53 Fair Empl.prac.cas. 1425,54 Empl. Prac. Dec. P 40,224united States Equal Employment Opportunity Commission,plaintiff-appellee, v. Gurnee Inn Corporation, D/b/a Holiday Inn of Gurnee,defendant-appellant, 914 F.2d 815 (7th Cir. 1990)

In 1987 the Equal Employment Opportunity Commission (EEOC) filed a complaint alleging that the defendant, Gurnee Inn Corporation (Gurnee), had engaged in sexual harassment in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to -17. Following a bench trial before a federal magistrate, the district court ruled in favor of the EEOC and granted relief to remedy Gurnee's unlawful employment practices. Gurnee does not contest the Title VII violations, but now appeals the relief granted by the district court.

* BACKGROUND

Gurnee is an Illinois corporation that manages the Holiday Inn of Gurnee. From at least April 1982 to March 1985, Gurnee employed Walter Tinsley as its Food and Beverage Manager. On February 25, 1985, one of Gurnee's female employees filed a complaint with the EEOC charging that Tinsley had sexually harassed female workers and created a hostile and offensive work environment that had resulted in the constructive discharges of several employees. This suit followed. In its complaint, the EEOC sought injunctive relief and back pay with prejudgment interest for the victims of Tinsley's harassment. The testimony of eleven female former Gurnee employees who testified at trial established that Tinsley had engaged in a pattern of sexual harassment that spanned his entire tenure at Gurnee. Based on the largely uncontested testimony of these witnesses, the district court concluded that Tinsley had sexually harassed the complaining witnesses and that Gurnee was aware of Tinsley's conduct but did nothing to correct it. Accordingly, the district court found that Gurnee was liable for Tinsley's behavior and for the resulting hostile work environment and constructive discharges.

Based on its conclusion that Gurnee had violated Title VII, the district court, over Gurnee's objection to injunctive relief, prohibited Gurnee from engaging in future discrimination and ordered Gurnee to adopt both a policy banning sexual harassment and a procedure to enforce that policy. The court also ordered Gurnee to compensate the eight former employees in the form of back pay and prejudgment interest. Gurnee claimed that all eight claimants failed, in whole or in part, to mitigate their damages. Gurnee also argued that three of the former employees were not entitled to back pay awards because they were fired or quit for reasons unrelated to Tinsley's conduct. Finally, Gurnee objected to the imposition of compounded prejudgment interest on the back pay awards. The court rejected these claims and ordered Gurnee to pay the former employees a total of $42,713.59 in back pay and $15,959.64 in prejudgment interest, compounded annually.

II

ANALYSIS

Gurnee asserts that the injunctive relief ordered by the district court in this case is improper because only Tinsley engaged in discriminatory conduct. The defendant maintains that, once Tinsley was fired, such relief was not warranted. However, courts are given wide discretion in Title VII cases to fashion a complete remedy, which may include injunctive relief, in order to make whole victims of employment discrimination. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 421, 95 S. Ct. 2362, 2373, 45 L. Ed. 2d 280 (1975). The decision of whether to invoke injunctive relief is a matter left to the district court and will not be overturned unless it is an abuse of that court's discretion. See Sprogis v. United Air Lines, 444 F.2d 1194, 1202 (7th Cir.) (imposition of injunctive relief did not constitute abuse of discretion even though discriminatory policy had been revoked and plaintiff had been reinstated), cert. denied, 404 U.S. 991, 92 S. Ct. 536, 30 L. Ed. 2d 543 (1971).

We reject, as did the district court, Gurnee's claim that " [t]he unlawful conduct was limited to one man." Appellant's Br. at 14. The court expressly concluded that the discrimination in this case resulted from "Tinsley's behavior and the Gurnee Inn's continued toleration of that behavior." R.93 at 23 (emphasis supplied). Gurnee had neither an anti-discrimination policy nor a grievance procedure through which employees could complain of sexual harassment; it is to these deficiencies that the injunctive relief is addressed. Moreover, Tinsley's manager, who the district court concluded was aware of Tinsley's conduct but did nothing to rectify it, still was employed by Gurnee when the court entered the injunction. The possibility that sexual harassment could persist even after Tinsley was fired supports the district court's imposition of injunctive relief. See 42 U.S.C. § 2000e-5(g);¹  see also Albemarle Paper Co., 422 U.S. at 421, 95 S. Ct. at 2373 (Title VII vests federal courts with broad equitable power to fashion remedies to eliminate discriminatory effects of the past as well as bar like discrimination in the future); Sprogis, 444 F.2d at 1202 (injunctive relief proper to erase problems that elimination of discriminatory policy did not accomplish). The district court did not abuse its discretion by imposing injunctive relief.² 

"The [Supreme] Court has held that a finding that an employer engaged in employment discrimination in violation of Title VII triggers a rebuttable presumption that the claimant is entitled to an award of back pay." United States v. City of Chicago, 853 F.2d 572, 575 (7th Cir. 1988) (citing International Bd. of Teamsters v. United States, 431 U.S. 324, 359 & n. 45, 97 S. Ct. 1843, 1866 & n. 45, 52 L. Ed. 2d 396 (1977)). Once the claimant establishes the amount of damages, the employer must demonstrate, as an affirmative defense, that the claimant failed to mitigate those damages. See Fleming v. County of Kane, 898 F.2d 553, 560 (7th Cir. 1990); City of Chicago, 853 F.2d at 575.³  We emphasize that the employer bears the burden of proving a failure to mitigate. See Hybert v. Hearst Corp., 900 F.2d 1050, 1054 n. 7 (7th Cir. 1990); Donnelly v. Yellow Freight Sys., 874 F.2d 402, 411 (7th Cir. 1989), aff'd on other grounds, --- U.S. ----, 110 S. Ct. 1566, 108 L. Ed. 2d 834 (1990). To prevail, the employer must prove " 'both that the [claimants were] not reasonably diligent in seeking other employment, and that with the exercise of reasonable diligence there was a reasonable chance that the [claimants] might have found comparable employment.' " City of Chicago, 853 F.2d at 578 (quoting Wheeler v. Snyder Buick, Inc., 794 F.2d 1228, 1234 (7th Cir. 1986)) (emphasis supplied); see Fleming, 898 F.2d at 560.

Gurnee maintains that the claimants in this case failed to mitigate their damages. At trial, the defendant alleged that the claimants did not seek other employment following their constructive discharges. However, Gurnee produced no evidence concerning the availability of comparable jobs. The district court found that Gurnee failed to carry its burden and thus rejected the mitigation defense. We shall not disturb this determination unless it is clearly erroneous. Hybert, 900 F.2d at 1054 n. 7.

On appeal, Gurnee relies solely on the claimants' alleged failure to seek employment after being discharged constructively from the hotel.⁴  We agree with the district court that, because Gurnee failed to establish that there was a reasonable chance the claimants could have found comparable employment, the defendant failed to sustain its burden of proof. See, e.g., Gaddy v. Abex Corp., 884 F.2d 312, 319 (7th Cir. 1989) (court did not abuse its discretion in rejecting employer's position that claimant failed to mitigate damages where employer failed to show there was a reasonable probability claimant would have received an offer had she pursued job opportunities).

Gurnee also attacks the back pay awards to four claimants who left Gurnee more than two years before the EEOC charge was filed.⁵  Under the facts of this case, damages accruing before February 25, 1983, are precluded. See 42 U.S.C. § 2000e-5(g) (back pay awards "shall not accrue from a date more than two years prior to the filing of a charge with the Commission"). We do not find merit to Gurnee's position. First, Gurnee conceded that the EEOC established Title VII violations with respect to these four claimants. Moreover, the district court did not award any damages for periods prior to February 25, 1983. Rather, it awarded back pay damages--for periods of unemployment after February 25, 1983, that were caused by Tinsley's conduct--to four claimants who were constructively discharged prior to that date and testified that they would have remained at Gurnee but for Tinsley's sexual harassment. Such awards are neither unlawful nor beyond the scope of the district court's discretion. See id.; Stewart v. CPC Intern., Inc., 679 F.2d 117, 121 (7th Cir. 1982).⁶ 

In its final claim, Gurnee challenges the district court's award of compounded prejudgment interest. There is no doubt that "Title VII authorizes prejudgment interest as part of the backpay remedy in suits against private employers." Loeffler v. Frank, 486 U.S. 549, 557, 108 S. Ct. 1965, 1970, 100 L. Ed. 2d 549 (1988).⁷  Indeed, the Supreme Court has said that it is a "normal incident" of relief in Title VII suits. Id. at 558, 108 S. Ct. at 1971; see also Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1426 (7th Cir. 1986). See generally Lorenzen v. Employees Retirement Plan of Sperry & Hutchison Co., 896 F.2d 228, 236 (7th Cir. 1990); Gorenstein Enters. v. Quality Care-USA, Inc., 874 F.2d 431, 436 (7th Cir. 1989) (prejudgment interest is appropriate to compensate victims of violations of federal law). Moreover, " [t]he decision to grant or deny an award of prejudgment interest lies within the discretion of the district court" and "turns upon whether the amount of damages is easily ascertainable." Donnelly v. Yellow Freight Sys., 874 F.2d 402, 411 (7th Cir. 1989), aff'd on other grounds, --- U.S. ----, 110 S. Ct. 1566, 108 L. Ed. 2d 834 (1990). In this case, where Gurnee does not dispute the EEOC's damage figures, the damage amounts obviously are easily ascertainable. We thus conclude that the district court did not abuse its discretion in awarding prejudgment interest.⁸  Finally, the record supports the district court's decision to award compounded prejudgment interest. See Gorenstein, 874 F.2d at 437.

Conclusion

For the foregoing reasons, we affirm the judgment of the district court.

AFFIRMED.