."]. After obtaining such cochlear implants,
Plaintiff became a licensed physician assistant and has
worked as a physician assistant since she received her
Masters Degree from Eastern Virginia Medical School in 2007.
See Op. & Order at 10; Feb. 19 Crump Trial Test,
at 190:1-3, 193:9-23.
September 14, 2008, the Navy entered into a five-year
contract with third-party contractors, TCoombs &
Associates, LLC and TCMP Health Services, LLC (collectively
"TCA" or "TCMP"), to provide physician
extenders services to Sewells Point Clinic. Contract
(N62645-08-D-5008), AX-1. TCA's contract lapsed in 2013 and,
as of September 4, 2013, Chesapeake Educational Services
contracted to provide physician extenders to Sewells Point
Clinic. Crump Damages Test, at 93:6-21; Contract
N62645-09-D-5021-0025, Chesapeake Educational Services,
hired Plaintiff to provide physician extender services,
under its contract with the Navy, beginning
"on or about June 3, 2010." Letter from TCMP
Offering Employment, AX-99; cf. Feb. 19 Crump Trial
Test, at 195:11-196:23 (credentialing concluded May 19,
2010). When Plaintiff began working at Sewells Point Clinic,
she worked forty hours a week and received $51.00 per hour.
Feb. 19 Crump Trial Test, at 198:24-199:3; Bench Trial Tr.
Excerpt, Crump Test., 3:20-4:2, Feb. 26 and 29, 2016, ECF No.
333 [hereinafter "Crump Damages Test."]; Letter
from TCMP Offering Employment, AX-99. Plaintiff was also
projected to receive an annual raise in September of each
year of her employment, equaling an additional one dollar and
two cents. Crump Damages Test, at 3:20-4:2. Plaintiff
received such raise in September 2010, and her pay was
increased to $52.02 per hour. Id. at 64:16-20.
Plaintiff testified that, while she was working at Sewells
Point Clinic, she received "dental, vision, life
insurance, short-term disability . . . [and] 401(k) benefits,
" id. at 3:20-4:2, and that TCA contributed to
Plaintiff's insurance benefits, id. at
74:23-75:4. Plaintiff also testified during the jury
trial that she received paid time off, sick leave, a
continuing medical education allowance, and a uniform
allowance. Feb. 19 Crump Trial Test, at 201:13-22. Plaintiff
worked at Sewells Point Clinic until she left work for
cochlear implant revision surgery on April 26, 2011. Jury
Trial Tr. Excerpt, Crump Test., 6:4-6, Feb. 22 and 23, 2016,
ECF No. 334 [hereinafter "Feb. 22 Crump Trial
Test."] . At the time she left work at Sewells Point
Clinic, Plaintiff was working forty hours a week and
receiving $52.02 per hour. Crump Damages Test. at 4:3-11.
While out of work for her cochlear implant revision surgery,
Plaintiff was on unpaid leave under the Family and Medical
Leave Act ("FMLA"). Id. at 83:22-84:2.
Plaintiff's Accommodation Requests
recovery from surgery took longer than expected, but she was
cleared to return to work with no medical restrictions on
July 20, 2011. LeMay Test, at 44:7-15; Feb. 22 Crump Trial
Test, at 130:17-131:3; RTW Note (TCA) from LeMay, AX-8.
However, as of July 2011, Plaintiff's full hearing
capabilities had not yet returned. Dr. LeMay explained that,
while Plaintiff was able to return to work without
restrictions, Plaintiff required an accommodation to be
"successful in returning to work" at Sewells Point
Clinic, including reduced noise levels and use of a video
relay service for communication on the telephone. LeMay Test,
at 20:14-24:7, 44:4-45:18; Letter from LeMay (Clinical
Audiologist) regarding Crump Diagnosis, AX-24.
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 27, 2011
and requested several accommodations that would allow her to
return to work, including use of a video relay phone for
making telephone calls. Id. at 11:19-12:15; Email
from Plaintiff to Green, "re: RE: Summer Crump
Accommodations, " AX-22. However, Plaintiff's
accommodations request was not approved immediately and she
was not able to return to work as she had planned. On August
1, 2011, the Navy, through Commander Sarah Neill, approved
Plaintiff's accommodation requests, including the use of
a video relay phone. Email from Marivic Williams to Cynthia
Carpenter on 8/1/11, DX-2. Such approval was later
communicated to Plaintiff. However, installation of the video
relay phone was delayed, 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
Plaintiff, Green, "re: RE: Return of PA Summer Crump,
" AX-33; Email Badura to Crump, "re: RE: RTW,
" AX-101 ("Previously TCMP would not allow me to
RTW without the accommodations due to my
'limitations' under the contract."). On August
16, 2011, Plaintiff was informed by TCA employee Angela Green
that "[s]ince the government approved accommodations, we
have to wait until the installation is complete prior to you
returning FTE." Email from Williams to Plaintiff, Green,
"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 equipment
available ... so that I can coordinate with our
communications dept[.] about actual installation. I guess you
can't come back until all in place." Email from
Badura to Crump dated 8/16/11, "re: Sorenson, "
PX-87; see also Email from Williams to Green,
"re: FW: PA Summer Crump, " AX-26 ("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." Email from Green
to Jackie Harris, Williams, "re: FW: Ntouch, "
AX-29; see Feb. 22 Crump Trial Test, at 21:15-18.
demonstrated at trial, throughout the following months
Plaintiff continued to communicate with TCA and the Navy
regarding her requested accommodations. In response to the
Navy's request, in October 2011, Plaintiff again
submitted her requests for accommodation on a request for
accommodation form, provided to her by the Navy, and she
submitted a proposed meeting agenda regarding her requests
for accommodation. Email from Williams, "re: FW: Summer
Crump, Attachments: Crump Accommodation Request, Completed
Medical Support Information, VRS Interpreter, Request for
Reasonable Accommodation Form, Authorization to Release
Medical Information, " AX-48; Email from Robles to
Carpenter, "re: FW: Summer Crump; Attachments: Request
for Reasonable Accommodation Form, Authorization for Release
of Medical Information, " AX-51. However, as of February
22, 2012, Plaintiff had not received an accommodation and had
not returned to work at Sewells Point Clinic. Thus, on
February 22, 2012, Plaintiff (through her attorney) sent a
letter to the Navy, stating that “if we do not hear
from you within ten (10) days of receipt of this letter, we
will consider our request for accommodation to be
denied." Letter from Sullivan to Neill and Carpenter
dated 2/22/12, "re: Request for Accommodation - Ms.
Summer Crump, " PX-165. Plaintiff did not receive a
response from the Navy within the ten-day period as she
demanded, and consistent with her letter, on April 11, 2012,
Plaintiff initiated equal employment opportunity
("EEO") counseling with the Navy. Feb. 22 Crump
Trial Test, at 38:3-18.
24, 2012, the Navy sent Plaintiff a memorandum, detailing
their response to Plaintiff's October 2011 requests for
accommodation, and such letter included the Navy's offers
of accommodation. Mem. from Navy to Crump, "Re: Status
of Reasonable Accommodation Request, " AX-118. In such
letter, the Navy offered to (1) assign another supporting
staff member to assist Plaintiff in making any telephone
calls; or (2) 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. Id. at 2. Plaintiff, however, did not
receive such letter until June 15, 2012. Feb. 22 Crump Trial
Test, at 41:6-20. Plaintiff was then able to meet with
Commander Neill, and discuss the Navy's offers of
accommodation, during an EEO mediation on June 19, 2012.
Id. at 41:3-5. During the EEO mediation, Plaintiff
expressed to Commander Neill that the Z-150 video phone would
be acceptable and that "it sounded like a great
accommodation." Id. at 42:2-10. In response,
Commander Neill told Plaintiff that she would keep Plaintiff
informed regarding such accommodation and would let Plaintiff
know when the device was installed and when she could return
to work. Id.
the June 19, 2012 mediation, Commander Neill took steps to
request and install the Z-150 video phone. On July 2, 2012,
Commander Neill instructed the Communications Manager at the
Naval Medical Center - 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, "re: N0018311WRNX133, "
AX-106; Email from Taylor to Barnes, "Re: IT Request for
Utilization of Z-150 on NMED Domain, " AX-112. On August
2, 2012, the Navy ordered the Z-150 video phone. Email from
Neill to Taylor, "re: FW: CAP Request #79522 been
ordered - Z-150, " AX-103. The Z-150 video phone was
installed at Sewells Point Clinic as of August 15,
2012. Email from Taylor to Barnes, "Re: IT
request for utilization of Z-150 on NMED Domain, "
27, 2012, having heard nothing from Commander Neill since
their June 19, 2012 mediation, and having received no
confirmation that the promised Z-150 video phone had been
installed and was functional, Plaintiff resigned her position
with TCA. Feb. 22 Crump Trial Test, at 6:7-8, 42:11-12;
Letter from AKS to Neill, "re: Status of Reasonable
Accommodation Request dated May 24, 2012, " 2, AX-107.
Further, on August 9, 2012, Plaintiff communicated her
resignation to the Navy and formally rejected the Navy's
offers of accommodation, as included in the Navy's May
24, 2012 memorandum to Plaintiff. Feb. 22 Crump Trial Test,
at 6:9-10; Letter from AKS to Neill, "re: Status of
Reasonable Accommodation Request dated May 24, 2012, "
AX-107. Lieutenant Commander Badura, Plaintiff's
supervisor and the individual responsible for ordering the
Z-150 video phone, was not aware that Plaintiff had resigned
from TCA, or rejected the Navy's offers of accommodation,
before the installation and testing of the Z-150 video phone
on August 15, 2012. Jury Trial Tr. Excerpt Vol. II, Badura
Test., 281:21-282:8, Feb. 23 and 24, 2016, ECF No. 332
[hereinafter "Badura Test."] .
Plaintiff's Employment Search
she was unable to return to work at Sewells Point Clinic,
Plaintiff began to seek work elsewhere. Crump Damages Test,
at 10:25-13:1. Plaintiff testified that she began searching
for jobs around September 2011 and applied to thirty-five
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, 2011. Id. at 13:2-14.
After the six-week locum tenens position concluded,
CompHealth asked Plaintiff to continue at Halifax Regional
Hospital as a medical provider and she remained on such
assignment until April 2012. Id. After April 2012,
Plaintiff continued to work as-needed as a contractor for
CompHealth until June 2014. Id. at 17:19-18:4. While
employed with CompHealth, Plaintiff made $47.00 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.
Id. at 16:8-12, 17:25-18:8, 62:8-11. Plaintiff
earned $21, 74 9.27 from CompHealth in 2012; Plaintiff earned
$5, 922.50 from CompHealth in 2013; and Plaintiff earned $7,
625.75 from CompHealth in 2014. Final Pretrial Order, 101,
ECF No. 209; Navy's Mem. Regarding Back Pay Award, 5, ECF
No. 324; CompHealth 2013 W-2, PX-248.
Plaintiff's work with CompHealth, Plaintiff continued her
search for better employment closer to her family in the
Hampton Roads area, submitting her resume and contacting
recruiters in February, March, April, and May 2012. Plaintiff
Job Search Documents, PX-213. Plaintiff was offered a
part-time physician assistant position 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. Crump Damages Test, at 18:9-21,
62:25-64:1. Plaintiff began working for Team Health in July
2012. Feb. 22 Crump Trial Test, at 111:22-112:4; Crump
Damages Test, at 62:18-19. While employed at Team Health,
Plaintiff made $53.00 per hour and did not receive any
benefits. Crump Damages Test, at 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 from Team
Health in 2014; and, as of May 14, 2015, Plaintiff had earned
$18, 060.45 at Team Health in 2015. Final Pretrial Order at
101; Navy's Mem. Regarding Back Pay Award at 5; Team
Health 2012 W-2, PX-245.
the same time period, in February 2012, Plaintiff was offered
a physician assistant position with Patient First, working in
urgent care/family practice centers at various Patient First
locations in the local area or as-needed in Richmond or
Northern Virginia. Crump Damages Test, at 20:11-21:11,
63:16-64:1, 65:16-23. Plaintiff began working for Patient
First on a full-time basis in July 2012, after she resigned
from TCA and the Navy. Feb. 22 Crump Trial Test, at 112:5-11.
While employed at Patient First, Plaintiff made a base rate
of $36.00 per hour and received additional pay based upon the
percentage of collectible calls completed during a shift.
Crump Damages Test, at 21:12-14, 67:3-70:21. Plaintiff did
not initially receive benefits from Patient First, but began
to receive benefits on October 1, 2012. Id. at
21:19-22:20. Plaintiff received a raise on August 16, 2014,
and her base pay at Patient First increased to $43.00 per
hour. Id. at 40:3-12.
continued to be employed at Patient First as of the date of
trial; however, the parties presented limited evidence of
Plaintiff's interim earnings between May 2015 and the
date of trial. Pl.'s Br. Supporting Award of Back and
Front Wages, 5 n.21, ECF No. 325; Crump Damages Test, at
37:9-39:20, 99:18-100:10. Plaintiff earned $35, 759.51 from
Patient First in 2012; Plaintiff earned $105, 382.35 from
Patient First in 2013; Plaintiff earned $97, 687.02 from
Patient First in 2014; and, as of May 14, 2015, Plaintiff had
earned $13, 435.31 at Patient First in 2015. Final Pretrial
Order at 101; Navy's Mem. Regarding Back Pay Award at 5;
Patient First 2012 W-2, PX-244; Patient First 2013 W-2,
PX-247; Patient First 2014 W-2, PX-322.
continued to look for "better employment" during
her time at Patient First. Feb. 22 Crump Trial Test, at
44:4-7. Plaintiff received an additional job offer in August
2014 with Bon Secours. Crump Damages Test, at 89:23-90:1;
Plaintiff Job Search Documents, PX-213. However, Plaintiff
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 at such location. Crump
Damages Test, at 91:3-16. Plaintiff was also offered a
position with Pulmonary Critical Care Specialists in October
2014, which she turned down because she had begun considering
a position with Apollo MD. Id. at 91:20-92:10.
was offered a position at Apollo MD on December 7, 2014;
however, due to a delay in Plaintiff's credentialing
process, Plaintiff was not able to begin work at Apollo MD
until July 1, 2015. Id. at 41:15-47:14. Plaintiff
was paid $70.00 per hour for her work with Apollo MD and did
not receive any benefits. Id. at 47:16-22. Plaintiff
continued to be employed at Apollo MD as of the date of
trial; however, as discussed above, the parties presented
limited evidence of Plaintiff's interim earnings between
May 2015 and the date of trial. Id. at 37:9-39:20,
total, Plaintiff earned $60, 463.53 in wages from Patient
First, CompHealth, and Team Health in 2012. Final Pretrial
Order at 101. Plaintiff earned $111, 304.85 in wages from
Patient First and CompHealth in 2013. Id. Plaintiff
earned $118, 487.77 from Patient First, CompHealth, and Team
Health in 2014. Finally, from January 1, 2015 to May 14,
2015, Plaintiff earned $31, 4 95.76 from Patient First and
Team Health. Id. at 100-01.
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
brought under Section 501 of the Rehabilitation Act
incorporate the "remedies, procedures and rights"
established in Title VII of the Civil Rights Act of 1964. 29
U.S.C. § 794a(a)(1); Bonnette v. Shinseki, 907
F.Supp.2d 54, 60 (D.D.C. 2012) (noting that "section 501
of the Rehabilitation Act incorporates section 107 of the
ADA, which in turn incorporates the remedies and procedures
established in Title VII" (citing Woodruff v.
Peters, 482 F.3d 521, 526 (D.C. Cir. 2007); 42 U.S.C.
§ 12117(a))); Op. & Order at 41-42.
Navy has been found by the jury to have engaged in an
unlawful employment practice in violation of the
Rehabilitation Act, "the [C]ourt may enjoin the [Navy]
from engaging in such unlawful employment practice, and order
such affirmative action as may be appropriate, which may
include, but is not limited to, reinstatement or hiring of
employees, with or without back pay ... or any other
equitable relief as the court deems appropriate." 42
U.S.C. § 2000e-5(g)(1). Moreover, as a "general
rule, " the United States Supreme Court has established
that a prevailing plaintiff under Title VII should be awarded
back pay, Dennis v. Columbia Colleton Med. Ctr.,
Inc., 290 F.3d 639, 651 (4th Cir. 2002) (citing
Albemarle Paper Co. v. Moody, 422 U.S. 405, 421
(1975)), and therefore this general rule applies in
Rehabilitation Act cases, Szedlock v. Tenet, 139
F.Supp.2d 725, 732 (E.D. Va. 2001), aff'd, 61
F.App'x 88 (4th Cir. 2003) (citing Albemarle Paper
Co., 422 U.S. at 421). "[G]iven a finding of
unlawful discrimination, back[ ]pay should be denied only for
reasons which, if applied generally, would not frustrate the
central statutory purposes of eradicating discrimination
throughout the economy and making persons whole for injuries
suffered through past discrimination." Albemarle
Paper Co., 422 U.S. at 421 (addressing Title VII claim).
"As part of the process of making the victims of
employment discrimination whole, the offending employer is
made responsible only for losses suffered by the claimant as
a result of the discrimination." Brady v. Thurston
Motor Lines, Inc., 753 F.2d 1269, 1278 (4th Cir. 1985)
(citing Ford Motor Co. v. EEOC, 458 U.S. 219, 231
n.15 (1982)); see Johnson v. Shalala, 991 F.2d 126,
130 (4th Cir. 1993) (explaining in a footnote that "the
specific remedies of back [ ] pay and reinstatement are
dependent upon the proof of some adverse action taken by the
employer"); Holmes v. Wal-Mart Stores E.,
L.P., No. 1:10cv75, 2011 WL 1842868, *8 (E.D. Va. Apr.
27, 2011) (unpublished) (explaining that "it is
well-settled that back pay is an appropriate remedy where
discrimination causes a loss of pay, and reinstatement is
warranted where discrimination causes unlawful
termination" (citations omitted)).
Commencement of the Back Pay Period
award of back pay has been determined to be appropriate, the
back pay period typically commences on the date that the
unlawful employment practice takes place. See McKennon v.
Nashville Banner Pub. Co., 513 U.S. 352, 362 (1995)
("The beginning point in the trial court's
formulation of a remedy should be calculation of back[ ]pay
from the date of the unlawful discharge to the date the new
information was discovered."); Edwards v. Sch. Bd.
of City of Norton, Va., 658 F.2d 951, 954 (4th Cir.
1981) ("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." (citations omitted));
Patterson v. Am. Tobacco Co., 535 F.2d 257, 269 (4th
Cir. 1976) (explaining that a 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, subject to the
applicable statute of limitations" (citations omitted));
see also Kirsch v. Fleet St., Ltd., 148 F.3d 149,
167-68 (2d Cir. 1998) ("A plaintiff who has proven a
discharge in violation of the ADEA is, as a general matter,
entitled to back[ ]pay from the date of discharge until the
date of judgment." (citations omitted)); Thome v.
City of El Segundo, 802 F.2d 1131, 1136-37 (9th Cir.
1986) ("Absent compelling circumstances, when an
employer has refused to hire an employee in violation of that
employee's rights under Title VII, the court should
compute the back[ ]pay award from the date of the
discriminatory act until the date of final judgment."
the unlawful employment action is a failure to provide
reasonable accommodation, courts generally begin the back pay
calculation at the point when a plaintiff begins to suffer
financial loss after, and as a result of, the defendant
employer's failure to accommodate. See Hudson v.
Chertoff, 473 F.Supp.2d 1292, 1300 (S.D. Fla. 2007)
(starting back pay calculation on the date that the plaintiff
was placed on disability leave due to the defendant's
failure to provide a reasonable accommodation);
Szedlock, 139 F.Supp.2d at 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) (allowing
back pay for work days where the plaintiff was sent home
without pay due to the defendant's failure to provide a
reasonable accommodation); cf. Holmes, 2011 WL
1842868, at *8 ("Thus, the fact that the Fourth Circuit
reversed the district court's judgment suggests that,
like hostile work environment claims, failure-to-accommodate
claims do not entitle a plaintiff to recover back pay and
reinstatement unless the failure to accommodate causes a loss
of pay or discharge.").
where an unlawful employment practice is a discrete
discriminatory act, as the Court found during this trial, as
opposed to a continuing discriminatory practice,
a plaintiff may not recover damages caused by such unlawful
act if such act cannot also serve as the basis for liability,
i.e. a plaintiff may not recover damages if the unlawful
conduct is unexhausted or time-barred, even if a plaintiff
may introduce evidence of such conduct for other purposes.
See Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121,
142 (1st Cir. 2009) (explaining that "[a]lthough Liberty
Mutual's [failure to accommodate] conduct outside the
limitations period does not provide a basis for damages,
evidence of such conduct and its effects shed light on the
impact of Liberty Mutual's later refusals to accommodate
Tobin." (citing Nat'l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 113; Ocean Spray Cranberries,
Inc. v. Mass. Comm'n Against Discrimination, 441808
N.E.2d 257, 269-70 (Mass. 2004))). For example, in ADA
cases several courts have limited an award of
equitable damages to damages that arose as a result of
conduct that took place within the 180- or 300-day
period in which an ADA plaintiff must file a charge of
discrimination with the EEOC in order to properly bring his
or her claim in federal court. See McClain v. Lufkin
Indus., Inc., 649 F.3d 374, 385 (5th Cir. 2011)
("We omit discussion of the finer details of the back
pay award except to note that damages commence on March 6,
1994, or 300 days before McClain filed his EEOC
claim. Title VII provides that, except for continuing
violations like harassment, damages may only be awarded for
violations that occurred 300 days before an EEOC charge is
filed." (citing 42 U.S.C. § 2000e-5 (e) (1)));
E.E.O.C. v. Joe's Stone Crabs, Inc., 296 F.3d
1265, 1276 (11th Cir. 2002) (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. City of St. Paul,
Dep't of Fire & Safety Servs., 327 F.3d 771, 784
(8th Cir. 2003) (affirming limitation of damages to damages
which arose as a result of unlawful acts occurring within the
one-year limitations period in which the plaintiff was
required to file a charge of discrimination with the EEOC).
Similarly, in Rehabilitation Act cases, courts have limited
the award 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, 145
F.Supp.2d 1139, 1146 (D.N.D. 2001) (awarding back pay only
for Rehabilitation Act claims which were properly exhausted);
cf. Sutton v. Potter, No. 02cv2702, 2004 WL 603477,
*6 (N.D. 111. Mar. 22, 2004) (unpublished) (finding that the
45-day limitations period for certain discrete acts was
tolled, but limiting the plaintiff's back pay award and
beginning the plaintiff's back pay calculation on the
date that the 45-day limitation period began). Even if a
plaintiff is not bound by a limitations period, some courts
have exercised their discretion to limit a plaintiff's
damages to those damages which arose as a result of
violations that occurred within the otherwise applicable
statutory limitations period. See E.E.0.C. v. Minn.
Pep' t of Corr., 702 F.Supp.2d 1082, 1091 <D.
Minn. 2010), aff'd in part, 648 F.3d 910 (8th
Cir. 2011) (limiting damages to 300-day time period before
plaintiff filed charge of discrimination with the EEOC, even
though EEOC as plaintiff was not subject to that statute of
limitations, because " [i]f that individual had filed
suit, her damages would have been limited by the ADEA's
300-day statute of limitations"). Thus, if a
Rehabilitation Act plaintiff suffers loss as a result of
unlawful conduct, such plaintiff cannot recover damages based
on such conduct if it takes place before the 45-day
limitations period begins.
Duty to Mitigate
the employee fulfills the initial burden of producing
evidence establishing an entitlement to back pay, the burden
shifts to the employer to prove that the employee was not
reasonably diligent, and that a reasonable chance of finding
comparable employment existed." Ford v. Rigidply
Rafters, Inc., 984 F.Supp. 386, 389 (D. Md. 1997)
(citing Donnelly v. Yellow Freight Sys., Inc., 874
F.2d 402, 411 (7th Cir. 1989), aff'd, 494 U.S.
820 (1990)). "Because the failure to mitigate is an
affirmative defense, defendant bears the burden of proof to
show that plaintiff, a victim of unlawful discrimination, has
failed to be 'reasonably diligent in seeking and
accepting new employment substantially equivalent to that
from which she was discharged.'" Szedlock,
139 F.Supp.2d at 734 (quoting Brady, 753 F.2d at
1273) (citing Ford Motor Co., 458 U.S. at 232);
Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1358
(4th Cir. 1995)).
VII plaintiff's duty to mitigate, and thus a
Rehabilitation Act plaintiff's duty to mitigate, is
described at 42 U.S.C § 2000e-5(g)(1), which provides in
pertinent part, that "[i]nterim earnings or amounts
earnable with reasonable diligence by the person or
persons discriminated against shall operate to reduce the
back pay otherwise allowable." Id. (emphasis
added). "This duty [to mitigate], rooted in an ancient
principle of law, requires the claimant to use reasonable
diligence in finding other suitable employment."
Ford Motor Co., 458 U.S. at 231 (footnote omitted) .
Several courts have recognized that a defendant employer may
demonstrate that a plaintiff has failed to mitigate damages
by "'establishing (1) that suitable work existed,
and (2) that the employee did not make reasonable efforts to
obtain it.'" Broadnax v. City of New Haven,
415 F.3d 265, 268 (2d Cir. 2005) (quoting Dailey v.
Societe Generale, 108 F.3d 451, 456 (2d Cir. 1997));
E.E.O.C. v. Ilona of Hungary, Inc., 108 F.3d 1569,
1581 (7th Cir. 1997) (same) (citations omitted); see
Hudson, 473 F.Supp.2d at 1297 ("Generally, the
burden regarding mitigation requires the defendant to prove
that substantially equivalent work was available and that the
employee did not use reasonable diligence to obtain it."
(citations omitted)); Blizzard v. Newport News
Redevelopment & Hous. Auth., 635 F.Supp. 23, 26
(E.D. Va. 1985) ("As noted, the evidence here
demonstrates that after December 1980, 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.2d at 734 (quoting
Brady, 753 F.2d at 1273) . "Indeed, the
claimant 'forfeits his right to back pay if he refuses a
job substantially equivalent to the one he was denied.'
... It is therefore the general rule that a Title VII
claimant's voluntary refusal to seek or accept
substantially equivalent employment, or to remain in such a
job once secured, risks or even insures a loss of back
pay." Brady, 753 F.2d at 1273 (internal
citations omitted). Further, "if [a] plaintiff cannot
find comparable employment, she must seek a different job,
even if it is lower-paying." Szedlock, 139
F.Supp.2d at 734 (citing Ford Motor Co., 458 U.S. at
231; Brady, 753 F.2d at 1274; Donnelly, 874
F.2d at 411).
Conclusion of Back Pay Period
pay calculations typically conclude when judgment is entered
by a court. See Kirsch, 148 F.3d at 167-68 (noting
that a successful plaintiff is "entitled to back[ ]pay
from the date of discharge until the date of judgment."
(citations omitted)); Thome, 802 F.2d at 1136
(explaining that "Absent compelling circumstances, . . .
the court should compute 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 denied a promotion
. . . until he actually receives it, " and, absent the
ability to receive such promotion, a back pay period should
commence "at the time the employee was unlawfully denied
a position until the date of judgment"); accord
Jean-Baptiste v. D.C., 958 F.Supp.2d 37, 44 (D.D.C.
2013) . However, back pay calculations may be cut short if a
defendant employer demonstrates that it made a reasonable
offer of reinstatement and the plaintiff failed to mitigate
damages by refusing such reasonable offer. See Ford Motor
Co., 458 U.S. at 232 ("Consequently, an employer
charged with unlawful discrimination often can toll the
accrual of back[ ]pay liability by unconditionally offering
the claimant the job he sought, and thereby providing him
with an opportunity to minimize damages.");
Brady, 753 F.2d at 1273 ("It is therefore the
general rule that a Title VII claimant's voluntary
refusal to seek or accept substantially equivalent
employment, or to remain in such a job once secured, risks or
even insures a loss of back pay."); accord
Edwards, 658 F.2d at 954. Further, as noted above, an
award of back pay may also be cut short if a defendant
employer demonstrates that a plaintiff failed to properly
mitigate damages by other means, or if a plaintiff
voluntarily removed himself or herself from the labor market.
See Kirsch, 148 F.3d at 168 ("The back[ ]pay
period ends prior to judgment, however, if the plaintiff has
theretofore retired, for *a discriminatee is not entitled to
back pay to the extent that he fails to remain in the labor
market.'" (citations and quotation omitted));
Thome, 802 F.2d at 1136 ("Our court has
recognized, however, that the back[ ]pay period may terminate
earlier if the plaintiff has voluntarily removed herself from
the job market, or rejected the employer's unqualified
offer of reinstatement to the position to which the plaintiff
applied." (internal citations omitted)); cf.
Brady, 753 F.2d at 1273 ("In the case of a
Title VII claimant who has been unlawfully discharged, the
duty to mitigate damages requires that the claimant be
reasonably diligent in seeking and accepting new employment
substantially equivalent to that from which he was
discharged." (citing Ford Motor Co., 458 U.S.
at 232)). Our Court of Appeals does not apply the
"constructive discharge rule, " which denies back
pay to "persons who leave an employer who has committed
intentional discrimination unless it is under conditions of a
constructive discharge." Dennis, 290 F.3d at
651 (citing Spagnuolo v. Whirlpool Corp., 641 F.2d
1109, 1114 (4th Cir. 1981)). Thus, a plaintiff does not
sacrifice an award of back pay simply because he or she was
not constructively discharged. "Instead, [the Fourth
Circuit] simply appl[ies] the general statutory duty located
at 42 U.S.C. § 2000e-5(g) to mitigate employer
damages." Id. (citing Spagnuolo, 641
F.2d at 1114) .
Calculating a Back Pay
calculating a dollar amount for a back pay award, the Court
must determine an amount that "should only make the
wrongly discharged employee monetarily whole under his
employment contract; it should not provide a windfall."
Cline v. Roadway Exp., Inc., 689 F.2d 481, 490 (4th
Cir. 1982); see Ford Motor Co., 458 U.S. at 230
("To this end, § 706(g) aims 'to make the
victims of unlawful discrimination whole' by restoring
them, *so far as possible ... to a position where they would
have been were it not for the unlawful
discrimination.'" (quoting Albemarle Paper
Co., 422 U.S. at 421 (internal quotation omitted))).
"To make the plaintiff whole, the award of back pay
should be the difference between what the employee would have
earned had the wrongful conduct not occurred from the period
of termination to judgment, and the actual earnings during
that period." Ford, 984 F.Supp. at 389 (citing
Horn v. Duke Homes, 755 F.2d 599, 606 (7th Cir.
1985); Cline, 689 F.2d at 489). Thus, a court should
calculate the amount of any back pay award and reduce it by
any amount a plaintiff earns during the back pay period. If a
plaintiff takes a lower paying job during the back pay
period, "[t]he period of back pay entitlement continues
to run during the employment at a lower paying job, with any
earnings deducted from a subsequent back pay award."
Brady, 753 F.2d at 1275 (citing Merriweather v.
Hercules, Inc., 631 F.2d 1161, 1168 (5th Cir. 1980);
Taylor v. Philips Indus., Inc., 593 F.2d 783, 787
(7th Cir. 1979)). "Indeed, under § 706(g), the rule
is that 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.'"
Id.; Taylor v. Republic Servs., Inc., 968
F.Supp.2d 768, 801 (E.D. Va. 2013) (citing Brady,
753 F.2d at 1273).
calculating a back pay award, the Court should include other
kinds of employment compensation, such as fringe benefits and
reasonably anticipated salary increases, in addition to a
plaintiff's base wages or salary. See Long v.
Ringling Bros.-Barnum & Bailey Combined Shows, Inc.,
9 F.3d 340, 343 (4th Cir. 1993) ("Under Title VII a
prevailing plaintiff is entitled to 'make whole'
relief. This may include the value of fringe benefits."
(citations omitted)); Fariss v. Lynchburg Foundry,
769 F.2d 958, 964 (4th Cir. 1985) ("Overwhelming
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
ADEA." (internal quotations omitted)); Hylind v.
Xerox Corp., 31 F.Supp.3d 729, 741-42 (D. Md. 2014),
aff'd, 632 F.App'x 114 (4th Cir. 2015)
(awarding back pay based on plaintiff's "base
salary, [and] the average of the salaries she actually
received in the preceding four years, allowing increases to
reflect reasonably expected salary increases and to account
for inflation and wage growth"); see also Metz v.
Merrill Lynch, Pierce, Fenner & Smith, Inc., 3 9
F.3d 1482, 1493 n.13 (10th Cir. 1994) (listing cases in
support). "In light of Title VII's policy to make
whole a victim of discrimination, the award of back pay
should include not only the straight salary, but raises and
fringe benefits, as well, which Plaintiff would have received
but for the intentional discrimination." Long v.
Ringling Bros.-Barnum & Bailey Combined Shows, 882
F.Supp. 1553, 1561 (D. Md. 1995).
VII, and thus the Rehabilitation Act, also allows for an
award of front pay, as "other equitable relief, "
pursuant to 42 U.S.C. § 2000e-5(g)(1), to compensate a
prevailing plaintiff for future loss of pay. "Although
courts have defined 'front pay' in numerous ways,
front pay is simply money awarded for lost compensation
during the period between judgment and reinstatement or in
lieu of reinstatement." Pollard v. E.I, du Pont de
Nemours & Co., 532 U.S. 843, 846 (2001); accord
Duke v. Uniroyal Inc., 928 F.2d 1413, 1423 (4th Cir.
1991). For example, "[i]n cases in which reinstatement
is not viable because of continuing hostility between the
plaintiff and the employer or its workers, or because of
psychological injuries suffered by the plaintiff as a result
of the discrimination, courts have ordered front pay as a