Ford v. Rigidply Rafters, Inc.

• Decision Date: 24 November 1997
• Docket Number: No. CIV. Y-96-1699.,CIV. Y-96-1699.
• Parties: James F. FORD, v. RIGIDPLY RAFTERS, INC. et al.
• Court: U.S. District Court — District of Maryland

984 F.Supp. 386

James F. FORD, v. RIGIDPLY RAFTERS, INC. et al.

No. CIV. Y-96-1699.

United States District Court, D. Maryland.

November 24, 1997.

COPYRIGHT MATERIAL OMITTED

Paul F. Evelius, Baltimore, MD, for Plaintiff.

Gorman E. Getty, III, Jeffrey S. Getty, Cumberland, MD, for Defendants.

MEMORANDUM OPINION

JOSEPH H. YOUNG, Senior District Judge.

I.

Plaintiff James F. Ford brought this Title VII same-sex sexual harassment suit against Rigidply Rafters, Inc. ("Rigidply") and two of its employees in May 1996. Plaintiff alleged that on several occasions Rigidply employee Leonard Orendorf sexually harassed Plaintiff at Rigidply. A jury trial was held in June 1997, at which time the jury returned a verdict for Plaintiff, finding that Orendorf had not sexually harassed Plaintiff, but that Rigidply retaliated against Plaintiff in response to his allegations of sexual harassment, in violation of Title VII. The jury awarded Plaintiff $15,000 in compensatory damages.

The Court had instructed the jury not to consider awarding back pay, pre-judgment interest, and reinstatement or front pay, because those equitable remedies are vested within the Court's discretion. Franks v. Bowman Transportation Co., 424 U.S. 747, 763-64, 96 S.Ct. 1251, 1263-64, 47 L.Ed.2d 444 (1976). The case is now before the Court on Plaintiff's motion for back pay, interest, and reinstatement or front pay. Plaintiff seeks $46,159 in back pay, $4,738 in pre-judgment interest, and reinstatement or $18,915 in front pay.

Certain facts established at trial or undisputed are relevant in resolving the pending motion. Rigidply terminated Plaintiff on February 11, 1994. Plaintiff earned approximately $18,500 annually at Rigidply. Following his termination, Plaintiff actively sought employment through August 1994 but was unsuccessful because Rigidply allegedly gave potential employers bad references in retaliation for pursuing his Title VII claim. Apparently frustrated by his inability to find work, Plaintiff performed odd jobs from September 1994 through March 1995, earning approximately $1,000. From April 1995 through July 1995, Plaintiff worked for Patterson's Boat Company, earning $1,626. From July 1995 through December 1995, Plaintiff continued doing odd jobs, earning an additional $3,000. From October 1995 through August 1996, Plaintiff and his wife managed a local diner which did not pay an hourly wage, and ultimately closed for lack of business. In August 1996, Plaintiff had hip surgery, and was unable to work until January 28, 1997. From January 1997 until the June 1997 trial, Plaintiff sought work, ultimately obtaining employment as a church custodian and at a Food Lion supermarket. Plaintiff remains in each organization's employ, earning approximately $265 per week. Based upon his current salary Plaintiff expects to earn approximately $14,000 per year.

II.

A.

Plaintiff seeks $46,159 in back pay representing the difference between what he would have earned had he not been discharged from Rigidply ($53,007) and his actual earnings ($6,848) from the time of his discharge until the date of the jury's verdict. Rigidply contends Plaintiff is not entitled to back pay from August 1994 until the trial because he did not actively seek employment and had hip surgery. Rigidply notes that Plaintiff received four offers of employment when he sought a full-time position after his surgery and points to Plaintiffs 1994 and 1995 tax returns, on which Plaintiff listed his occupation as "disabled."

Title VII is a broad remedial statute designed to "make whole" victims of discrimination, and the Supreme Court has emphasized that the district courts have broad equitable discretion to award back pay, front pay, and interest to effectuate the statute's remedial intentions. Franks v. Bowman Transp. Co., 424 U.S. 747, 763-64, 96 S.Ct. 1251, 1263-64, 47 L.Ed.2d 444 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 416-17, 95 S.Ct. 2362, 2371, 45 L.Ed.2d 280 (1975). A Title VII plaintiff who is unable to find comparable work is entitled to back pay "as a matter of course" unless the defendant produces evidence that plaintiff did not use reasonable efforts to mitigate damages. Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1358 (4th Cir.1995) (citing Ford Motor Co. v. EEOC, 458 U.S. 219, 231, 102 S.Ct. 3057, 3065, 73 L.Ed.2d 721 (1982)). To make the plaintiff whole, the award of back pay should be the difference between what the employee would have earned had the wrongful conduct not occurred from the period of termination to judgment, and the actual earnings during that period. Horn v. Duke Homes, 755 F.2d 599, 606 (7th Cir.1985); see also Cline v. Roadway Express, Inc., 689 F.2d 481, 489 (4th Cir.1982) (finding this method proper in an ADEA discrimination case).

When the unlawfully-discharged employee produces evidence supporting the claim for back pay, the employer may defeat the claim by proving that the employee failed to mitigate damages by seeking comparable work. Edwards v. School Bd. of Norton, 658 F.2d 951, 956 (4th Cir.1981); Martin, 48 F.3d at 1358. When the employee fulfills the initial burden of producing evidence establishing an entitlement to back pay, the burden shifts to the employer to prove that the employee was not reasonably diligent, and that a reasonable chance of finding comparable employment existed. Donnelly v. Yellow Freight Sys., Inc., 874 F.2d 402, 411 (7th Cir.1989), aff'd, 494 U.S. 820, 110 S.Ct. 1566, 108 L.Ed.2d 834 (1990).

Plaintiff has presented evidence of his past earnings and has documented his attempts to find comparable employment since his termination from Rigidply. Defendant does not dispute these factual assertions, and the Court adopts them as findings of fact. It is undisputed that Plaintiff would have earned $53,007 at Rigidply during the period from his termination until judgment, and that he actually earned $6,848 during that period. Plaintiff has thus satisfied his burden of producing evidence supporting his claim for back pay.

Rigidply argues Plaintiff was not reasonably diligent in seeking comparable employment. Rigidply summarily concludes Plaintiff did not seek employment from August 1994 until 1997 and that Plaintiff claimed to be "disabled" on his tax returns. Plaintiff testified in his deposition that he stopped looking for employment after August 1994 (Def. Mot. Ex. 1, Ford Dep., at 1012). Plaintiff's proffered reason, however, was his belief that Rigidply was providing bad references about Plaintiff to potential employers (Id.; Pl.'s Mot. Ex. A, ¶ 3). This assertion is supported by the record. Orendorf acknowledges receiving several phone calls from potential employers of Plaintiff requesting references, and that he gave at least one reference during Plaintiff's job search in which he warned a potential employer to "be careful" of Plaintiff (Pl.'s Mot. Ex. B, Orendorf Dep., at 67-69). He also admitted at his deposition that he may have made the same statement to other employers seeking references (Id. at 67-69). Moreover, Orendorf testified that he gave the bad reference because Plaintiff was, in his words, "suit happy" (Id. at 69). This testimony demonstrates that Rigidply did in fact provide bad references to Plaintiffs potential employers solely because Plaintiff chose to pursue his Title VII claim and, consistent with the jury's verdict, demonstrates Rigidply's unlawful retaliation against Plaintiff. See Rutherford v. American Bank of Commerce, 565 F.2d 1162, 1164 (10th Cir.1977) (sustaining trial court's finding that giving former employee bad reference in retaliation for filing suit violated Title VII); Pantchenko v. C.B. Dolge Co., 581 F.2d 1052, 1055 (2d Cir.1978) (same for refusing to provide reference).¹ Rigidply, arguing that Plaintiff was not duly diligent in pursuing comparable employment when its own employees likely caused Plaintiff difficulties, seeks to benefit from its own improper conduct. To refuse an award of back pay in these circumstances would reward Rigidply for its illegal retaliatory behavior and frustrate the broad remedial purpose of Title VII.

Further, Rigidply has failed to carry its burden of proving that Plaintiff failed to make a reasonable effort to find suitable employment. Indeed, the evidence supports the reasonableness of Plaintiff's attempts to find work and validates Plaintiff's explanation. Finally, the fact that Plaintiff performed odd jobs and worked for a boat company demonstrates his efforts to find work after August 1994. Obtaining a part-time job in another field satisfies Plaintiff's obligation to mitigate damages absent a showing by Rigidply that this action was not in good faith. Donnelly, supra, 874 F.2d at 411. Rigidply has not offered any evidence beyond summary conclusions that the decision was not genuine. The Court therefore finds that Plaintiff is entitled to back pay from February 1994 until October of 1995.

Contrary to Rigidply's assertions, Plaintiff is also entitled to back pay from October 1995 through February 1, 1997, during which time Plaintiff operated a diner with his wife (in addition to performing odd jobs and yardwork) and had hip surgery. First, Plaintiff's disability due to the hip surgery undisputedly rendered him unable to work, and his undisputedly necessary surgery does not vitiate his entitlement to back pay. Martin, supra, 48 F.3d at 1358-59 (treating physician's testimony that plaintiff was unable to work satisfies reasonable diligence requirement); Wells v. North Carolina Bd. of Alcoholic Control, 714 F.2d 340, 342 (4th Cir. 1983) (plaintiff's testimony of back pain sufficient reason for failure to maintain employment).² Second, Plaintiff's decision to start his own business is a legitimate attempt to mitigate damages, and Rigidply fails to disprove the good faith of this decision. Cline, supra, 689 F.2d at 489 (holding the same in an ADEA case).

Rigidply's assertions concerning Plaintiff's tax returns are...