EEOC v. Nutri/System, Inc.

• Decision Date: 05 May 1988
• Docket Number: Civ. A. No. 87-0798-A.
• Citation: 685 F. Supp. 568
• Court: U.S. District Court — Eastern District of Virginia
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et al., Plaintiffs, v. NUTRI/SYSTEM, INC., Defendant.

685 F. Supp. 568

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et al., Plaintiffs, v. NUTRI/SYSTEM, INC., Defendant.

Civ. A. No. 87-0798-A.

United States District Court, E.D. Virginia, Alexandria Division.

March 28, 1988.

Memorandum Opinion May 5, 1988.

Paula Newett, Asst. U.S. Atty., Alexandria, Va., for plaintiffs.

Wm. D. Patkus, Fairfax, Va., for Intervenor Bunton.

Douglas E. McKinley, Alexandria, Va., for defendant.

JUDGMENT ORDER

ELLIS, District Judge.

This matter came before the Court for trial on plaintiff Equal Employment Opportunity Commission's (EEOC) and intervenor-plaintiff Wilett Bunton's (intervenor) claim of racial discrimination in employment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17. At the conclusion of the trial, the Court, from the bench, issued findings of fact and conclusions of law with respect to liability. In essence, the Court found that defendant's discharge of intervenor was racially motivated, in violation of Title VII. The parties were then given an opportunity to submit additional memoranda and supporting materials concerning remedies and attorney's fees and costs. 42 U.S.C. § 2000e-5(k). The Court has considered these materials and sets forth its conclusions below. A Memorandum Opinion on the liability and remedy aspects of this case may be issued at a later date.

I. Reinstatement

The EEOC seeks an offer of reinstatement on behalf of intervenor. Intervenor, however, has made unmistakably clear that she has no interest in reemployment with Nutri/System. During her deposition on December 7, 1987, intervenor stated that she was not seeking reinstatement. (See Deposition of Wilett Willis Bunton, at 107 (attached as Exhibit 3 to defendant's Post Trial Memorandum Concerning Remedies)). No evidence was presented at trial to indicate that intervenor desires reemployment with Nutri/System. A reinstatement order under these circumstances is unwarranted and unnecessary. See Bitsouni v. Sheraton Hartford Corp., 33 Fair Empl.Prac.Cas. (BNA) 894 (D.Conn.1983) (court may deny reinstatement where there is no evidence that plaintiff seeks former position). Accordingly, the Court, in the exercise of its discretion, declines to issue a reinstatement order in this case.

II. Backpay

Where, as here, there is a finding of liability under Title VII, the plaintiff's remedy ordinarily includes an award of backpay. Albemarle Paper Co. v. Moody, 422 U.S. 405, 421-22, 95 S.Ct. 2362, 2373, 45 L.Ed.2d 280 (1975). In determining the amount of backpay due, the Court starts with the familiar principles that (i) an award of backpay is usually appropriate where unlawful discrimination is found, (ii) that district courts have discretion in fixing the amount of the award, (iii) that one of the primary purposes of backpay relief is to make the victim of discrimination whole and (iv) that district courts should avoid making speculative awards. Albemarle Paper Co., 422 U.S. at 421-22, 95 S.Ct. at 2373-2374; Leonard v. City of Frankfort Elec. & Water Plant Bd., 752 F.2d 189, 195 (6th Cir.1985); Pollard v. Grinstead, 741 F.2d 73, 75 (4th Cir.1984); Blackwell v. Sun Elec. Corp., 696 F.2d 1176, 1185 (6th Cir.1983). Given the Court's finding of liability and the evidence on lost income, intervenor is entitled to backpay from the defendant in the amount of $51,696.72, with post-judgment interest running from March 28, 1988, at the rate of 6.71 percent, until the judgment is paid. The backpay amount includes pre-judgment interest at the rate of eight percent per annum, compounded quarterly.

Defendant has not carried its burden of demonstrating that intervenor failed to take reasonable steps to mitigate her damages. Edwards v. School Bd. of the City of Norton, 658 F.2d 951, 956 (4th Cir.1981). Therefore, backpay is awarded for the period from March 5, 1982, the date of her termination, to December 31, 1985. The record reflects that after December 31, 1985, intervenor's income, had she remained a Nutri/System center manager, would have been less than the amount she actually earned from other sources.

In calculating the amount of monthly commission income to be added to intervenor's basic salary to yield the amount of backpay due, the Court chose to average five figures representing two percent of gross sales for the Springfield center for the months of December, 1981 ($492.54), January, 1982 ($427.88), February, 1982 ($737.16), March, 1982 ($1559.10) and April, 1982 ($2094.10). The average of these figures equals $1062.16. This amount was then multiplied by three to obtain the quarterly commission figure ($3186.47) and added to the amount of salary intervenor would have earned per quarter ($2500). The resulting sum ($5686.47) was the basis for calculating the amount of backpay due per quarter. Intervenor's actual earnings from other sources per quarter were subtracted from $5686.47. The result was the amount of net backpay due for that quarter. Interest at the rate of eight percent was then applied to these net quarterly figures and compounded quarterly.

Considerations of fairness move the Court, in its discretion, to adopt this means of fixing an appropriate backpay award. Limiting intervenor to her historical 1981 commission income would unfairly deny her the benefit of the advertising campaign defendant instituted early in 1982. On the other hand, giving intervenor credit for commissions earned by her successor from May, 1982 through 1984 would be speculative and give intervenor an undeserved and unwarranted windfall. Cf. Blackwell v. Sun Elec. Corp., 696 F.2d 1176, 1185 (6th Cir.1983) (plaintiff's testimony that he could have earned two to three times his former income in sales territory which was expanded after his discharge was too speculative to support a damage award); Cross v. National Trust Life Ins. Co., 553 F.2d 1026, 1031-32 (6th Cir.1977) (award upheld where district court based backpay on average of compensation during weeks when plaintiffs' earnings were highest, rather than on earnings of white sales agents). Intervenor is not entitled to receive the benefits of her successor's abilities and efforts as part of the backpay award. Therefore, the Court chose to average commissions for December, January and February, the last three full months intervenor worked, as well as March and April, the months following intervenor's discharge. The fairness of selecting this period is manifest: it encompasses the period immediately prior to intervenor's discharge, the period when her earnings were highest, and it includes the two months following her discharge in order to give her the benefit of the advertising campaign commenced while she was still employed.

The Court denies intervenor's request for compensation for accrued sick and personal leave, paid vacation, paid holidays, bonuses, prizes, health and life insurance premiums, and job hunting expenses. Intervenor's evidence on these fringe benefits and expenses was meager and unpersuasive. Hunter v. Westinghouse Elec. Corp., 576 F.Supp. 704, 727 (S.D.Ohio 1983) (lack of evidence amounted to a failure of proof precluding a monetary award for fringe benefits). Therefore, she did not meet her burden of proving that she was denied these benefits or suffered these losses.

III. Injunctive Relief

The injunctive relief requested by the EEOC is granted in part. Defendant is enjoined from engaging in racially discriminatory termination practices with respect to its employees. The injunction does not extend to other employment practices or forms of unlawful discrimination which are not before the Court. See Davis v. Richmond, Fredericksburg & Potomac R.R. Co., 803 F.2d 1322, 1328 (4th Cir.1986) (injunction should be tailored to violation charged). Defendant is also ordered to expunge from its records and files all documents produced after January 1, 1982 regarding substandard job performance on the part of Wilett W. Bunton.

IV. Notice

The EEOC's request for the posting of notice is granted. The notice is attached as an appendix to this Order and shall be conspicuously posted at defendant's Springfield, Virginia center for two months. In accordance with this Order, the notice makes no reference to reinstatement.

V. Attorney's Fees and Costs

A hearing on intervenor's counsel's request for fees and costs has been scheduled for 2:00 p.m. on April 1, 1988. A separate order will be issued on this aspect of the case.

APPENDIX

NOTICE TO EMPLOYEES

POSTED PURSUANT TO AN ORDER

OF THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

In EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v.

NUTRI/SYSTEM, INC., C.A.

No. 87-798-A

Under Section 703 of Title VII of the Civil Rights Act of 1964, as amended:

It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin, or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

WE WILL NOT engage in any of the above acts or practices.

WE WILL NOT discriminate or retaliate in any manner against any person because of opposition to any practice declared unlawful under Title VII or because of the filing of a charge, the giving of testimony or assistance, or the participation in any investigation, proceeding, or hearing under Title VII.

WE WILL maintain and conduct all discharge policies and practices in a manner which does not discriminate on the basis of race.

WE WILL expunge from our records and files any documents produced after January 1,...