Sellers v. Delgado Community College

Decision Date18 March 1988
Docket NumberNos. 86-3786,87-3215,s. 86-3786
Parties46 Fair Empl.Prac.Cas. 464, 46 Empl. Prac. Dec. P 37,913, 56 USLW 2571, 44 Ed. Law Rep. 1070 Mary Juanita SELLERS, Plaintiff-Appellant/Cross-Appellee, v. DELGADO COMMUNITY COLLEGE and State of Louisiana, Defendants-Appellees/Cross-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

George M. Strickler, Jr., New Orleans, La., for plaintiff-appellant/cross-appellee.

Kendall L. Vick, Asst. Atty. Gen., New Orleans, La., William J. Guste, Jr., Atty. Gen., Baton Rouge, La., Louisiana Dept. of Justice, New Orleans, La., for defendants-appellees/cross-appellants.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before SNEED, * REAVLEY, and JOHNSON, Circuit Judges.

JOHNSON, Circuit Judge:

Successful in her Title VII employment discrimination suit, plaintiff Mary Sellers appeals the magistrate's damage award for a second time. In addition, Sellers appeals the magistrate's order awarding her attorney's fees at a lower rate then requested. Defendant Delgado Community College (DELGADO) ALSO APPEALS THE ORDERS BY THE MAgisTrate awarding sellers back pay and attorney's fees. Because we perceive error in the magistrate's determination of damages, we vacate the judgment and remand for a redetermination of damages. However, discerning no error in the magistrate's order awarding Sellers attorney's fees, we affirm that order.

I. FACTS AND PROCEDURAL HISTORY

In 1982, plaintiff Mary Sellers brought this employment discrimination suit against her previous employer, Delgado, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. After the case was tried by consent before a magistrate, the court entered a judgment finding that Sellers' rights under Title VII had been violated when she had been paid less than a comparably qualified male employee who performed essentially the same job as Sellers. Additionally, the magistrate found that Sellers had been constructively discharged in violation of Title VII.

Following the determination on the merits, the magistrate awarded Sellers back monetary relief. Sellers appealed that award. This Court, concluding that the magistrate's findings were inadequate to support the award, vacated the judgment and remanded for a trial on the damages. Sellers v. Delgado Community College, et al., 781 F.2d 503 (5th Cir.1986). On remand, the magistrate conducted an evidentiary hearing to develop facts pertinent to Sellers' claims for back pay and front pay. As the facts surrounding the constructive discharge of Sellers by Delgado in 1978 are accurately set forth in this Court's previous opinion, Sellers, 781 F.2d at 504, we will not reiterate those facts at this time except as relevant to the calculation of Sellers' back pay award.

Sellers was initially employed by Delgado in 1975. Referred to by some as the Director of Public Information for the college, Sellers' responsibilities included preparing press releases and brochures, and working on school publications. Additionally, Sellers worked on material advertising events and generally coordinated the public relations efforts of Delgado. On July 1, 1976, Delgado hired Michael Whittier, who eventually assumed much of the responsibility for the public relations efforts of Delgado, thereby encroaching on Sellers' work. By May 1977, Whittier and Sellers were performing substantially the same job duties.

Following her unlawful discharge from Delgado in February 1978, Sellers completed the requirements for her master's degree in journalism in July of that same year. Sellers testified that between February 1978 and July 1981 she attempted to find public relations work, but to no avail. The magistrate found Sellers' first documented attempt at obtaining comparable employment to be a letter in October 1978 reflecting an interview at McDonnel Douglas. During this time, however, Sellers was able to obtain a few temporary clerical and secretarial jobs while she continued to look for public relations work.

In July 1981, Sellers was hired as secretary to a public relations officer for Gulf Oil Company in New Orleans, but was subsequently transferred to Gulf's Office of Comptroller as an executive secretary when the public relations office in New Orleans closed. Thereafter, in December 1982, Sellers voluntarily resigned from Gulf, receiving a severance payment of one month's salary. Sellers testified that she left Gulf because there was no chance of advancement to a professional position at Gulf and, if she did not resign, she would be laid off in the future without severance benefits. Following her resignation from Gulf, Sellers continued to seek employment in the public relations field and in November 1983, obtained employment as a "biscuit instructor" at Popeye's Fried Chicken. In August 1984, Sellers resigned from Popeye's and moved to Dallas to seek public relations work. However, by October 1986, Sellers was unable to obtain employment comparable to her position at Delgado, despite her efforts to do so.

After the evidentiary hearing on damages in May 1986, the magistrate awarded back monetary relief to Sellers, calculating the award of back pay by comparing Sellers' earnings with those of Whittier during the same period. For the period between May 1977, the date the duties of Sellers and Whittier merged, and December 1982, the date Sellers resigned her position at Gulf, the magistrate awarded Sellers the difference between Sellers' earnings and those of Whittier. However, the magistrate "tolled" Sellers' back pay award between January 1983 and November 1983, the period immediately following Sellers' resignation from Gulf, concluding that Sellers effectively removed herself from the job market by resigning from Gulf and thereby failed to mitigate her damages. Between November 1983 and July 1984, the period Sellers was employed as a "biscuit instructor" at Popeye's, the magistrate concluded that Sellers had "reentered" the job market and was therefore entitled to back pay; however, the magistrate calculated the award by comparing Whittier's earnings with those Sellers would have been earning had she remained at Gulf, reasoning that "it is probable that [Sellers] would still be working at Gulf had she not quit."

The magistrate further "tolled" Sellers' back pay award for the period between July 1984 and December 1984, once again concluding that Sellers had effectively removed herself from the job market by resigning from Popeye's. Determining that Sellers had reentered the job market as of January 1985, the magistrate awarded back pay after that date, but again based on what Sellers would have been earning had she retained her position at Gulf. The magistrate also awarded Sellers lost retirement and health benefits, less the amount of benefits earned during the time Sellers' back pay award was tolled.

As to Sellers' claim for front pay, the magistrate concluded that had Sellers remained at Gulf, she would more than likely have obtained her "rightful place" by the date of the evidentiary hearing in May 1986 and therefore, denied front pay. Additionally, the magistrate denied a request by Sellers for prejudgment interest on her back pay award, holding that "although the facts were sufficient to support a finding of constructive discharge, there was no evidence that (Delgado's) officers intended by their discriminatory actions that (Sellers) resign or be fired." Both Sellers and Delgado appeal the magistrate's damage award to this Court.

On appeal, Sellers contends that the magistrate erred in (1) treating her resignations from Gulf and Popeye's as failures to mitigate damages and thereby reducing her back pay award; (2) denying prejudgment interest on the award of back pay; and (3) denying her claim for front pay, despite the fact that she has been unable to obtain employment substantially comparable to the position she held at Delgado. On cross-appeal, Delgado asserts that the magistrate erred in awarding Sellers back pay (1) when the evidence allegedly proves she would not have received a salary comparable to that of Whittier even absent discrimination; (2) when she was not justified in leaving Delgado; and (3) when she failed to mitigate her damages by diligently seeking employment. Delgado further contends that the magistrate erred by awarding back pay to Sellers on the basis of a finding that Delgado did not demonstrate that there were any substantially comparable positions available to Sellers during the period she allegedly failed to mitigate damages.

II. DISCUSSION
A. Back Pay Award

Section 706(g) of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sec. 2000e-5(g) permits an award of back pay to victims of unlawful discrimination. In pertinent part, section 706(g) provides:

If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent 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,.... Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission. Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.

The Supreme Court has noted that under section 706(g), back pay is not an automatic remedy, but is equitable in nature and may be invoked in the sound discretion of the district court. Ford Motor Co. v. E.E.O.C., 458 U.S. 219, 226, 102 S.Ct. 3057, 3063, 73 L.Ed.2d 721 (1982). This discretion, however, must be exercised in light of the large objectives of the Act, and, "must be guided by 'meaningful standards' enforced by 'thorough appellate...

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