United States District Court, W.D. Virginia, Roanoke Division
TIFFANY S. BROWN, Plaintiff,
MOUNTAINVIEW CUTTERS, LLC, Defendant.
Glen E. Conrad Chief United States District Judge
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.
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.
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.
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.
Back Pay, Front Pay, and Injunctive Relief
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.
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").
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)).
asserts that she is entitled to back pay in the amount of
$22, 106.04. 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.
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
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 ...