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Brown v. Mountainview Cutters, LLC

United States District Court, W.D. Virginia, Roanoke Division

November 28, 2016

TIFFANY S. BROWN, Plaintiff,


          Hon. Glen E. Conrad Chief United States District Judge

         On September 9, 2016, a jury found for Tiffany S. Brown ("Brown") on her retaliation claim brought pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. Plaintiff has now filed a motion seeking back pay, front pay or reinstatement, and an injunction prohibiting discriminatory employment practices, in addition to a motion for attorneys' fees and costs. For. the following reasons, both motions will be granted in part and denied in part.


         Brown began working for Mountainview Cutters, LLC ("Mountainview Cutters") in February of 2012 as a hair stylist. While at Mountainview Cutters, Brown believed she was the subject of racial discrimination. On December 2, 2012, Brown complained about the perceived discrimination by writing "EEOC" and other words upon a company white board visible to supervisors and other employees. When Brown returned to work on December 4, 2012, Mountainview Cutters terminated her employment.

         Brown filed the instant action on April 27, 2015, claiming race discrimination and retaliation in violation of Title VII. Neither party filed dispositive pre-trial motions, and a bifurcated jury trial was conducted from September 6 through 9, 2016. At trial, an expert opined that many of the "write ups" Brown received for improper behavior-including the negative review that resulted in her termination-could have been written in very close temporal proximity despite the different dates that the documents reflected. Brown also introduced evidence that, after termination, she searched for and applied for jobs in person and online. Evidence of Brown's depression, which she suffered from in 2013, was also introduced. By December 2013, however, Brown obtained another stylist job which commenced in March of 2014. At this job, she was offered a "key holder" position, but she declined this extra responsibility. After taking some business classes, Brown left her job in December of 2014 and opened her own salon in January of 2015.

         Following the liability phase of the bifurcated trial, a jury found for Brown on her retaliation claim. Upon hearing evidence of plaintiff s damages, the jury awarded plaintiff $20, 000 in punitive damages and $0 in compensatory damages. The case is now before the court on Brown's motions for attorneys' fees and costs, and her motions for back pay, front pay, and injunctive relief. The defendant has responded to the motions, and the matters are ripe for review.


         I. Back Pay, Front Pay, and Injunctive Relief

         The dual purposes of Title VII are the "elimination of employment discrimination and the restoration of persons aggrieved to the situation they would have occupied were it not for the unlawful discrimination." Brady v. Thurston Motor Lines, Inc., 753 F.2d 1269, 1273 (4th Cir. 1985) (citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 417 (1975)). A district court has "broad equitable discretion to award back pay, front pay, and interest to effectuate [Title VII's] remedial intentions." Ford v. Rigidply Rafters, Inc., 984 F.Supp. 386, 389 (D. Md. 1997); see Franks v. Bowman Transp. Co., 424 U.S. 747, 763-64 (1976); Albemarle Paper Co., 422 U.S. at 416-17. "A Title VII plaintiff who is unable to find comparable work is entitled to back pay 'as a matter of course.'" Ford, 984 F.Supp. at 389 (quoting Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1358 (4th Cir. 1995)). In a retaliatory discharge case, a back pay award necessarily amounts to the "difference between what the [plaintiff] would have earned had the wrongful [termination] not occurred from the period of termination to judgment, and the [plaintiffs] actual earnings during that period." Id. However, "the right of a successful Title VII plaintiff to claim back pay is limited in degree by the statutory duty to mitigate employer damages." Brady, 753 F.2d at 1273. This duty to mitigate requires the plaintiff to be "reasonably diligent in seeking and accepting new employment substantially equivalent to that from which [s]he was discharged." Id. Because failure to mitigate is an affirmative defense, the defendant bears the burden of proof. Blizzard v. Newport News Redev. and Housing Auth., 635 F.Supp. 23, 26 (E.D. Va. 1985). An employer ordinarily must come forward with evidence that comparable work is available unless the employer can demonstrate that the plaintiff "made no reasonable attempt to find work." Wagner v. Dillard Dent. Stores, Inc., 17 F.App'x 141, 154-53 (4th Cir. 2001).

         Front pay is "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). It "compensate[s] victims of discrimination for the continuing future effects of discrimination until the victim can be made whole." Reed v. Virginia Dep't of Corrections, No. 7:13-CV-00543, 2014 WL 5810463, at *2 (W.D. Va. Nov. 7, 2014). "The award of front pay rests squarely within the district court's discretion, which must be 'tempered' by 'the potential for windfall' to the plaintiff." Id. (quoting Nichols v. Ashland Hosp. Corp., 251 F.3d 496, 504 (4th Cir. 2001)). The court, therefore, "must judiciously scrutinize the record to determine whether future events are sufficiently predictable to justify such an award." Ford, 984 F.Supp. at 392; see Evans v. Larchmont Baptist Church Infant Care Ctr., Inc., 956 F.Supp.2d 695, 708 (E.D. Va. 2013) (declining to award front pay when doing so would require "assum[ing] certain unknowns" and "would [therefore] be unduly speculative and inappropriate").

         Injunctive relief is "uniquely designed" to help prevent employment discrimination. See Spencer v. General Elec. Co., 703 F.Supp. 466, 469 (E.D. Va. 1989). Injunctive relief is not mandatory and is necessary "[o]nly where there are lingering effects or a not insubstantial risk of recurring violations." Id. If, upon examining the circumstances of the case, the court concludes that there exists a "cognizable danger of recurrent violations, " injunctive relief may be granted. Id. (quoting United States v. Hunter, 459 F.2d 205, 210 (4th Cir. 1972)).

         Plaintiff asserts that she is entitled to back pay in the amount of $22, 106.04.[1] Mountainview Cutters argues that Brown failed to mitigate and contends that plaintiff is entitled to only three months of back pay or, at the very most, six. In support of its argument that Brown failed to mitigate her damages, defendant cites to the following facts: (1) that plaintiff submitted an application to a salon in December 2012 knowing that it did not have any openings, (2) that plaintiff accepted a part-time position at a different salon in 2013 despite being offered a "key-holder" position at that same salon, (3) that plaintiff voluntarily left this part-time position in December of 2014, and (4) that plaintiff opened her own business in January of 2015. Mountainview Cutters argues that self-employment is not sufficiently comparable employment to fulfill plaintiff? s duty to mitigate. Brown agrees that she submitted applications to the two salons defendants cite. She also argues that she testified to searching online and using an online portal to apply for various other positions. Additionally, Brown enrolled in once-weekly, hour-and-a-half business classes for two months in 2014 for the purposes of opening her own business, which she did in January of the following year. Brown believes these actions demonstrate a reasonable effort to mitigate.

         The court cannot agree that Brown's award of back pay should be temporally limited to three to six months. The evidence adduced at trial demonstrates that Brown applied for other jobs upon her termination and secured employment in late 2013. Importantly, while defendant argues plaintiff should have obtained comparable employment sooner, it has produced no evidence demonstrating that comparable work was indeed available. See Wagner, 17 F.App'x at 153 ("[A]n employer ordinarily must come forward with evidence that comparable work is available."). Instead, defendant argues that Brown applied to a salon where no positions were available. Def. Resp. at 4, Docket 104. Defendant has also failed to present any evidence supporting its argument that the "key-holder" position Brown declined came with more hours, greater pay, or was otherwise more comparable to Brown's position at Mountainview Cutters. Nor does the court believe that opening one's own business is evidence of a failure to mitigate, as defendant urges. See Coronet Foods. Inc. v. N.L.R.B., 158 F.3d 782, 801 (4th Cir. 1998) ("Self-employment mitigates income loss.") (citing Heinrich Motors. Inc. v. N.L.R.B., 403 F.3d 145, 148 (2d Cir. 1968) ("It is indisputable that self-employment is an adequate and proper way for the injured employee to attempt to mitigate his loss of wages.")). However, Mountainview Cutters has established that, for a portion of 2013, Brown was not reasonably diligent in mitigating her damages. While she was suffering from depression, she did not seek treatment in a reasonable amount of time so that she could continue to find work. The court will adjust plaintiffs award accordingly.

         Brown also seeks prejudgment interest on her back pay award. "Title VII e.uthorizes prejudgment interest as part of the back pay remedy." Loeffler v. Frank, 486 U.S. 549, 557-58 (1988). The court will apply Virginia's six percent statutory judgment rate to this award. See Va. Code § 6.02-302; E.E.O.C. v. Liggett & Myers. Inc., 690 F.2d 1072, 1074 (4th Cir. 1982) (stating that a district court may, in its discretion, choose to apply an interest rate provided for by state law); Cooper v. Pavchex, Inc., 960 F.Supp. 966, 974 (E.D. Va. 1997) (applying the Virginia statutory rate to a Title VII judgment). This interest will also be compounded to reflect the "economic reality" that "[b]ut for [Mountainview Cutters'] conduct, [Brown] would have had access to this money during the back pay period and would have been able to earn interest not ...

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