Shore v. Federal Exp. Corp.

• Decision Date: 19 December 1994
• Docket Number: Nos. 93-5548,93-5693,s. 93-5548
• Citation: 42 F.3d 373
• Parties: 67 Fair Empl.Prac.Cas. (BNA) 325, 66 Empl. Prac. Dec. P 43,514 Sophia SHORE, Plaintiff-Appellant, Cross-Appellee, v. FEDERAL EXPRESS CORPORATION, Defendant-Appellee, Cross-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 373

42 F.3d 373

67 Fair Empl.Prac.Cas. (BNA) 325,

66 Empl. Prac. Dec. P 43,514

Sophia SHORE, Plaintiff-Appellant, Cross-Appellee, v. FEDERAL EXPRESS CORPORATION, Defendant-Appellee, Cross-Appellant.

Nos. 93-5548, 93-5693.

United States Court of Appeals Sixth Circuit.

Argued Aug. 8, 1994.

Decided Dec. 19, 1994.

James F. Schaeffer (argued and briefed), Cordova, TN, for Sophia Shore.

Connie L. Lensing (argued and briefed), Federal Exp. Corp., Memphis, TN, for Federal Exp. Corp.

Before: JONES and BATCHELDER, Circuit Judges; and JOINER, District Judge. ^*

NATHANIEL R. JONES, Circuit Judge.

In this Title VII case, which is now before us for the third time, the parties dispute the amount of Plaintiff's front pay award. We affirm in part and reverse in part, and remand for further proceedings.

I.

Detailed descriptions of the underlying facts of this case are set forth in Shore v. Federal Express, 589 F.Supp. 662, 663-66 (W.D.Tenn.1984), and in Shore v. Federal Express, 777 F.2d 1155, 1156 (6th Cir.1985), and need not be repeated here. For present purposes, it suffices to note that, in June 1980, Defendant-Appellee, Cross-Appellant Federal Express Corporation unlawfully discriminated against Plaintiff-Appellant, Cross-Appellee Sophia Shore by firing her from her job as "MBO Analyst," ¹ a position for which she could not have qualified based solely upon her formal training and education, but in which she nevertheless excelled.

In 1981, Shore initiated the present suit under Title VII of the 1964 Civil Rights Act, 42 U.S.C. Sec. 2000e et seq. The district court found this to be a "classic case of disparate treatment based on sex," and awarded Shore back pay, interest, and attorney fees. Shore, 589 F.Supp. at 667-68. Furthermore, "because of the hostility of defendant toward plaintiff," the court found that reinstatement would be inappropriate. Id. at 668. In lieu of reinstatement, the court awarded five years of front pay. Id.

On appeal, we affirmed all but the front pay portion of the district court's award. We held, first, that "intentional discrimination exists in this case." Shore, 777 F.2d at 1157. Second, we rejected Federal Express's argument that Shore's refusal to accept alternative jobs offered by Federal Express constituted a "failure to mitigate damages" because we found that the alternative jobs were not comparable. Id. at 1157-58. Finally, we found that the lower court failed to indicate the basis for cutting off the front pay award after five years. We explained that while determination of the cut-off date was within the discretion of the trial court, there should be some indication of how the court calculated the amount of the award. Accordingly, we remanded for further findings on the issue of front pay. Id. at 1160.

On remand, the district court stressed that "[t]he job of MBO Analyst from which [Shore] was fired was the best job she could have based upon her experience and formal education," and that it was "extremely unlikely" that Shore would ever find an employment opportunity comparable to this "unique" position. J.A. at 52, 55 (Further Findings and Conclusions on Remand, August 28, 1986). The court noted that Shore was then working as a secretary, id. at 54, and held that Shore should receive as front pay "the difference between what she has earned since the earlier judgment and will earn and what she would have earned as the MBO Analyst of the defendant company until she is sixty-five years old, an appropriate end of her work expectancy." Id. at 52-53. The court further held that Shore was not entitled to normal employee benefits from Federal Express during her period of front pay. Rather, the court expected Shore to pay for her own "benefits" even if doing so may cost more. Id. at 53.

After a series of delays, the court's judgment awarding front pay was finally entered on June 9, 1988. On May 11, 1989, we affirmed "upon the reasoning set forth" by the district court. Federal Express's petition for rehearing en banc was subsequently denied.

Meanwhile, a few days after the entry of the June 1988 judgment, Shore quit her job as a legal secretary at the firm of Udelsohn, Blaylock & Marlow, where she had been working for approximately five years. She later testified that she quit because of an oppressive workload and in order to enable her to apply for a position more comparable to her former MBO Analyst job. However, the record indicates that she was required only to work a normal work day, received a 1 hour lunch break, typically left work at 5 p.m., and was only asked to work overtime twice. The record also shows that she was very active in her search for a better job while she was working as a secretary.

From June to August 1988, Shore sent out 36 letters seeking employment and received 11 interviews. On September 1, 1988, she accepted a job as an administrative assistant with VHA Long Term Care. However, she soon discovered that the job was menial and mundane, and she quit two months later. She decided that she would never again accept employment as a secretary, nor would she work in what she regarded as a menial capacity. Except for a few assignments as a temporary worker with Manpower of Shelby County, she remained unemployed from November 1988 to January 1990. She sent out 15 letters in November 1988, 8 letters in December, 8 again in January 1989, 2 in April, and 14 in July. Except for one letter sent in October 1989, she sent no more letters for the next two years.

From February 1990 to June 1991, Shore invested her back-pay award into a dance studio in partnership with Frank Holeman, an experienced dance instructor. Holeman was in bankruptcy at the time, and Shore was the sole investor. Neither Shore nor Holeman had any experience in business akin to operating a dance studio, and the record suggests that Holeman was exploiting Shore. J.A. at 164-67 (Tr. transcript of Shore's testimony). The venture never made any profit.

In October 1990, Federal Express moved to terminate Shore's front pay award, arguing that Shore had failed to mitigate damages. Shore denied that she had failed to mitigate, and asserted instead that Federal Express should pay her the full difference between what she would have earned as an MBO analyst and the minimal amount she actually earned.

In July 1991, Shore sent out one letter seeking employment. She sent no more letters in 1991, but she sent 2 letters in January, 6 in February, and three in May, 1992. As of that time, she had not updated her resume since 1988. In June 1992, the court held a hearing on the question of whether to terminate the front pay award. At that time, Shore was training to qualify for a job with a casino in Mississippi. ²

In February 1993, the court issued a "Ruling on Front Pay and Interest Due the Plaintiff for a Portion of 1988 through June 30, 1992." J.A. at 23-45. In this ruling, the court rejected both parties' theories. The court explained that, under Sixth Circuit precedent regarding front pay, a claimant's duty is "to look for and accept employment substantially equivalent to that from which she was discriminatorily fired." J.A. at 30 (citing Ford v. Nicks, 866 F.2d 865 (6th Cir.1989)). However, because the MBO Analyst job was unique and it would be "extremely unlikely" that Shore could obtain an equivalent job, the court found that Shore's duty to mitigate was limited. Id. at 31. The court held that Shore's position as a legal secretary represented "satisfactory mitigation," and that Shore had acted unreasonably in leaving this job, and in subsequently leaving the VHA administrative assistant job. Further, the court held that Shore's dance studio venture was also unreasonable. Therefore, the court concluded, her loss of earnings from 1988 to June 1992 was her responsibility, and Federal Express was not liable for it.

However, the court also rejected Federal Express's contention that Shore's decision not to seek further employment as a secretary, and her subsequent efforts at finding a position comparable to her MBO Analyst job, were unreasonable. Consequently, the court held that Federal Express continued to be liable for the difference between what she would have made as an MBO Analyst at Federal Express, and what she would have made as a legal secretary at Udelsohn, Blaylock & Marlow.

The court further held, inter alia, that Shore was not entitled to prejudgment interest insofar as she and her attorneys shared some, but not all, of the responsibility for the various delays in reaching a judgment. Finally, with regard to attorney fees, the court held that Shore was entitled to recover only 50% of the fees charged by her then-current attorney.

The court's ruling was reduced to judgment in March 1993, which was subsequently corrected in April 1993. This appeal followed.

II.

On appeal, Shore contends the following: (1) she is entitled to front pay during the relevant period of the full difference between what she would have made as MBO Analyst at Federal Express and what she actually earned; (2) her front pay award should include pension benefits; (3) the lower court erred in denying prejudgment interest; and (4) it erred by declining to award her 100% of her attorney fees. On cross-appeal, Federal Express contends that its liability for front pay should have ceased when Shore unreasonably left her position at Udelsohn, Blaylock & Marlow, and that the court should not have awarded Shore any attorney fees with regard to the June 1992 proceedings or thereafter.

A. Duty to Mitigate Front Pay

Upon a finding of invidious discrimination in violation of Title VII, a district court has "wide discretion" with regard to imposing equitable remedies so as "to fashion the most complete relief possible" designed to "make the victims of unlawful discrimination whole." Albemarle Paper Co. v. Moody, 422 U.S. 405, 421, 95 S.Ct. 2362, 2373, 45 L.Ed.2d 280 (1975) (quoting 118 Cong.Rec. 7168 (1972)). Consequently, an...