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Crump v. United States Dept. of Navy

United States District Court, E.D. Virginia, Norfolk Division

September 8, 2016

SUMMER CRUMP, Plaintiff,
v.
UNITED STATES DEPT. OF NAVY, by and through RAY MABUS, SECRETARY OF THE DEPT. OF NAVY, Defendant.

          OPINION AND ORDER

          Mark S. Davis, United States District Judge.

         Plaintiff, Summer Crump ("Plaintiff" or "Crump"), is a hearing-impaired former employee of the United States Department of Navy ("the Navy"}.[1] 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").[2] 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.

         I. FACTUAL BACKGROUND[3]

         Plaintiff 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.

         On 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.[4] 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, PX-306.

         TCA hired Plaintiff to provide physician extender services, [5]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.[6] 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.

         A. Plaintiff's Accommodation Requests

         Plaintiff's 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.

         Plaintiff began seeking such accommodation and to return to work in June 2011.[7] 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."[8] Email from Green to Jackie Harris, Williams, "re: FW: Ntouch, " AX-29; see Feb. 22 Crump Trial Test, at 21:15-18.

         As 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.

         On May 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.

         After 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.[9] Email from Taylor to Barnes, "Re: IT request for utilization of Z-150 on NMED Domain, " AX-112.

         On July 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."] .

         B. Plaintiff's Employment Search

         While 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.

         During 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.

         During 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.[10] 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, 99:18-100:10.

         In 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.

         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 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.

         As the 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)).

         1. Commencement of the Back Pay Period

         Once an 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." (citations omitted)).

         Where 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.").

         Generally, where an unlawful employment practice is a discrete discriminatory act, as the Court found during this trial, as opposed to a continuing discriminatory practice, [11] 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[12] 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.

         2. Duty to Mitigate

         "When 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)).

         A Title 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).

         3. Conclusion of Back Pay Period

         Back 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) .

         4. Calculating a Back Pay Award

         In 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).

         In 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).

         B. Front Pay

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Title VII, and thus the Rehabilitation Act, also allows for an award of front pay, as "other equitable relief, " pursuant to 42 U.S.C. &sect; 2000e-5(g)(1), to compensate a prevailing plaintiff for future loss of pay. "Although courts have defined &#39;front pay&#39; 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 ...


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