Brady v. Thurston Motor Lines, Inc.

• Decision Date: 06 February 1985
• Docket Number: No. 83-1765,83-1765
• Citation: 753 F.2d 1269
• Parties: 36 Fair Empl.Prac.Cas. 1805, 36 Empl. Prac. Dec. P 34,971, 53 USLW 2423 Randy BRADY, James Williams, Michael Fox, Jerry Hunter, Francis Pendergrass, Lacy Mounds, and Chris Watkins, individually and on behalf of all others similarly situated, and Curtiss Crawford and Lorenzo Mosely, Appellees, v. THURSTON MOTOR LINES, INC., Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1269

753 F.2d 1269

36 Fair Empl.Prac.Cas. 1805,

36 Empl. Prac. Dec. P 34,971, 53 USLW 2423

Randy BRADY, James Williams, Michael Fox, Jerry Hunter Francis Pendergrass, Lacy Mounds, and Chris Watkins individually and on behalf of all others similarly situated and Curtiss Crawford and Lorenzo Mosely, Appellees, v. THURSTON MOTOR LINES, INC., Appellant.

No. 83-1765.

United States Court of Appeals Fourth Circuit.

Argued Oct. 3, 1984.

Decided Feb. 6, 1985.

W.T. Cranfill, Jr., Charlotte, N.C. (J.W. Alexander, Jr., Blakeney, Alexander & Machen, Charlotte, N.C., on brief), for appellant.

Michael A. Sheely, Charlotte, N.C., for appellees.

Before RUSSELL, WIDENER and PHILLIPS, Circuit Judges.

WIDENER, Circuit Judge:

In the third appeal of this vigorously contested case, see 726 F.2d 136 affirming in part and reversing in part 532 F.Supp. 893 remand from 673 F.2d 1306, Thurston Motor Lines appeals an order of the district court granting back pay to three former Thurston employees who had prevailed in an employment discrimination action brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e, et seq., and the Civil Rights Act of 1866, 42 U.S.C. Sec. 1981. After a Stage II proceeding before a Special Master, the district court awarded appropriate relief, including reinstatement and back pay to plaintiffs Francis Pendergrass, Randy Brady and James Williams.

On appeal, the sole issue is the quantity of back pay. Thurston does not now deny its duty to fulfill its back pay obligations, but it does contest the district court's determination of the appropriate periods of time for which the plaintiffs are entitled to recover. There are two questions relating to the issue. First, whether a prevailing Title VII plaintiff, after a successful action on account of his discharge, has foregone his back pay entitlement, when, following the discharge, he enrolls as a full-time college student while continuing to seek a full-time job, later accepts full-time, but not comparable, employment while in college, and does not thereafter seek comparable employment. Second, whether a prevailing Title VII plaintiff foregoes his period of back pay entitlement when he obtains similar employment following his discharge and is then terminated for misconduct, for cause. The former question relates to plaintiff Pendergrass; the latter concerns plaintiffs Brady and Williams. We affirm the district court's award of back pay to Pendergrass, but vacate and remand the awards for Brady and Williams.

I Francis Pendergrass

Francis Pendergrass was discharged from Thurston in June 1978. Following his dismissal, Pendergrass received unemployment compensation for a six-month period. During that time, he continued to search for full-time employment through the North Carolina Employment Security Commission. Unable to find a job, he utilized available student aid and enrolled as a full-time college student at Johnson C. Smith University in January 1979.

During his first semester in college, Pendergrass continued to actively seek full-time employment, and would have withdrawn from college had a job opened up. It was not until June 1979 that he obtained work, a temporary construction job which ended at the end of the summer. Pendergrass returned to school that fall on a full-time basis, while continuing to search for full-time second shift employment. In the early fall of 1979, Pendergrass secured work at a local country club. He worked after school hours Monday through Friday from 2:00 p.m. to 9:00 p.m. during the school year. During the summer he worked the same days from 1:00 p.m. until 10:00 p.m. Pendergrass was continuously employed at the country club for the same number of days and hours during the school years of 1979-1980, 1980-1981 and 1981-1982, and the intervening summers. From the time he got his job with the country club he did not seek other employment.

Randy Brady

Randy Brady was dismissed from Thurston in October 1976. He sought work at various places during the months which followed, and received unemployment benefits for that period. He secured a sales position in January 1977. In September 1977, while still employed as a salesman, Brady accepted a position as a full-time supervisor in a warehouse at Thompson-Burke, a textile company. This employment was comparable to that of Thurston.

In January 1978, Brady was discharged from Thompson-Burke for violating stated company policy in the operation of the warehouse. Brady sought employment and was next employed in April 1978 at AEP Industries, where he remained until laid off in April 1981. He again sought employment and was hired by Kraft in June 1981, where he remained employed at the time of the Stage II proceeding.

James Williams

In January 1978, James Williams was discharged by Thurston. Williams received unemployment compensation for several weeks before being hired by Standard Trucking as a warehouseman, a comparable job to that of Thurston. He held that job until January 1979, when he was dismissed for failure to load freight on the right truck, which was his third violation of company rules at Standard Trucking. Standard maintained an organizational policy of giving warnings for an employee's first two violations of company rules and discharging on the third violation. The parties stipulated and the Special Master and the district court found Williams was discharged for cause. Williams' next employment was as a security guard commencing in 1979. He quit the guard job to take a maintenance job, and was subsequently laid off. In March 1980, Williams was hired at Equipment Design and Manufacturing, where he was employed at the time of the Stage II hearing.

II

At the Stage II proceeding, the Special Master took evidence and found that Pendergrass was entitled to back pay from the date of his discharge to the date of his enrollment as a full-time student. The Special Master also concluded that Brady and Williams were entitled to back pay from the date of their discharges by Thurston to the date of their reinstatement by that company, excluding the periods of time they were unemployed following their dismissals from Thompson-Burke and Standard Trucking, respectively. The district court, however, ordered that Pendergrass be awarded back pay for all of his time in college, as well as eliminating the periods of exclusion following discharge from the back pay entitlements of Brady and Williams.

On appeal, Thurston argues that by becoming a full-time college student, Pendergrass removed himself from the regular full-time job market, failed to mitigate the employer's damages, and thus lost entitlement to back pay for that period of time. It also argues that by being discharged for violating the company rules of their subsequent employers, Brady and Williams, in effect, voluntarily terminated their jobs. Thurston maintains this is a violation of the duty to mitigate damages, thereby excluding from back pay awards periods of unemployment following the discharges by the new employers, or ending the back pay entitlement completely.

III

The awarding of back pay in Title VII cases is governed by Section 706(g) of the Civil Rights Act of 1964, 78 Stat. 261, as amended, 42 U.S.C. Sec. 2000e-5(g). The first part of Sec. 706(g) with which we are concerned is:

If the court finds that the respondent has intentionally engaged 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, .... 42 U.S.C. Sec. 2000e-5(g).

In Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280

(1975), the Supreme Court noted that when choosing whether to award back pay, the "District Court's decision must ... be measured against the purposes which inform Title VII." Id. at 417, 95 S.Ct. at 2371. The Court discussed the dual purposes of Title VII as 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.

The Court in Albemarle took notice of the fact that the back pay provision of Title VII "was expressly modeled on the back pay provision of the National Labor Relations Act." Id. at 419, 95 S.Ct. at 2372. In so doing, it recognized that in NLRA cases the National Labor Relations Board had consistently awarded back pay "as a matter of course." Id. at 420, 95 S.Ct. at 2372. The Court found that back pay provisions in both statutes were designed to fulfill the "make whole" purposes of the acts, and concluded that in Title VII cases "back pay should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination." Id. at 421, 95 S.Ct. at 2373.

Thus, the employer here does not contest that the award of some back pay was within the discretion of the district court, or that it was indeed required. At the same time, 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, and the other part of Section 706(g) with which we are concerned provides in pertinent part:

"Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable." 42 U.S.C. Sec. 2000e-5(g).

In the case of a Title VII claimant who has been unlawfully discharged, the duty to mitigate damages requires that the claimant be reasonably diligent in seeking and accepting new employment substantially equivalent to that from which he was discharged. Ford Motor Co. v. EEOC, 458 U.S. 219, 232, 102...