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Tinsley v. City of Charlotte

United States District Court, W.D. North Carolina, Charlotte Division

April 26, 2019



          Graham C. Mullen United States District Judge

         THIS MATTER COMES before this Court to determine the appropriate equitable remedies in this case. The Court held a hearing in this matter on April 10, 2019. Prior to the hearing, the Parties each submitted briefs outlining their positions. The matter is now ripe for disposition.


         Michael Tinsley (“Plaintiff”) sued the City of Charlotte (“Defendant”) for race and sex discrimination under Title VII and Section 1983. 42 U.S.C. Section 2000e et seq (“Title VII”); 42 U.S.C. §1983 (“Section 1983”). After a jury trial, the jury returned a verdict in favor of Plaintiff on the sex discrimination claim (Doc. No. 86). Plaintiff requested the equitable remedies of backpay, front pay, and certain injunctive relief. Each will be discussed below.


         a. Backpay

         A successful Title VII litigant is presumptively entitled to a backpay award. Albemarle Paper Company v. Moody, 422 U.S. 405, 421 (1975). Title VII allows backpay as a part of the statutory goal to make an aggrieved plaintiff whole after a finding of discrimination. Id. at 419. Any award of backpay, however, is contingent upon a plaintiff satisfying his statutory duty to mitigate damages. Ford Motor Co. v. EEOC, 458 U.S. 219, 231-32 (1982). In satisfying his duty to mitigate, a plaintiff must “use reasonable diligence in finding other suitable employment.” Id. at 231. “Although the unemployed or underemployed claimant need not go into another line of work, accept a demotion, or take a demeaning position, he forfeits his right to backpay if he refuses a job substantially equivalent to the one he was denied.” Id.

         1. Mitigation

         Defendant argued that backpay is inappropriate in this case because Plaintiff failed to mitigate his damages. Defendant bears the burden of proving that Plaintiff failed to mitigate his damages. Hutchison v. Amateur Electronic Supply, Inc., 42 F.3d 1037, 1044 (7th Cir. 1994). To show a failure to mitigate, a defendant must prove: “1) the plaintiff failed to exercise reasonable diligence to mitigate her damages, and (2) there was a reasonable likelihood that the plaintiff might have found comparable work by exercising reasonable diligence.” Id.

         The Court finds that Defendant failed to make the required showing. Evidence at the trial and hearing showed that Plaintiff registered for four different job recruitment websites. Additionally, Plaintiff testified that he placed resumes with different temporary employment agencies. Plaintiff applied for several jobs that were comparable to his employment with the police department including jobs investigating money laundering for banks and false insurance claims for insurance companies. Finally, Plaintiff credibly testified that he spoke with two different police departments to inquire about employment. During those conversations, the police departments told Plaintiff he was ineligible for employment due to his termination with Defendant.

         The Court finds Plaintiff's evidence of mitigation credible. Further, the evidence provided by Plaintiff shows that he diligently attempted to find comparable employment. Defendant offered statistical evidence to show that Plaintiff should have been able to find comparable, full-time employment within 33.7 weeks.[1] Defendant's evidence failed to account for the consequences associated with a termination on Plaintiff's record. Plaintiff utilized reasonable diligence, but Defendant's discriminatory termination prevented him from obtaining employment at every turn. Defendant cannot now fault Plaintiff for an inability to find comparable work when it was Defendant's discriminatory conduct that prevented Plaintiff from obtaining such work in the first place. Thus, the Court finds Plaintiff utilized reasonable diligence in mitigating his damages.

         2. After-Acquired Evidence

         Defendant also argues that both backpay and front pay are inappropriate because of the after-acquired evidence rule. The Supreme Court has held that after-acquired evidence can limit a damages award in certain instances. McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (1995). In order to prove this defense, an employer must show that the employer discovered evidence after a termination, of an act so egregious that the plaintiff would have been fired without discriminatory considerations. Id. at 359-62. Here, Defendant argues that Plaintiff's trial admissions of violations of policy serve as such after-acquired evidence. The Court disagrees.

         At trial, Plaintiff admitted to violating several policies of Defendant. Most of the violations dealt with tardiness or other attendance issues while others involved an apparent misunderstanding of Defendant's policies.[2] Even assuming for purposes of this opinion that those admissions constitute after-acquired evidence, Defendant failed to make a showing that Plaintiff's admitted acts were “so grave that [Plaintiff's] immediate discharge would have followed [their] disclosure.” Id. at 356. Rather, evidence on the record shows that other police officers also violated the same or similar policies and were not terminated. Thus, Defendant cannot make the necessary showing that Plaintiff would have been terminated if Plaintiff admitted to the violations during his employment with Defendant. Without this showing, the Court finds that Defendant failed to establish the after-acquired evidence defense in this case.

         In the alternative, the Court finds that the jury verdict precludes applicability of the after-acquired evidence rule to these facts. Plaintiff admitted to several policy violations during the trial. Defendant argues that had Plaintiff admitted he violated policy during his employment with Defendant, Plaintiff “would have certainly been terminated.” (Doc. No. 90, p. 4). However, the jury in this matter heard Plaintiff's admissions. Even after hearing Plaintiff admit to several policy violations, the jury found that Defendant would not have fired Plaintiff without consideration of his sex. (Doc. No. 86). By now arguing that Defendant would have fired Plaintiff based only on the admitted violations, Defendant invites this Court to reweigh the evidence. The Court will not accept this invitation. Fact finding is the sole province of the jury in this matter, and the Court finds that the jury verdict precludes the applicability of the after-acquired evidence rule on these facts.

         Therefore, the Court finds the after-acquired evidence rule does not apply in this case. First, Defendant failed to show that any after-acquired evidence proved the existence an act so egregious that it would certainly have led to Plaintiff's immediate termination. In the alternative, the jury found that Defendant would not have fired Plaintiff without consideration of his sex which precludes Defendant's argument at this stage.

         3. Backpay Period

         Having found that backpay should be awarded, the Court must now determine the appropriate amount of backpay to award to the Plaintiff. The period in which backpay is appropriate begins on the date the unlawful employment action took place and ends on the day of the judgment. Patterson v. American Tobacco Company, 535 F.2d 257, 269 (4th Cir. 1976). Courts calculate backpay by taking the sum of wages and benefits that would have been earned absent the discriminatory conduct minus any money actually earned during that time period. 42 U.S.C. § 2000e-5(g). The Court will also apply pre-judgment interest in the amount of eight percent pursuant to North Carolina state law. See N.C. Gen. Stat. Ann. § 24-1; Quesinberry v. Life Ins. Co. of N. Am., 987 F.2d 1017, 1031 (4th Cir. 1993) (en banc) (affirming application of Virginia's statutory interest rate); Hylind v. Xerox Corp., 31 F.Supp.3d 729, 742 (D. Md. 2014), aff'd, 632 Fed. App'x 114 (4th Cir. 2015) (applying Maryland's statutory interest rate).

         4. Backpay Calculation

         Applying the above formula, Plaintiff is entitled to $699, 820.00 in backpay. Defendant provided Plaintiff with a document during discovery that outlined Plaintiff's projected earnings, including benefits, had he continued work as a police officer. The total amount of wages and benefits he would have earned had he continued as a police officer totaled $593, 960.00 during the appropriate period. Plaintiff actually earned $40, 322.00 during that same time period for a difference of $553, 638.00. The difference, adjusted to include pre-judgment interest, is $699, 820.00.

         Defendant argued that the above number is erroneous for two main reasons: (1) Plaintiff failed to properly mitigate and the number should be lowered to account for the failed mitigation, and (2) the backpay award should not consider all benefits available to Plaintiff as a police officer. The Court has already ruled that Plaintiff sufficiently mitigated his damages so the Court will not repeat that analysis here.

         The Court will provide a separate discussion of Defendant's second argument, however. Defendant called an expert who opined on the backpay award Plaintiff should receive. Defendant's expert considered only wages and “legally required benefits” in coming to the amount Plaintiff would have earned had he continued as a police officer. In adopting this number, Defendant advocated for the position that Plaintiff should only receive his wages and “legally required benefits” rather than his wages and fringe benefits he would have been entitled to had he continued his employment. Specifically, Defendant's expert excluded fringe benefits such as vacation time and health insurance amongst others.

         The Court disagrees with this position. "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…." Fariss v. Lynchburg Foundry, 769 F.2d 958, 964 (4th Cir. 1985) (allowing fringe benefits to be recovered in ADEA case). The purpose of the enforcement mechanisms of Title VII are to make plaintiffs whole after discriminatory action from employers. Albemarle, 422 U.S. at 418. In order to achieve that goal, the Court finds that fringe benefits should ...

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