Crump v. Tcoombs & Associates, LLC, trading as TCAssociates et al, No. 2:2013cv00707 - Document 337 (E.D. Va. 2016)

Court Description: OPINION AND ORDER: The Court ORDERS that Plaintiff be awarded back pay damages in the amount of $40,842.42 and pre-judgment interest thereon at a rate of six percent (6%) to be compounded annually. As set forth above, pre-judgment interest is to be calculated on each separate installment of Plaintiff's salary, less interim earnings, from the date it would have been due to the date of this Opinion and Order. The Court further ORDERS an award of post-judgment interest beginning on t he date of this Opinion and Order. Having resolved Plaintiff's request for equitable damages, and as the jury verdict in this matter has already been entered, ECF No. 314, the Clerk is REQUESTED to enter judgment on the jury's verdict in favor of Plaintiff. Copy of Opinion and Order provided to all counsel of record. Signed by District Judge Mark S. Davis on 9/8/2016. (bgra)

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Crump v. Tcoombs & Associates, LLC, trading as TCAssociates et al Doc. 337 FLED UNITED STATES DISTRICT COURT SEP-8 2016 EASTERN DISTRICT OF VIRGINIA Norfolk Division CLEHK, US DiSTRlCT COURT NORFOLK, VA SUMMER CRUMP, Plaintiff, Civil Action No. V. UNITED STATES DEPT. 2:13cv707 OF NAVY, by and through RAY MABUS, SECRETARY OF THE DEPT. OF NAVY, Defendant. OPINION AND Plaintiff, Summer Crump ORDER ("Plaintiff" or "Crump"), is a hearing-impaired former employee of the United States Department of Navy ("the Navy").^ alleging that the Plaintiff brought suit against the Navy, Navy violated the Rehabilitation Act by failing to reasonably accommodate her in her work as a physician assistant at the Navy's ("Sewells Point Clinic").^ jury returned a Sewells Point Branch Medical Clinic Following a two-week jury trial, verdict in Plaintiff's favor, finding that the the ^ The Court notes that Plaintiff initially filed her complaint against the Navy and third-party contractors, TCoombs & Associates, LLC and TCMP Health Services, LLC {collectively "TCA" or "TCMP"), alleging that they were her joint employers. The Court granted summary judgment on the joint employer issue, finding that both the Navy and TCA were joint employers. However, on the morning of trial, codefendants/ j oint employers TCA settled with Plaintiff, leaving the Navy as the sole defendant at trial. Minutes of Proceedings, ECF No. 304; Stipulation of Dismissal, ECF No. 318. ^ Plaintiff also alleged a claim of constructive discharge against the Navy. However, the Court granted the Navy's Motion for Summary Judgment on such claim, and the constructive discharge claim against the Navy was dismissed. Op. & Order, ECF No. 183. Dockets.Justia.com Navy failed to provide Plaintiff a reasonable accommodation, but awarded ECF No. Plaintiff 314. The Plaintiff's pay, the no only request front pay, on parties matter for remaining equitable Verdict for relief in Form, consideration the form and pre- and post-judgment interest. conclusion evidence compensatory damages. of have the jury Plaintiff's trial, request submitted the for Court post-trial back Following heard equitable of is additional relief briefs. and the Therefore, Plaintiff's request for equitable relief is ripe for decision. I. FACTUAL BACKGROUND^ Plaintiff hearing suffers loss, from and has approximately fifteen bilateral utilized years. See Op. 183; Jury Trial Tr. Excerpt Vol. and 19, 2016, ECF No. Trial Tr. Excerpt Vol. 19, ECF No. 2016, After obtaining licensed assistant 335 since she I, cochlear [hereinafter Crump Test. implants for 9-10, & Order, LeMay Test. sensorineural No.. ECF 7:11-19, "LeMay Feb. 17 Test."]; 185:23-186:4, Feb. Jury 17 and [hereinafter "Feb. 19 Crump Trial Test."]. such physician 335 I, profound cochlear implants. assistant and has received her Masters Virginia Medical School in 2007. Plaintiff worked as Degree a became a physician from Eastern See Op. & Order at 10; Feb. 19 Crump Trial Test, at 190:1-3, 193:9-23. ^ To the extent that the parties do not agree upon or stipulate to the following facts, evidence, the Court finds such facts by a preponderance of the unless otherwise noted. On September 14, 2008, the Navy entered into a five-year contract with third-party contractors, TCoombs & Associates, and TCMP Health Services, provide physician Contract 2013 extenders {N62645-08-D-5008) , and, Services LLC as of September contracted Point Clinic. to LLC (collectively "TCA" or "TCMP"}, services to AX-l/ TCA's 4, 2013, provide Sewells contract in Educational extenders at 93:6-21; Clinic. lapsed Chesapeake physician Crump Damages Test, Point to to Sewells Contract N62645- 09-D-5021-0025, Chesapeake Educational Services, PX-306. TCA hired Plaintiff to provide physician extender services,® under its contract with the Navy, 2010." Letter from TCMP Offering Employment, AX-99; Crump Trial Test, 19, 2010). Clinic, hour. beginning "on or about June 3, at 195:11-196:23 When Plaintiff Feb. Tr. Excerpt, No. 333 Offering a 19 Crump Trial Test, Crump Test,, [hereinafter Employment, (credentialing concluded May began she worked forty hours working at Sewells Point week and received $51.00 at 198:24-199:3; 3:20-4:2, "Crump Damages AX-99. cf. Feb. 19 Feb. 26 Test."]; Plaintiff was Bench Trial and 29, Letter also per 2016, from ECF TCMP projected to '' References to agreed trial exhibits are designated as "AX" followed by the exhibit number Plaintiff's exhibits are are designated as "DX." (i.e. AX-1). designated as Similarly, references to "FX" and the Navy's exhibits ® A "physician extender" is defined by the Contract and relevant Task Orders to include a physician assistant. Order 68, 5, AX-6. Task Order 25, 8, AX-5; Task receive an annual employment, raise equaling Crump Damages Test, an in September additional at 3:20-4:2. of one each dollar year and of two her cents. Plaintiff received such raise in September 2010, and her pay was increased to $52.02 per hour. Id. at 64:16-20. working at life Plaintiff Sewells insurance, benefits," id. Point testified Clinic, short-term at she that, received disability . 3:20-4:2, and Plaintiff's insurance benefits, id. that at while she "dental, . . vision, [and] TCA 401(k) contributed 74:23-75:4.® was to Plaintiff also testified during the jury trial that she received paid time off, sick leave, uniform a continuing medical education allowance, allowance. Plaintiff Feb. 19 worked at Sewells Crump Point Trial Test, Clinic until cochlear implant revision surgery on April 26, Tr. Excerpt, Crump Test., 334 [hereinafter "Feb. left work at Sewells 6:4-6, Feb. surgery, for Jury Trial 2016, ECF No. At the time she Plaintiff was working forty Crump Damages Test, While out of work for her cochlear implant revision Plaintiff Medical Leave Act ® Plaintiff's 201:13-22. l e f t work 2011. 22 and 23, hours a week and receiving $52.02 per hour. at 4:3-11. she 22 Crump Trial Test."]. Point Clinic, at and a was on ("FMLA"). receipt of unpaid leave under the Family and at 83:22-84:2. benefits, in addition to her salary, is disputed and the Court does not make a finding regarding Plaintiff's receipt of benefits at this juncture. The Court will address Plaintiff's receipt of benefits below. A. Plaintiff's Accommodation Recjuests Plaintiff's expected, recovery surgery took longer than but she was cleared to return to work with no medical restrictions on July 20, Crump Trial AX-8. from Test, at However, capabilities 2011. LeMay Test, 130:17-131:3; as of had not yet July at 44:7-15; Feb. RTW Note 2011, returned. (TCA) Plaintiff's Dr. 22 from LeMay, full hearing LeMay explained that, while Plaintiff was able to return to work without restrictions. Plaintiff returning required to work" an at accommodation Sewells Point to be Clinic, "successful including in reduced noise levels and use of a video relay service for communication on the telephone. from LeMay LeMay Test, at 20:14-24:7, (Clinical Audiologist) 44:4-45:18; Letter regarding Crump Diagnosis, AX- 24. Plaintiff began seeking such accommodation and to return to work in June 2011.' Feb. 22 Crump Trial Test, at 10:20-11:15. Plaintiff met with TCA employee Angela Green on June and ' requested Plaintiff was several accommodations originally scheduled to that would return to 27, allow work 2011 her after to her cochlear implant revision surgery in June 2011. However, after reviewing a June 16, 2011 letter from Dr. LeMay discussing Plaintiff's condition. Letter from Summer Crump's Doctor, Michael LeMay, AX-18, TCA and the Navy determined that Plaintiff was not able to return to work and could not "return to work until [she was] able to return at full duty." Email from Green to George, Robles, "re: Re: Summer Crump - RTW Status Follow-Up," AX-21. After being informed that she could not return to work until she was able to return at full duty, and before the date on which Dr. LeMay cleared her to return to work with no medical restrictions, Plaintiff began to seek accommodations. return to work, telephone Green, including use of a video relay phone for making calls. "re: Id. RE: at Summer 11:19-12:15; Email from Crump Accommodations," Plaintiff AX-22. to However, Plaintiff's accommodations request was not approved immediately and she was not able to return to work as she had planned. August 1, approved 2011, the Plaintiff's Navy, accommodation of a video relay phone. Plaintiff. was delayed, Commander requests, Sarah including Neill, the use Email from Marivic Williams to Cynthia Carpenter on 8/1/11, DX-2. to through On However, Such approval was later communicated installation of the video relay phone and Plaintiff understood that she could not return to work until such accommodation was in place. Feb. 22 Crump Trial Test, at 22:15-23:15; Crump Damages Test, at 216:7-217:15; Email from Williams to Summer Crump," AX-33; 101 ("Previously accommodations On August Angela 16, 2011, Plaintiff, my we not have allow was "[s]ince to me RE: "re: to under informed the wait to you returning Green, "re: 'limitations' Plaintiff that accommodations, complete prior to Green, Email Badura to Crump, TCMP would due Green Plaintiff, until FTE." Return of RE: Email RTW," AX- RTW without the contract."). by TCA government the PA the employee approved installation is from Williams to "re: RE: Return of PA Summer Crump," 2, AX-33. Such instruction was reiterated to Plaintiff by her supervisor, Lieutenant Commander Lina Badura, in a personal email on August 16, 2011: "Bottom line, we need to wait for TCMP to coordinate with Sorenson and have all can coordinate installation. with our equipment available . . . so communications also about I actual I guess you can't come back until all in place." Email from Badura to Crump dated 8/16/11, see dept[.] that Email Crump," AX-26 from Williams to "re: Sorenson," PX-87; Green, "re: FW: PA Summer ("PA Crump cannot return to work until I receive a medical release from TCMP stating that PA Crump is fit for full duty."). Further, Plaintiff was informed by Lieutenant Commander Badura that approval/disapproval for use of particular software "may take a few months."® Harris, Williams, Trial Test, "re: FW: Ntouch," AX-29; see Feb. 22 Crump at 21:15-18. As demonstrated at Plaintiff continued regarding her trial, to in October 2011, her by the the with accommodations. requests for accommodation on a to throughout communicate requested Navy's request, provided Email from Green to Jackie following months TCA In and the response Navy to the Plaintiff again submitted her request for accommodation form, Navy, and she submitted a proposed meeting agenda regarding her requests for accommodation. Email from Crump Williams, Accommodation "re: Request, FW: Summer Completed Crump, Medical Attachments: Support Information, ® For further discussion, see this Court's Summary Judgment Opinion and Order. Op. & Order, 15-23, ECF No. 183. VRS Interpreter, Request for Reasonable Accommodation Authorization to Release Medical Information," Robles to Carpenter, "re: Information," Plaintiff had not to work at Plaintiff Email from FW: Summer Crump; Attachments: Request for Reasonable Accommodation Form, Medical AX-48; Form, AX-51. Authorization However, for Release as of February 22, of 2012, received an accommodation and had not returned Sewells Point {through her Clinic. Thus, attorney) sent on a February 22, letter to 2012, the Navy, stating that "if we do not hear from you within ten (10) days of receipt of this accommodation Carpenter Summer from to dated Navy consistent within with On we denied." consider for did employment on April opportunity receive as she 11, ("EEO") a - and Ms. response demanded, 2012, for and Plaintiff counseling with Feb. 22 Crump Trial Test, at 38:3-18. May detailing 24, their 2012, accommodation. the response for accommodation, to Navy sent Plaintiff Plaintiff's offered to October a memorandum, 2011 requests and such letter included the Navy's offers of Mem. from Navy to Crump, Reasonable Accommodation Request," AX-118. Navy request Accommodation not ten-day period letter, our from Sullivan to Neill Request Plaintiff the her will Letter "re: PX-165. initiated equal the Navy. be 2/22/12, Crump," the letter, (1) assign another Status In such letter, supporting assist Plaintiff in making any telephone calls; 8 "Re: staff or member (2) of the to provide the Virginia Relay system or sign language services to assist Plaintiff in performing the essential functions of her position; or (3) provide and install the Z-150 video phone device, if such device were approved. receive Test, Id. at 2. such letter until June at 41:6-20. Plaintiff, 15, Plaintiff 2012. was however, Feb. then 22 able did not Crump Trial to meet with Commander Neill, and discuss the Navy's offers of accommodation, during an EEO mediation During the EEO mediation. that the sounded Z-150 like video a Commander Plaintiff informed Plaintiff know when return to work. 2012. would be told regarding the Id. acceptable accommodation." Neill June 19, at 41:3-5. Plaintiff such device Id. was at that and that 42:2-10. she In would accommodation and keep would installed and when she "it let could Id. After June Plaintiff expressed to Commander Neill phone great response. on the 19, 2012 mediation. Commander Neill took steps to request and install the Z-150 video phone. On July 2, 2012, Manager at Commander Neill instructed the the Naval Medical Center - Communications Portsmouth to proceed to process the DSL line required to accommodate installation of the Z-150 video phone, and on July 9, 2012, the Navy's IT and HIPAA compliance departments approved the Z-150 video phone. Email from Landis to Washington, Email from Taylor to Barnes, "re: "Re: IT N0018311WRNX133," Request for AX-106; Utilization of Z-150 on NMED Domain," AX-112. video phone. On August 2, 2012, the Navy ordered the Z-150 Email from Neill to Taylor, #79522 been ordered - Z-150," AX-103. "re: FW: CAP Request The Z-150 video phone was installed at Sewells Point Clinic as of August 15, 2012.® from Taylor to Barnes, "Re: Email IT request for utilization of Z-150 on NMED Domain," AX-112. On July 27, since their June confirmation installed from AKS was Feb. to 19, that and with TCA. 2012, having heard nothing from Commander Neill the formally included "re: the 2012," the Navy's 2, 24, of offers Further, 2012 of had her to no been position 42:11-12; Reasonable resignation received phone resigned at 6:7-8, AX-107. her having video Plaintiff Navy's May and Z-150 Status communicated rejected in promised 22 Crump Trial Test, Neill, Plaintiff mediation, functional, Request dated May 24, 2012, 2012 Letter Accommodation on August Navy and accommodation, as memorandum the 9, to Plaintiff. ' Lieutenant Commander Badura testified at trial that she and Plaintiff had discussed the Z-150 video phone and Plaintiff knew that the Navy was ordering the Z-150 video phone for her and having such device installed. Jury Trial Tr. Excerpt Vol. II, Badura Test., 281:6-9, 299:18-300:12, Feb. 23 and 24, 2016, ECF No. 332 [hereinafter "Badura Test."]. Lieutenant Commander Badura's testimony on this point was uncontradicted, but the of such communication. record is unclear as to the date and context On cross-examination. Lieutenant Commander Badura explained that the last time she spoke to Plaintiff was in April 2012 during a chance meeting. Badura Test, at 299:18-300:12. However, it was not until May 16, 2012, that Commander Neill provided information regarding the Z-150 video phone, via email, to the group of Navy employees working on Plaintiff's accommodation requests (including Lieutenant Commander Badura), after previously completing some background research on such device. Email from Taylor to Neill, "Re: Reasonable Accommodation ISO Hearing Impairment," AX-114. 10 Feb. 22 Crump Trial Test, "re: Status 2012," of at 6:9-10; Reasonable AX-107. Letter from AKS to Neill, Accommodation Lieutenant Request Commander dated May Badura, 24, Plaintiff's supervisor and the individual responsible for ordering the Z-150 video phone, or was not aware that Plaintiff had resigned from TCA, rejected the Navy's offers of accommodation, before the installation and testing of the Z-150 video phone on August 15, 2012. Jury 282:8, Feb. Trial 23 Tr. and Excerpt 24, 2016, Vol. II, ECF No. Badura 332 Test., 281:21- [hereinafter "Badura Test."] . B. Plaintiff's Employment Search While Clinic, Test, she was unable to return to work at Plaintiff began to seek work elsewhere. at 10:25-13:1. Plaintiff testified Sewells Point Crump Damages that she began searching for jobs around September 2011 and applied to thirtyfive jobs. Id. at 8:15-22. Plaintiff first obtained a temporary locum tenens position in December 2011 with CompHealth in the emergency department at the Halifax Regional Hospital in South Boston, Virginia, and after she was properly credentialed. Plaintiff began work for CompHealth on December 22, at 13:2-14. CompHealth Hospital Id. After the six-week locum tenens position concluded, asked as 2011. a Plaintiff medical assignment until April to continue provider 2012. Id. 11 and at she Halifax remained After April 2012, Regional on such Plaintiff continued to work as-needed as a contractor for CompHealth until June 2014. Plaintiff Id. at 17:19-18:4. made $47.00 While employed with CompHealth, per hour, with the opportunity to make $70.00 per hour for working over 40 hours in a week, and she did not receive any benefits. Plaintiff earned $21,74 9.27 earned $5,922.50 $7,625.75 ECF No. Id. at 16:8-12, from from CompHealth in 2013; Navy's Mem. 324; CompHealth 2013 W-2, During 62:8-11. in 2012; Plaintiff CompHealth from CompHealth in 2014. 209; 17:25-18:8, and Plaintiff earned Final Pretrial Order, Regarding Back Pay Award, 5, 101, ECF No. PX-248. Plaintiff's work with CompHealth, Plaintiff continued her search for better employment closer to her family in the Hampton Roads area, recruiters in February, Job Search Documents, physician assistant submitting her resume and contacting March, April, PX-213. position and May 2012. Plaintiff Plaintiff was offered a part-time with Team Health in April 2012, working in the emergency departments at Maryview Medical Center in Portsmouth, Virginia, Harbor View Health Center in Suffolk, Virginia, and DePaul Medical Center in Norfolk, Virginia. Damages Test, for Team Health 111:22-112:4; at at 18:9-21, Team receive 2012. Feb. Crump Damages Test, Health, any in July 62:25-64:1. Plaintiff benefits. made Crump at Plaintiff began working 22 Crump 62:18-19. $53.00 Damages 12 Crump per Test, Trial Test, at While employed hour at and did not 18:22-19:25. Plaintiff remained on the roster for Team Health and took shifts from 2012 through 2015. Plaintiff earned $2,954.75 from Team Health in 2012; Plaintiff did not receive any shifts with Team Health in 2013; Plaintiff earned $13,175.00 2014; at and, Team Mem. as of May 14, Health in 2015. 2015, from Team Health in Plaintiff had earned $18,060.45 Final Pretrial Regarding Back Pay Award at 5; Order at 101; Team Health 2012 Navy's W-2, PX- 245. During the was offered a working in Patient First same time period, in February urgent care/family locations in practice the local centers area Crump 21:11, Plaintiff 63:16-64:1, First on 65:16-23. a full-time basis resigned from TCA and the Navy. 112:5-11, Plaintiff physician assistant position with Patient First, Richmond or Northern Virginia. Patient 2012, While employed at Damages in Feb. Patient or at as-needed Test, began July various at 20:11- working 2012, in after for she 22 Crump Trial Test, First, Plaintiff made at a base rate of $36.00 per hour and received additional pay based upon shift. the percentage of collectible calls Crump Damages Test, at 21:12-14, completed 67:3-70:21. during a Plaintiff did not initially receive benefits from Patient First, but began to receive benefits Plaintiff received a on October 1, 2012. raise on August 16, Id. 2014, at Patient First increased to $43.00 per hour. 13 at 21:19-22:20. and her base pay Id. at 40:3-12. Plaintiff continued to be employed at date of trial; however, Patient First as of the the parties presented limited evidence of Plaintiff's interim earnings between May 2015 and the date of trial. n.21, Pl.'s Br. ECF 100:10. No. Supporting Award of 325; Crump Damages earned $105,382.35 Plaintiff earned $97,687.02 May First Test, 14, in 37:9-39:20, 2015, 2015. Plaintiff Final Patient First 2013 W-2, from had Pretrial 5; earned Order 99:18- in $13,435.31 at 101; 2013; and, at as Patient Navy's PX-247; Patient First 2014 W-2, her time at Patient First. Mem. PX-244; PX-322. "better employment" during Feb. 22 Crump Trial Test, at 44:4-7. Plaintiff received an additional Crump Damages Test, Documents, First Patient First 2012 W-2, Plaintiff continued to look for Bon Secours. Patient from Patient First in 2014; Regarding Back Pay Award at Search at 5 Plaintiff earned $35,759.51 from Patient First in 2012; Plaintiff of Back and Front Wages, PX-213. job offer in August 2014 with at 89:23-90:1; However, Plaintiff Plaintiff Job turned down the Bon Secours job offer because the clinic where Plaintiff would have worked was not yet functional and Plaintiff was not able to begin work Plaintiff at such location. was also offered a Crump position Care Specialists in October 2014, she had begun considering a Damages with Test, at 91:3-16. Pulmonary Critical which she turned down because position with Apollo MD. 91:20-92:10. 14 Id. at Plaintiff was 1, 2014; offered a however, due to position at Apollo MD on December a delay in Plaintiff's credentialing process, Plaintiff was not able to begin work at Apollo MD until July 1, 2015.^° per hour for benefits. MD Apollo above, the Plaintiff was paid $70.00 her work with Apollo MD and did not Id. at at 41:15-47:14. at 47:16-22. as of parties the receive Plaintiff continued to be employed date of presented trial; limited however, evidence as of discussed Plaintiff's interim earnings between May 2015 and the date of trial. 37:9-39:20, Order Plaintiff earned $60,463.53 in wages from Patient CompHealth, at Patient Id. at 99:18-100:10. In total. First, any 101. First $118,487.77 and Team Plaintiff Health earned and CompHealth from Patient 2014. Finally, earned $31,4 95.76 in from Patient 2012. $111,304.85 2013. First, from January 1, in Id. CompHealth, and in Pretrial wages Plaintiff from earned and Team Health in 2 015 to May 14, First Final Team 2015, Health. Plaintiff Id. at 100-01. " Plaintiff argues that, as part of her back pay award, she should receive payment for the additional months that she was not able to work at Apollo MD due to the Navy's error in Plaintiff's credentialing paperwork and complications that arose with Plaintiff's credentialing process at Apollo MD. PI.' s Br. Supporting Award of Back and Front Wages, 5-6, ECF No. 325. Any amount of back pay due based upon such credentialing error will be addressed below. 15 II. LEGAL STANDARD Plaintiff seeks an award of back pay and front pay, as well as pre- and post-judgment interest. The Court first addresses the legal standard for each category of damages in that order, and then discusses the application of such standards to the facts of the case. A. Back Pay Complaints brought under Section 501 of Act incorporate the "remedies, the Rehabilitation procedures and rights" established in Title VII of the Civil Rights Act of 1964. U.S.C. 60 § 794a(a)(l); (D.D.C. Act 2012) VII" Shinseki, 907 F. Supp. 2d 54, (noting that "section 501 of the Rehabilitation incorporates incorporates Bonnette v. 29 the section remedies (citing Woodruff v. 107 of the and procedures Peters, 482 ADA, which in established F,3d 521, 526 turn in Title {D.C. Cir. 2007); 42 U.S.C. § 12117(a))); Op. & Order at 41-42. As the Navy has been found by the jury to have engaged in an unlawful employment Rehabilitation engaging in Act, such "the unlawful practice [C]ourt in may employment enjoin without back the practice, affirmative action as may be appropriate, is not limited to, violation and of the [Navy] from order which may include, such but reinstatement or hiring of employees, with or pay . . . or court deems appropriate." any other 42 U.S.C. 16 equitable relief § 2000e-5(g)(1). as the Moreover, as a "general rule," established that a be the pay, awarded Inc., Co. V. Moody, Tenet, Dennis 651 422 applies 139 F. Supp. (4th Cir. 421). 405, in Supreme Columbia Court 2002) 421 Colleton 2003) 732 (1975)), (E.D. and finding Va. of Szedlock v. 2001), aff'd, Paper Co. , unlawful persons discrimination whole for discrimination." throughout injuries Albemarle (addressing Title VII claim). victims employer of is a Motor Lines, Motor Johnson v. (explaining back [ ] pay employment made claimant as Ford this 61 P. 422 U.S. discrimination, if applied would not frustrate the central statutory purposes of eradicating the Ctr., therefore cases, (citing Albemarle a Med. back[ ]pay should be denied only for reasons which, generally, has {citing Albemarle Paper Rehabilitation Act 2d 725, "[G]iven v. (4th Cir. U.S. rule App'x 88 States prevailing plaintiff under Title VII should 290 F.3d 639, general at back United Inc., Co. v. and a Co., discrimination 458 991 footnote reinstatement making past 422 U.S. only for whole, losses the discrimination." EEOC, and through suffered Paper 753 F.2d 1269, Shalala, in of economy at 421 "As part of the process of making responsible result the U.S. F.2d that are 1278 219, 126, "the 130 some adverse action taken by the employer"); 17 Brady v. n.l5 (4th specific dependent offending suffered by {4th Cir. 231 the upon Thurston 1985) (citing (1982)); Cir. Holmes v. see 1993) remedies the the proof of of Wal-Mart Stores Apr. E., 27, settled L.P., 2011) I:10cv75, back discrimination 2011 (unpublished) that warranted No. pay causes where 1842868, (explaining is a WL an loss appropriate of discrimination that pay, causes and *8 {E.D. "it is Va. well- remedy where reinstatement unlawful is termination" (citations omitted)). 1. Commencement of the Back Pay Period Once an appropriate, award of back pay has been determined to be the back pay period typically commences on the date that the unlawful employment practice takes place. See McKennon V. (1995) Nashville beginning should point be unlawful Banner the calculation discharge discovered."); F.2d 951, in Pub. 954 Co., trial of to (4th Cir. Sch. 1981) U.S. court's back[ the Edwards v. 513 from the Bd. of 362 formulation ]pay date 352, new the of a date ("The remedy of the information was City of Norton, Va., 658 ("Under the Labor Act the back pay period for an unlawfully terminated employee commences with the date of discharge and continues until the employer makes a valid offer of reinstatement." Tobacco Co., a (citations 535 F.2d 257, 269 omitted)); (4th Cir. 1976) Patterson v. Am. (explaining that back pay award should compensate the victim of discrimination and "[t]his may be accomplished by allowing back pay for a period commencing at the time the employee was unlawfully denied a position until the date of judgment, 18 subject to the applicable statute of limitations" (citations omitted)); Fleet F.3d St., Ltd., 148 plaintiff who has proven a is, as a general matter, discharge until Thorne v. City of 1986) ("Absent refused to the date discharge of Cir. 1998) ("A in violation of the ADEA {citations 802 F.2d 1131, circumstances, employee rights under Title VII, (2d judgment." El Segundo, an 167-68 entitled to back[ ]pay from the date of compelling hire 149, see also Kirsch v. in 1136-37 when violation omitted)); an of (9th Cir. employer that has employee's the court should compute the back[ ]pay award from the date of the discriminatory act until the date of final judgment." Where provide the (citations omitted)). unlawful reasonable employment accommodation, back pay calculation at suffer financial loss the after, courts point when and as employer's failure to accommodate. F. Supp. 2d calculation 1292, on 1300 the due (S.D. date disability leave to reasonable accommodation); Fla. that the action the a a a begin plaintiff of, 2007) Chertoff, was failure F. the begins (starting plaintiff to to the defendant See Hudson v. 139 failure generally result defendant's Szedlock, is Supp. back 473 pay placed to provide 2d at on a 734-35 (beginning back pay calculation on the date that the plaintiff left her job on medical leave because the defendant employer failed to provide her with a reasonable accommodation); James v. Frank, 772 F. Supp. 984, 997 {S.D. Ohio 1991) 19 (allowing back pay for work days where the plaintiff was sent home without pay due to the defendant's failure accommodation); cf. fact Fourth that judgment the suggests Holmes, back that, pay 2011 like reversed hostile claims and provide WL 1842868, Circuit failure-to-accommodate recover to do at the *8 ("Thus, the district court's claims, entitle reinstatement reasonable environment work not a a unless plaintiff to failure to the accommodate causes a loss of pay or discharge."). Generally, discrete trial, where an discriminatory as opposed to unlawful act, a as employment the Court practice found is during a this continuing discriminatory practice,a plaintiff may not recover damages caused by such unlawful act if such act cannot plaintiff may not unexhausted evidence Liberty also or of Mut. recover such conduct Ins. Co., that accommodate] conduct a basis effects shed the basis damages time-barred, (explaining provide serve as even for 553 F.3d outside the the a unlawful 121, 142 of of conduct a is introduce See Tobin (1st Mutual's limitations i.e. may purposes. evidence impact liability, plaintiff Liberty the for damages, on if other "[a]Ithough light if for Cir. 2009) [failure period v. does to not such conduct and its Liberty Mutual's later The Court has already determined, both at the summary judgment stage and at trial, that the failure not a continuing violation. Rule 50 Motion, 42:13-43:20, Op. to accommodate claim & Order at 71-72; February 25 and 26, 20 in this Jury Tr. ECF No. 330. case is Excerpt, refusals to Corp. Morgan, Inc. V. V. Mass. 269-70 courts accommodate that arose 180- or charge U.S. 2004))). limited an as a result 300-day period of 101, {citing 113; Nat'l Ocean Comm'n Against Discrimination, (Mass. have 536 Tobin." For example, award of of in ADA that 649 cases" place in which an ADA plaintiff discrimination Inc., Cranberries, damages took with the EEOC in bring his or her claim in federal court. Indus., Spray F.3d 374, 385 (5th Passenger 441 808 N.E.2d 257, equitable conduct R.R. several to damages within must order to file 2011) a properly See McClain v. Cir. the Lufkin ("We omit discussion of the finer details of the back pay award except to note that damages commence on March 6, McClain for filed his continuing violations awarded for violations charge is filed." V. EEOC claim. Title VII that occurred Inc., or 300 days before provides like harassment, (citing 42 U.S.C. Joe's Stone Crabs, 1994, 300 that, damages may only be days before § 2000e-5 (e) (1))); 296 F.3d 1265, except 1276 an EEOC E.E.O.C. (11th Cir. 2002) The Court views cases addressing violations of the ADA and accompanying damages to be analogous to the present matter, because the legal standards used to determine whether the Rehabilitation Act has been violated and any resulting damages mirror the legal standards for determining a violation and any resulting damages under the ADA. See 29 U.S.C. § 791(f) ("The standards used to determine whether this section has been violated in a complaint alleging nonaffirmative action employment discrimination under this section shall be the standards applied under [T]itle I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.) and the provisions of sections 501 through 504, and 510, of the Americans with Disabilities Act of 1990 (42 U.S.C. 12201-12204 and 12210), as such employment."); see also 29 C.F.R. § 1614.203(b). 21 sections relate to (vacating award of damages for harm that took place outside of the 300-day time period in which the plaintiff was required to file an EEOC discrimination charge) ; cf. Mems v. Dep't of Fire & Safety Servs., 2003) {affirming limitation of damages to damages which arose as result of unlawful acts occurring within 784 St. Paul, a 327 F.3d 771, City of the {8th Cir. one-year limitations period in which the plaintiff was required to file a charge of discrimination Rehabilitation Act with cases, the courts EEOC). have Similarly, limited the award in of damages to damages that were caused by conduct that took place during the 45-day period within which a Rehabilitation Act plaintiff is required to seek EEO counseling. See Anderson v. Richardson, 2001) 145 P. Supp. 2d 1139, 1146 (D.N.D. (awarding back pay only for Rehabilitation Act claims which were properly exhausted); *6 (N.D. cf. Sutton v. 111. Mar. 22, Potter, 2004) No. 02cv2702, (unpublished) 2004 WL 603477, (finding that the 45- day limitations period for certain discrete acts was tolled, but limiting the plaintiff's plaintiff's back pay calculation limitation period began). limitations period, back pay on award the and date beginning that the the 45-day Even if a plaintiff is not bound by a some courts have exercised their discretion to limit a plaintiff's damages to those damages which arose as a result of violations that occurred applicable statutory limitations period. 22 within the See E.E.0.C. otherwise v. Minn. Dep't of Corr., aff'd in part, 300-day 702 F. Supp. 64 8 F.3d 910 time period 2d 1082, {8th Cir. before discrimination with the EEOC, by the ADEA's 300-day Rehabilitation Act unlawful conduct, such conduct if 2011) {D. Minn. 2010), (limiting damages to plaintiff filed charge of even though EEOC as plaintiff was not subject to that statute of individual had filed suit, 1091 limitations, because " [i]f that her damages would have been limited statute plaintiff of limitations"). suffers loss as Thus, a if result a of such plaintiff cannot recover damages based on it takes place before the 45-day limitations period begins. 2. Duty to Mitigate "When the employee fulfills the initial burden of producing evidence shifts establishing to the reasonably an entitlement employer diligent, to and prove that a comparable employment existed." 984 F. Supp. Freight 494 U.S. 386, Sys., 820 389 Inc. , that plaintiff, to be a Md. F.2d that back the reasonable Ford v. 1997) 402, "Because the employee chance burden was of Rigidply Rafters, (7th failure Cir. not finding (citing Donnelly v. 411 the pay, 1989), Inc., Yellow aff'd, to mitigate is an defendant bears the burden of proof to show victim of unlawful discrimination, 'reasonably employment 874 (1990)). affirmative defense, (D. to diligent in substantially equivalent 23 seeking to that and has failed accepting new from which she was discharged.'" 753 Szedlock, F.2d at Martin v. 1273) 139 F. (citing Cavalier Hotel Supp. 2d at 734 Ford Motor Corp.. 48 Co., F.3d {quoting Brady, 458 1343, U.S. at 1358 232); (4th Cir. 1995)). A Title VII plaintiff's duty to mitigate, Rehabilitation Act plaintiff's duty to mitigate, and thus is described at 42 U.S.C § 2000e-5(g)(1), which provides in pertinent part, "[i]nterim earnings or amounts earnable a with that reasonable diligence by the person or persons discriminated against shall operate to (emphasis ancient reduce the added). "This principle of reasonable diligence Ford Co., Motor back 458 duty law, in pay otherwise [to mitigate], requires the finding other at U.S. allowable." rooted claimant (footnote 231 Id. suitable in to an use employment." omitted). Several courts have recognized that a defendant employer may demonstrate that a plaintiff "'establishing (1) employee not did Broadnax v. E.E.O.C. {7th Cir. Supp. 1997) 2d at requires failed the 1297 V. to mitigate that suitable work existed, make reasonable City of New Haven, (quoting Dailey v. 1997)); has efforts 415 F.3d 265, Societe Generale, (citations ("Generally, defendant to prove 24 Inc., omitted); the and to (2) that the it.'" {2d Cir. 268 2005) 456 (2d Cir. 108 F.3d 1569, see by obtain 108 F.3d 451, Ilona of Hungary, (same) damages Hudson, 1581 473 F. burden regarding mitigation that substantially equivalent work was available and that the employee did not use reasonable diligence Newport (E.D. to News Va. obtain it." (citations Redevelopment 1985) & Hous. ("As noted, after December 1980, omitted)); Auth. , 635 F. Blizzard Supp. 23, v. 26 the evidence here demonstrates that the plaintiff made little or no effort to secure employment although positions in her field were evidently available."). " [A] 'plaintiff cannot remain idle after an unlawful discharge and receive back pay for that period where he was not actively seeking employment.'" Szedlock, 139 F. Supp. (quoting Brady, 753 1273). "Indeed, 'forfeits his right F.2d at to back pay if he 2d at 734 the claimant refuses substantially equivalent to the one he was denied.' ... a job It is therefore the general rule that a Title VII claimant's voluntary refusal to seek or accept substantially equivalent or to remain in such a job once secured, loss of back pay." Brady, risks or even insures a 753 F.2d at 1273 omitted). Further, employment, she must seek a different job, paying." Co. , 458 Szedlock, U.S. at "if 139 231; [a] F. plaintiff Supp. Brady, 753 F.2d at 411). 25 2d at F.2d employment, (internal citations cannot comparable even if i t is lower- 734 at find (citing Ford Motor 1274; Donnelly, 874 3. Conclusion of Back Pay Period Back pay calculations entered by a court. a typically conclude See Kirsch, successful plaintiff is 802 F.2d circumstances, . at "entitled to back[ . 1136 . the (explaining court judgment 148 F.3d at 167-68 of discharge until the date of judgment." Thorne, when should is (noting that ]pay from the date (citations omitted)); that "Absent compute compelling the back[ ]pay award from the date of the discriminatory act until the date of final judgment." (citations omitted)); Patterson, 535 F.2d at 269 (explaining that "back pay must be allowed an employee from the time he is unlawfully actually receives promotion, employee a it," and, denied absent a promotion . unlawfully denied a position judgment"); accord Jean-Baptiste v. D.C., (D.D.C. if a 2013) . However, "at the until of reinstatement at 232 date of 2d 37, 958 F. Supp. 44 back pay calculations may be cut short and the plaintiff damages by refusing such reasonable offer. U.S. he time the the defendant employer demonstrates that it made a offer 458 . until the ability to receive such back pay period should commence was . ("Consequently, an failed reasonable to mitigate See Ford Motor Co., employer charged with unlawful discrimination often can toll the accrual of back[ ]pay liability by unconditionally offering the sought, with and thereby minimize damages."); providing Brady, 753 26 him claimant an F.2d at 1273 the job he opportunity to ("It is therefore the general rule to accept seek or that remain in such a defendant properly Title VII substantially accord Edwards, an award of employer mitigate damages by himself See Kirsch, 148 F.3d at 168 however, employment, F.2d at that other or or risks or even insures a 658 demonstrates removed for equivalent 954. back pay may also be voluntarily to judgment, claimant's voluntary refusal job once secured, of back pay."); noted above, a a herself from {"The backt cut or if the loss Further, short plaintiff means, to if failed a as a to plaintiff labor market. ]pay period ends prior if the plaintiff has theretofore retired, 'a discriminatee is not entitled to back pay to the extent that he fails quotation to remain omitted)); recognized, however, earlier the if in Thorne, that plaintiff the job market, the labor 802 the has market.'" F.2d at backt 1136 (citations ("Our ]pay period may voluntarily removed court and has terminate herself from or rejected the employer's unqualified offer of reinstatement to the position to which the plaintiff applied." (internal citations omitted)); the case of a Title discharged, the claimant reasonably be employment of to substantially discharged." Court duty VII cf. Brady, claimant mitigate diligent in equivalent who seeking to does not apply 27 the F.2d at 1273 has damages (citing Ford Motor Co., Appeals 753 that been requires ("In unlawfully that the and accepting new from which he was 458 U.S. at 232)). "constructive Our discharge rule," who which denies back pay to has committed conditions of 651 a intentional (4th Cir. 1981)). of back pay discharged, general discrimination constructive {citing Spagnuolo v. statutory it Dennis, Corp., he or she 641 was [the Fourth Circuit] duty unless is 290 under F.3d at F.2d 1109, 1114 a plaintiff does not sacrifice an award because "Instead, discharge." Whirlpool Thus, simply "persons who leave an employer located mitigate employer damages." at Id. 42 not constructively simply appl[ies] U.S.C. § 2000e-5(g) (citing Spagnuolo, the to 641 F.2d at 1114) . 4. Calculating a Back Pay Award In calculating a Court must wrongly determine Roadway Exp., Ford Motor Co., make them, have an discharged employment contract; v. dollar amount amount employee for that a back pay award, "should monetarily whole it should not provide a Inc., 689 458 U.S. F.2d 481, at 230 490 only windfall." *so far as possible been (quoting were it Albemarle not Paper quotation omitted))). of back pay should be ... for his Cline 1982); § 706(g) the victims of unlawful discrimination whole' the under (4th Cir. ("To this end, make the aims see 'to by restoring to a position where they would the Co., 422 unlawful U.S. discrimination.'" at 421 (internal "To make the plaintiff whole, the award the difference between what the employee would have earned had the wrongful conduct not occurred from the 28 period of termination during that period." Duke Homes, at 489). 755 Thus, to Ford, F.2d 599, a judgment, and 984 F. Supp. 606 {7th Cir. 1985); back If a pay plaintiff takes a period, with any earnings deducted from Hercules, Philips Inc., Indus., 689 F.2d 753 631 F.2d at F.2d 1161, Inc., 593 "Indeed, under § 706(g), pay award should be run during the 1275 1168 F.2d lower paying job period paying Brady, to "[t]he continues pay award." Cline, plaintiff earns during entitlement job, earnings court should calculate the amount of any back the back pay period. the actual at 389 {citing Horn v. pay award and reduce i t by any amount a during the back employment a at a pay lower subsequent back (citing Merriweather v. {5th Cir. 783, of 787 1980); (7th Taylor v. Cir. 1979)). the rule is that the amount of the back 'reduced by any earnings acquired during the interim period regardless of the type of work involved.'" Taylor v. Republic Servs., Va. 2013) (citing Brady, 753 F.2d at 1273). In calculating a Inc., 968 F. back pay award, plaintiff's base wages or salary. Barnum & Bailey Combined Shows, 1993) ("Under Title VII 'make whole' relief. a 2d 768, in addition See Long v. may 29 include the to a Ringling Bros.- 9 F.3d 340, prevailing plaintiff This {E.D. such as fringe benefits increases, Inc., 801 the Court should include other kinds of employment compensation, and reasonably anticipated salary Supp. Id.; 343 is value (4th Cir. entitled to of fringe benefits." 769 (citations F.2d 958, omitted)); 964 (4th Cir. Fariss Lynchburg Foundry, ("Overwhelming 1985) v. judicial authority recognizes that employers guilty of discrimination are liable for fringe benefits they would have provided to employees as well as back wages under the omitted)); Hylind v. Xerox Corp., Md. 2014), aff'd, 632 F. App'x ADEA." 31 F. 114 (internal Supp. 3d 729, {4th Cir. back pay based on plaintiff's "base salary, quotations 741-42 2015) [and] (D. (awarding the average of the salaries she actually received in the preceding four years, allowing increases increases and also Metz F.3d V. 1482, support). to reflect to account Merrill 1493 "In Lynch, n.l3 light for victim of discrimination, which intentional Pierce, Plaintiff & Smith, 1994) (listing VII's policy to salary growth"); Fenner Cir. Title make see Inc., 39 cases in whole a the award of back pay should include not only the straight salary, well, expected inflation and wage (10th of reasonably but raises and fringe benefits, would discrimination." have Long v. received Ringling but for as the Bros.-Barnum & Bailey Combined Shows, 882 F. Supp. 1553, 1561 {D. Md. 1995). B. Front Pay Title VII, and thus the Rehabilitation Act, an award of front pay, 42 U.S.C. for future as § 2000e-5(g)(1), loss of pay. also allows for "other equitable relief," pursuant to to compensate a prevailing plaintiff "Although courts have defined 30 'front pay' in numerous lost ways, compensation reinstatement or front in lieu of reinstatement." Inc., 928 example, "[i]n F.2d in suffered by the plaintiff have an discretionary. to for and du accord Duke v. Cir. 1991). is For not viable such a an the a 846 1423 (citing cases in 1984)). under Title VII is No. Sch. Bd. of Brunswick Cty., (E.D. *1 for (citing Whittlesey v. (2d Cir. pay discrimination, substitute Va. Dec. 23, 2008) (citing Courts have denied front pay in cases offer of reinstatement. Inc., 146 F. App'x 365, 368 ("[W]here once at 728 front of injuries failed to mitigate his or her damages by reasonable reinstatement, right E.I, psychological as U.S. See Hartnett v. plaintiff has pay, pay F.2d at of of result 742 F.2d 724, award Racetrac Petroleum, back 928 2008 WL 5381350, (unpxiblished) a 532 928 F.2d at 1424). a (2001); (4th because as Pollard, Union Carbide Corp., refusing judgment Pollard v. reinstatement front accord Duke, However, or ordered reinstatement." where a awarded continuing hostility between the plaintiff and the workers, Duke, between 846 1423 which its 3:08CV128, 843, 1413, or support); period 532 U.S. cases courts simply money the Uniroyal employer is during Font de Nemours & Co., because of pay a plaintiff employer plaintiff equitable who makes 31 Hurley v. (11th Cir. 2005) requests reinstatement or a faith" of rejects relief See "good the unless offer his offer forfeits refusal of his the employer's offer was reasonable." Serv., V. Inc., 867 F.2d 1290, Pabst Brewing Co., accrual of terminated damages merely reinstatement; refusal . . 755-57 offer for [which] Md. for pay if a Co., F.3d 1456, 1464 front pay their damages in to for has 945 U.S. (8th cases F.2d recovery a at Cir. where a 870 Supp. Smith v. has 2d 751, good faith ends the of the award of offer." World Courts plaintiff pay.'" refusal Yet, the of (7th Cir. position pay. 1994))). seeking 869, 232; 118 the receipt of a front offer front 800 F.2d 111, comparable not unreasonable of 127 F. ("The is an *an reasonably refused {citing Ins. have Co., also failed to front 38 denied mitigate substantially equivalent See Reneau v. with reasonable diligence. Inc. , Inc., ("Ordinarily, 458 by only preclude 1989) discharge refuses not necessarily preclude plaintiff Ford Motor is Graefenhain (7th Cir. Hughes STX Corp., liability reinstatement does 1203 employee it reinstatement employer's the Econ. Lab., 2001) 1989))); discriminatory will Xiao-Yue Gu V. (D. a instead, . {11th Cir. F.2d 1198, because (quoting McNeil v. 1986))); 870 1296 (citing Stanfield v. Answering Wayne Griffin & Sons, {5th Cir. 1991) ("Front employment pay may be denied or reduced when the employee fails to mitigate damages by seeking other employment." Bottling Co., Ctr. Area Sch. (citing Hansard v. 865 F.2d 1461, Dist., 133 F. 1470 (5th Cir. App'x 4, 32 11 Pepsi-Cola Metro. 1989)); (3d Cir. Caulfield v. 2005) ("When an employer successfully back[ ]pay award reduced and Further, a failure to an aggrieved employee beginning mitigate proves at any the time front[ ]pay of the award to will mitigate, be cut be off or failure employee's will any to foreclosed."). front pay may be denied if such award would result in a windfall for the plaintiff. reinstatement, preferred front tempered."); Fourth Circuit has as plaintiff." pay may serve as a it Taylor, 968 cautioned courts can result in F. is the much Supp. unfair or however, 2d at to award front an {"While substitute Because of the potential for windfall, use must be sparingly 928 F.2d at 1424 which is clearly an equitable remedy, remedy, complement. See Duke, 803 a its ("The pay damages windfall for the (citing Duke, 928 F.2d at 1424)). C. Pre- and Post-Judgment Interest As explained above, § 706(g) of Title VII, manifestation of "[t]he back[ as amended, Congress' intent ]pay award authorized by 42 U.S.C. to make § 2000e-5(g), 'persons injuries suffered through past discrimination.' interest, of course, Loeffler v. Paper Co., U.S. 305, Frank, 422 U.S. 310 is 486 for Pre[-]judgment 'an element of complete compensation.'" U.S. at 421; (1987)). whole is a 549, 558 (1988) West Virginia v. (quoting Albemarle United States, 479 Our Court of Appeals has recognized that an award of pre-judgment interest is not mandatory, awarded in the Court's discretion. 33 See Maksymchuk v. but may be Frank, 987 F.2d (4th Cir. Gregory, 818 F.2d 1114, 1118 U.S. (1987); 1446 1072, 847 (9th However, 1077 Cir. the 1984), Fourth circumstances interest. Domingo v. that 1993) (4th Cir. Circuit For example, United 1987), cert, New England Fish Co., modified, would (citing 742 has F.2d 520 explained justify the States denied, that 1984)). there of the Fourth Circuit has 484 727 F.2d 1429, (9th Cir. denial v. are few pre-judgment found denial of pre-judgment interest to be appropriate "when the back pay award is not readily determinable or when the plaintiff fails to raise the issue in a timely or an appropriate manner." 987 F.2d at 1077 901, 909 interest (citing Scales v. J.C. Bradford & Co., (6th Cir. Donnelly, 1991); Domingo, 874 F.2d at 411-12 because Maksymchuk, 727 F.2d at 1446)); "[w]hether or not an award of interest The appropriate 494 U.S. pre-judgment 820 should is easily not whether the issue of mitigation was (citations omitted)), aff'd, accord (reversing a denial of pre-judgment be granted turns upon whether the amount of damages ascertainable, 925 F.2d 'close'" (1990). interest rate for cases involving federal questions is also an issue left to the Court's discretion. F.2d 1017, See 1031 interest rate, rate of affirmed Quesinberry (4th 1993) Life (en Ins. of interest, pre-judgment 34 and Co. banc). as provided by state law, pre-judgment awards Cir. v. our interest of N. The Am., local 987 state may be an appropriate Court at of the Appeals interest has rate provided by local state law. (affirming application of Hylind, Cir. a statutory Supp. 1998) Ford, Virginia's 966, interest 974 (E.D. 632 F. App'x 114 rate); Va. 987 F.2d at 1031 statutory interest 31 F. Supp. 3d at 742, aff'd, Maryland's 960 F. See Quesinberry, Cooper 1997), v. aff'd, (applying Paychex, Supp. at 391 Inc., 163 F.3d 598 (applying Virginia statutory interest rate). 984 F. rate); (4th Contra (calculating pre-judgment interest at rate corresponding to the average inflation rate for the back pay time percent period). (6%). Virginia's Va. Code Ann. back pay accrues over time, bi-weekly or monthly statutory interest § 6.2-302, rate is six In circumstances where as with the loss of wages payable in installments, a court may award "pre- judgment interest on each installment of salary from the date it would have been due, Sky Req'l V. Council, Waverly (W.D.N.C. less outside earnings." 572 F.2d 988, Partners, LLC, July 2014) 7, No. 993 (4th Cir. 3:10cv00028, Supp. interest, at 974-75 compounded a annually. (explaining that (awarding interest, statutory interest rate); WL Land-ofsee Smith 3105366, Further, *3 unless court may award preSee Cooper, 960 F. "common sense and the equities dictate an award of compound interest"); at 742 1978); 2014 (unpublished). principals of equity counsel otherwise, judgment Hyde v. Hylind, compounded annually, cf. Quesinberry, 31 F. Supp. 3d at the Maryland 987 F.2d at 1031 n.l3 (noting that its ruling "only directs the post-judgment award of 35 interest on interest, but it does not require compound pre- plaintiff that judgment interest"). With respect obtains a to post-judgment money judgment in a judgment interest judgment. See at 28 the U.S.C. on any money judgment a civil case is entitled to post- statutory § 1961(a) in a interest, rate from the date of ("Interest shall be allowed civil case recovered in a district court."). III. As noted above. Navy's pre- failure and argues fringe the Navy's accommodate, that interest. such benefits, Pl.'s Br. Plaintiff commence on June 27, With including back pay, award With respect should paid holidays, and lost pay, back pay, back wages wages, due respect to Supp. to argues Award of Back and Front Wages at 2. that the back pay period should 2011 and end on the date of judgment. front pay. Plaintiff argues that she Id. should receive three years of front pay in lieu of reinstatement. at the front to include for incorrect submission of credentialing information to Apollo MD. Further, Plaintiff seeks equitable damages post-judgment Plaintiff certain to DISCUSSION Id. 29. In response, the Navy raises several arguments. First, the Navy asserts that Plaintiff is not entitled to back pay or front pay because the Navy's unlawful employment action, 36 that is, the Navy's failure Plaintiff's to accommodate losses. Second, Plaintiff, the failed to mitigate her damages. Navy Third, if Plaintiff is entitled to back pay, be limited to damages did argues not that cause Plaintiff the Navy asserts that, the back pay period should suffered between February 26, 2012 (the date after which the Navy was found liable by the jury) and July 27, 2012 (the with TCA), the date Plaintiff resigned from her position and Plaintiff should not receive front pay. Navy argues because that that Plaintiff's any award of full wages back pay received for Finally, should be minimal interim employment must be deducted from such award and the Navy is entitled to a set-off of any back pay wages that Plaintiff received from TCA in settlement. regarding or front defense The Court will first address the Navy's argument causation before pay period. regarding determining The Court mitigation any applicable will and then address conclude by back pay the Navy's determining any damages amount due to Plaintiff, A. As explained above, victims of employer is claimant as a 1278 employment made Causation of Harm "[a]s part of the process of making the discrimination responsible only for whole, losses result of the discrimination," (citing Ford Motor Co., 458 U.S. the offending suffered Brady, at 231 n,15), 753 the F.2d at "Back pay is an appropriate remedy where discrimination causes a 37 by loss of pay, and reinstatement is warranted where discrimination causes unlawful termination." However, "it is claim gives Id. Holmes, clear rise to that not claim a for 2011 In the present case, WL every 1842868, at *8. failure-to-accommodate back pay and reinstatement." the Navy argues that it did not cause Plaintiff's damages because the jury found that the Navy failed to accommodate Plaintiff after February 26, 2012 to when Plaintiff initiated EEO counseling), at home and 'losing pay' the Navy's Mem. Regarding Back Pay Award The Navy asserts, workplace receiving was offers "by of Id. In work instead, her own Plaintiff that Plaintiff's absence from choice," accommodation (and lost pay) did not response. and "Plaintiff was well before any legal liability of the Navy could have attached." at 16. (45 days prior she argues because, did not that she even return was to "not after work. able to specifically and clearly because Defendant accommodate her (as found by the jury) and would not permit her to return to work until all accommodations were in place." 3, ECF No. The Pl.'s Resp. to Def.'s Mem. Regarding Back Pay Award, 328. Court finds instruction not place, failure prior to to to return that return the to Navy's work Plaintiff's to resulting loss of pay. work conduct, until an resignation, at Sewells and the Navy's accommodation was caused Point in Plaintiff's Clinic and the The evidence at trial demonstrated that 38 Plaintiff was Plaintiff return Crump instructed the Navy, to speak reasonably understood to work until Damages Green, by "re; Plaintiff, at 216:7-217:15; "re: RE: Return Navy, over an extended accommodation efforts, but Plaintiff. Due the to of PA accommodation process, period ultimately Navy's put Navy, in place. from Summer able resigned. to return to See Williams Crump," to AX-33; "re: Sorenson," PX-87. of time, failed to extended undertook accommodate and disjointed and the Navy's instruction not to return to work until an accommodation was put in place. not not who Email from Williams to Email from Badura to Crump dated 8/16/11, The the Email PA Summer Crump," AX-26; Green, individuals for an accommodation was Test, FW: or to work It follows, then, at Sewells Point Plaintiff was Clinic before she that Plaintiff's lost wages through the date of her resignation were caused by Defendant's unlawful conduct. See Tobin, be responsible held notwithstanding ' [i] f the inability the 553 F.3d at 141 for Press of Me., 473 F. Supp. to conduct caused damages.'" 364 F.3d 368, 2d at 1299 amount failure unlawful mitigate Inc., entire employee's employer's to the ("However, (quoting 384 the employer may of obtain the Johnson (1st Cir. lost salary another job employee's v. Spencer 2004))); Hudson, (finding that plaintiff was entitled to back pay because defendant had placed plaintiff on leave without pay, and later, "AWOL" status, 39 due to plaintiff's disability, which the jury found that defendant Szedlock, 139 F. Supp. 2d at 733 regarding causation extended period of caused plaintiff Further, because time" to to to accommodate); (rejecting defendant's argument defendant's failure "over accommodate plaintiff's pursue to the extent that failed and accept medical the Navy contends disability disability). that Plaintiff's understanding of the Navy's instructions was mistaken, did not correct for Plaintiff inability to the Navy such mistake with Plaintiff or arrange a to return return to to work work. at Therefore, Sewells Point an time Plaintiff's Clinic, and the resulting loss of pay, was due to the Navy's instruction not to return an to work until accommodation was in place Navy's ultimate failure to accommodate Plaintiff - and the as determined by the jury. B. Back Pay or Front Pay Period 1. Commencement of Back Pay Period Plaintiff asserts that the back pay period should begin on June 27, during a 2011 — the date she back pay calculation because the Navy was not, not requested accommodations, meeting with TCA employee Angela Green, work at Sewells Point Clinic. its first find the Navy, on However, the date to return to the Court cannot begin proposed by Plaintiff and — as instructed — the jury could liable for violating the Rehabilitation Act 40 prior to February 26, 2012 (the date 45 days prior to the date Plaintiff initiated EEO counseling). As discussed at trial, Opinion and Order, or after Plaintiff February [Plaintiff] 26, a 2012" reasonable accommodation (the 22; liable a Op. & Order at 70-74. discrete unlawful Further, to days 2012) before in order employment accommodate is a action discrete Jury as discussed above, back pay award related is upon which such discrete act takes place. failure 45 for violating the Rehabilitation Act. the starting point for calculation of a to date initiated EEO counseling on April 11, to be found Instr. and in the Court's summary judgment Plaintiff was required to prove that the Navy "failed to make or offer on Jury Instr. 22. tied to Therefore, discriminatory the date because a act, the Navy could not be found liable for such conduct before February 26, 2012. Thus, Plaintiff may not receive back pay for lost wages that arose before the Navy failed to accommodate Plaintiff or before the Navy could be accommodate. Accordingly, found liable Plaintiff wages incurred before February 26, for may not such failure recover for to lost 2012. Plaintiff urges the Court to recognize a dichotomy between the liability and remedy portions of a discrimination claim, and to find that, for while a statutory limitations period is important determining relevant for liability, such determination of a 41 limitations damages period period. is However, less the cases cited unavailing cited by by Plaintiff in a in support "discrete act" Plaintiff simply case of her such as demonstrate that argument this. a The relaxing limitations period for consideration of damages where "[t]he employment a . . . occurs over cases of the takes place cases of continuing violations — that is, practice' are series in 'unlawful of days or perhaps years and, in direct contrast to discrete acts, a single act may not of 536 harassment U.S. at 115 Prefabricators, be actionable on added) ; see (emphasis Inc., 438 F. Supp. 176, U.S.C. included the "to employers years" limit who and have unlawful practices cases for seeking damages damages that period for the extends Miami (S.D. Fla. 1977) two-year defendant in for a beyond recovered from discrimination has been engaged continuing violation, the 180- resolution, cases, is a limitation such limitation was such an extended period of seeking Rehabilitation Act engaged Morgan, v. back pay which could be been " [w] here § 2000e-5 (g) (1) , own." Miller 181 (explaining that while Congress provided a on back pay in 42 its or for many in such time"). a In period of 300-day ADA statutory or 45-day reasonable means of defendant employer's continuing violation which, period in remedying a by definition, is pervasive and ongoing, but perhaps not easily detectable or demonstrable based upon a single instance. suffering a continuing violation 42 is Often, xinaware a plaintiff of the discrimination and would should seek charge of by necessarily initiating discrimination. (describing discrete redress not the act violation, transfer, differences See In "such as termination, that counseling Morgan, between violations). or refusal EEO know 536 he or U.S. continuing contrast, are at a 113-19 violations and discrete act a easy to she filing failure to promote, to hire[,] or denial of identify,"" and "[e]ach incident of discrimination and each retaliatory adverse employment decision constitutes a employment point practice'" which a separate actionable plaintiff might recognize from which to begin seeking resolution. Plaintiff's violation, regarding failure the the to Court accommodate is purported not claim persuaded distinction by is 'unlawful Id. not a Thus, the a as continuing Plaintiff's between as argument liability and remedy phases of a discrimination claim. Plaintiff further argues that the "make whole" purpose of back pay requires calculation of back pay in this case to begin Our Court of Appeals has stated, "failure to accommodate constitutes in an unpublished opinion, a discrete act rather that a than an ongoing omission." Hill v. Hampstead Lester Morton Court Partners LP, 581 F. App'x 178, 181 {4th Cir. 2014); accord, e.g., Ayala v. Shinseki, 780 F.3d 52, 57 (1st Cir. 2015); Mayers v. Laborers' & Safety Fund of N. Am., 478 F.3d 364, 368-69 (D.C. Cir. 2007). Health " Further, as Plaintiff's claim is against a government entity and the Rehabilitation Act constitutes a limited waiver of the government's sovereign immunity from suit, questions regarding such waiver must be "strictly construed, in terms of its scope, in favor of the sovereign." Lane v. Pena, 518 U.S. 187, 192 (1996) (citations omitted). 43 at the point Plaintiff However, when lists Plaintiff several first cases sought in accommodation, support of such and argument. such cases do not undermine the Court's conclusion that the back pay period may not begin prior to the date on which the Navy may be found For Plaintiff example, Perry Div., 445 F. Supervisors of day requirement on equitable for its cites Supp. L.S.U., proposition that limitation liable 65 discrete Fannie v. Chamberlain Mfg. F.2d 971 an administrative (5th Cir. limitation 1983), period for which However, a the complaint a See 445 F. allege a the the 45- is can addressed violation involving sex discrimination. and Two of case) plaintiff Fannie for (such as to seek EEO counseling in this the Corp., (W.D. Pa. 1977) and Berry v. Bd. of 715 damages. ("Counts One discriminatory act. not a recover continuing Supp. at 69 historical and continuing pattern and practice of discrimination against female employees remand based to the plaintiff's upon district Equal because "[t]he remedy, for it their Pay theory has sex."). court Act may been for claim also be stated Berry, further, determination was a that whether continuing relevant to '[o]nce a may also recover for portions of the violation plaintiff's having discrimination continuing into the actionable period, plaintiffs ordered the . shown . . the persistent process of illegal discrimination that antedated the limitations period.'" 715 F.2d at 979-80 (quoting Laffey v. 44 Nw. Airlines, 567 F.2d 429, Marinelli 1998), v. 472 (D.C. City of Cir. Erie, 1976)). 25 F. Plaintiff's Supp. 2d 674, citation 679 (W.D. to Pa. is equally unpersuasive because the district court's back pay award, beginning on the date "the jury determined that the City became aware that the plaintiff needed an accommodation," was vacated by the Court of Appeals for the Third Circuit.^® Marinelli Further, v. City Plaintiff's Corr. , 229 Yellow Freight (S.D.N.Y. for F. losses period.^® " 9, are 2d 938 Inc., 216 to Arlt (E.D. No. F.3d Mo. while F. of the Supp. and 2002 2000). Dep't of E.E.O.C. v. WL 31011859 which awarded back pay it is were at damages 940 seeking unclear whether, applicable 2d Cir. Missouri 2002) the plaintiffs' outside 229 v. (3d plaintiffs unconvincing because here, 354 98cv2270, (unpublished), began arose Arlt, Pa., citations 2002) asserts Freight Erie, Sys., that Plaintiff Yellow Supp. Sept. accommodation, as of See in Arlt and statutory time (finding that The Court notes that the Third Circuit's opinion does not address the award of back pay at all because the Third Circuit vacated the jury's finding of liability, making any discussion of back pay unnecessary, " It is further unclear whether the E.E.O.C., as the plaintiff in Yellow Freight, is bound by the ADA statutory limitations period. Due to the E.E.O.C.'s ability to bring an enforcement action, not only to benefit specific individuals but to "vindicate the public interest in preventing employment discrimination," several courts have held that the 180- or 300-day ADA statutory limitation applicable to private party claims does not apply when the E.E.O.C. brings an enforcement action on behalf of the same parties. See E.E.O.C. v. Sterling Jewelers, Inc., No. 08cv706, 2010 WL 86376, *6 (W.D.N.Y. Jan. 6, 2010) (finding that the 300-day statute of limitations did not apply to the E.E.O.C. as plaintiff); E.E.O.C. v. 45 Freeman, No. 09cv2573, 2010 WL Rehabilitation Act plaintiff should receive back pay starting on the date he lost his plaintiff lost "Informal Resolution accommodation, 1999); such premium-pay position Request" and received a Yellow Freight, in job, but July explaining 1999, detailing then his filed an requests denial of his Request 2002 WL 31011859, that at *7-10 for in October {finding that ADA plaintiff should receive back pay beginning on the date he was cleared September to return 23, 1994, to work but but was explaining not that allowed to plaintiff do so, filed a grievance with the union in September 1994). Therefore, case on the Court will begin the back pay period in this February the Navy could be found liable for violating the Rehabilitation Act. The Court recognizes that the the Navy had failed 26, date 2012," 26, 2012 — the see Jury Instr. it day 22, determined Plaintiff "on or after February and did not provide a the Navy pertinent unlawful employment practice. to Court explained above, the Navy's work accommodation ultimately its lengthy found to be a have However, begin the back pay period on February 26, and on which jury's verdict simply found that to accommodate upon which first committed 2012 because, process, to the the Court will instruction not failure specific as the to return to which accommodate, the jury predated 1728847, *2 (D. Md. Apr. 27, 2010) (stating that courts are split on whether the 300-day statute of limitations applies when the E.E.O.C. brings an enforcement action and listing cases for comparison). 46 February 26, 2012 and prevented Plaintiff from returning to work at Sewells Point Clinic, as of 649 February 26, F.3d award 374, claim); Sutton, back pay 2012. 385 commenced and Plaintiff had not returned to work (5 th 3 00 See McClain v. Cir. days 2011) before on the that plaintiff filed the date Indus., (explaining 2004 WL 603477, at *6 calculation Lufkin Inc., back his pay EEOC (beginning the plaintiff's that the 4 5-day limitation period began) 2. Conclusion of Back Pay Period Plaintiff argues that she is entitled to an award of back pay through the date of judgment. that, if Plaintiff is entitled period should end on July resigned from her 27, In response, to any back 2012 — the position with TCA at the Navy asserts pay, date Sewells the back pay that Plaintiff Point Clinic. The Court agrees with the Navy on this point and finds that the appropriate date period is July 27, " The on which 2012, Court notes that to conclude Plaintiff's back pay the date on which Plaintiff effectively it is possible that the jury, having been instructed that they could not award damages before February 26, 2012 if such liability was determined, found no reason to rely on instruction because they coincidentally found that the discrete act of failure to accommodate just so happened to occur on February 26, 2012. Moreover, based on the evidence presented at trial, such a coincidental finding would be reasonable because, due to the Navy's long-delayed interactive accommodations process, the jury could have easily found that it culminated with a failure to accommodate on February 26, 2012. See Jury Instr. 28 ("An employer's delay in providing reasonable accommodation may violate the Rehabilitation Act."). Thus, the Court finds that beginning the back pay period on February 26, 2012 is appropriate. 47 deprived herself of joint employment with the Navy and rejected the Navy's offers employment and return work to equivalent" of accommodation, accommodations at Sewells position to the would Point one because have allowed Clinic that such in a Plaintiff joint Plaintiff to "substantially sought in June 2011. As explained above, back pay calculations conclude when judgment is entered by a court. calculations may demonstrates be that cut i t made short a if a reasonable and the plaintiff failed to accept a at 232; Brady, stated, in the offer of an back pay of employer reinstatement, "substantially equivalent" 753 F.2d at 1273. context However, defendant position by refusing such reasonable offer. 458 U.S. typically See Ford Motor Co., The Supreme Court has unlawful termination, that "[a]Ithough the unemployed or underemployed claimant need not go into another line of demeaning position, he refuses a job denied." work, accept a his right forfeits substantially Ford Motor Co., demotion, equivalent 458 U.S. or to back[ to the at 231-32 take a ]pay if he one he was (emphasis added). The Court finds the facts in Ford to be analogous to the present case the where: Navy's (1) Plaintiff failure to was provide unable an to accommodation, tardily made an offer of accommodation Plaintiff to return to work (on terms 48 return to work (2) due the that would have to Navy allowed substantially equivalent to those requested by Plaintiff) , and offer of accommodation.^® App'x 292, to cut 298 off (6th Cir. back pay discrimination in suit (3) Plaintiff refused such See Aston v. Tapco Int'l Corp., 631 F. 2015} (unpublished) failure because to (affirming decision accommodate plaintiff and disability rejected defendant employer's unconditional offer for reinstatement). The Navy has demonstrated that it made a of reinstatement which June Plaintiff 2012. to Plaintiff received The and Navy's in its May discussed May 24, 24, with 2012 reasonable offer 2012 memorandum, Commander in offered memorandum Neill to Plaintiff the accommodation of ordering and installing the Z-150 video phone device, to Crump Re: if such device was approved. Mem. from Navy Status of Reasonable Accommodation Request, AX-118. Though belated, the Navy's offer was implementation of such offer, of the Z-150 video phone, that is, reasonable because, while approval and installation required additional time, the Navy did not withdraw or modify its offer at any point before Plaintiff resigned or condition Further, Plaintiff sounded like The offered Court in does the offer on at trial that such "great accommodation," a its and, during conceded not Navy's address May here 24, any whether 2012 action the other Memorandum were by Plaintiff. accommodation her meeting accommodations sufficient to provide Plaintiff with a reasonable accommodation. Instead, the Court merely addresses the Navy's offer to provide the Z-150 video phone as such offer would have allowed Plaintiff to return to work on the almost identical to those she originally requested. 49 terms with Commander Neill, Plaintiff try such accommodation. Based on Plaintiff's such accommodation, Feb. communicated her agreement 22 Crump Trial Test, apparent cooperation and at 42:2-10. agreement with the Navy moved forward with getting the 150 video phone approved, ordered, to Z- and installed at the Sewells Point Clinic. However, installed, communication between went awzy. 19, of while the Z-150 video phone was being ordered and the Navy accommodation phone. Plaintiff again Plaintiff did not contact the Navy after the June 2012 mediation with Commander Neill her and Having and to determine installation of from resigned the TCA on July the 27, the status Z-150 2012, video Plaintiff then submitted such resignation letter to the Navy and refused the Navy's offers of accommodation, including the offer of Z-150 video phone, via letter dated August 9, AKS to Neill dated May 24, explained re: Status 2012, that constructively of AX-107. Plaintiff discharged Reasonable 2012. believed from TCA and Letter from Accommodation Plaintiff's August 9, that she the Navy the Request 2012 letter had due been to the failure to respond to Plaintiff's request for accommodation for over 13 TCA, and months. sent Id. such Plaintiff resignation submitted letter to her the resignation Navy, to before installation of the Z-150 video phone was complete on August 15, 2012. Similarly, Commander Neill did not reach out to Plaintiff 50 during the time Plaintiff's between July 27, later August 9, 2012 the the Navy, or the 2012 19, resignation letter actual June 2012 letter communicating functioning mediation to such TCA, and or the resignation installation of the to Z-150 video phone on August 15, 2012. Plaintiff accommodation damages by may not that reject would returning to have a reasonable allowed her her position at Sewells of mitigate to offer her Point Clinic, even if the Navy had previously denied her an accommodation or if implementation of a suitable accommodation was not immediate. While Plaintiff "reasonably was out diligent in of work, seeking siabstantially equivalent" and she was accepting s^ Ford Motor new to be employment to that of which she was deprived due to the Navy's unlawful employment conduct. 1273; required Co., 458 U.S. at Brady, 231. 753 F.2d at The Navy has demonstrated that it ultimately made an offer of accommodation that would have allowed Plaintiff to return to her position at Sewells Point Clinic with an accommodation the one that Plaintiff sought. Navy's offer and, refusing a in doing so, almost Plaintiff, however, identical to rejected the failed to mitigate her damages by "substantially equivalent," i.e. identical, position to the one that she sought with her requests for accommodation. Plaintiff also of accommodation was has not demonstrated unreasonable, 51 that the insufficient, Navy's or made offer in bad faith such that she might continue to though she rejected the Navy's offer. of Transp., 597 F.3d 1160, 1183 accrue back See Brown v. (11th Cir. pay Ala. 2010) even Pep' t (explaining that a plaintiff's rejection of an employer's unconditional job offer may not end the accrual of potential back pay liability where the employer's offer is not made in good faith, the employee's rejection of omitted)); Toledo (10th Cir. 1989) does not end rejection offer of ("Moreover, offer the 1246 (S.D.W. to her. circumstances liability reasonable 1988) given Defendant's has her the claimant's form it." Inc., "[t]he Plaintiff has offer was made by Shoe giving 1493 reinstatement the surrounding 1481, of the (citations 678 F. Supp. (granting summary judgment on the the she (citations F.2d if Shoe Show of Virginia, Va. Furthermore, 892 rejected offer of circumstances contradict unconditional Inc., ]pay was issue of back pay because facts a back[ omitted)); Hopkins v. 1241, the offer is reasonable Nobel-Sysco, ongoing the and v. or where not Show and was to raised any position pointed reason not to reject that an rejected by any the special offer."). Plaintiff's argument that the Navy's offer of accommodation was unreasonable because, had not yet been as of June 19, approved and 2012, the Z-150 video phone installed, particularly because Plaintiff knew, is unpersuasive, as of that date, that such installation had not yet taken place, yet she still found the Z52 150 video phone to be a "great accommodation." Feb. Trial Test, Further, 2012 when she resigned, at 42:2-10. Plaintiff additional had no investigation as of July 27, indication, to and determine, did whether 22 not Crump do any approval or installation of the Z-150 video phone was being delayed.^' Thus, Plaintiff's accommodation, failure accept the Navy's regarding the Z-150 video phone, for reinstatement, back pay resignation from TCA joint employment, 2012, offer of and opportunity results in the forfeiture of the remainder of Plaintiff's July 27, to damages. Therefore, effectively because deprived Plaintiff's her the of Navy's the Court will conclude the back pay period on the date that Plaintiff resigned her position at Sewells Point Clinic and effectively refused the Navy's offer of accommodation that would have allowed Plaintiff to mitigate her damages and return to work with the accommodation that she originally sought. / 3. Front Pay An award of front refused to award front her damages by reinstatement. " The Court pay is pay where a unreasonably See Hurley, notes that, discretionary plaintiff refusing 146 during F. a fails good App'x at summary and in have to mitigate faith 3 68; judgment courts offer of Graefenhain, this matter, Plaintiff stated that she did not learn that the Z-150 video phone was approved, installed, or operational until March 2013. See Pi.'s Mem. of Law in Opp'n to Def. Navy's Mot. for Summ. J., Ex B, Affidavit of Summer Crump, 142, 205, ECF No. 112-3. 53 870 F.2d at 1203. mitigate her As the Court found above, damages by refusing accommodation, which would have work accommodation with an the allowed that Plaintiff failed to was Navy's Plaintiff almost offer of return to to identical to the accommodation that Plaintiff requested. The Court further finds that offer of Plaintiff's refusal was unreasonable. Z-150 video functional, "great was not she still accommodation" Additionally, the at found and the yet time approval do of Plaintiff installation Plaintiff's any additional the Z-150 would be refusal of Z-150 to accommodation as of June 19, 2012, the installed, approved, the agreed or video phone try such resigned to be a accommodation. refused the Plaintiff had no indication, Navy's offer of accommodation. did not Navy's Plaintiff knew that, phone but of and investigation to video phone had completed. the determine, been Finally, Navy's and offer denied the of whether or Court when finds accommodation regarding the Z-150 video phone to be unreasonable because the evidence at trial demonstrated that Plaintiff's accommodation was temporary and dwindling. to use a year so for any Plaintiff's ability telephone without accommodation improved throughout the following that need her cochlear implant she did not revision surgery — so much "require an accommodation" when she began work at Patient First or Team Health in July and August 2012.^° Plaintiff explains in her Response 54 to the Navy's Brief that Feb. 22 Crump Trial Test, stated at trial that, at 129:22-130:14. by September 2012, Further, she no Plaintiff longer needed any assistance with telephone calls. Id. at 113:11-16. these of reasons. accommodation Plaintiff's also prevents refusal an award the of Navy's front For all offer pay of because Plaintiff unreasonably refused the Navy's offer of accommodation and opportunity for reinstatement. Further, the Court finds that an award of front pay is not appropriate because Plaintiff. The such evidence interim earnings in 2013, or exceeded the amount were working at Sewells award at would trial result in demonstrated a windfall that to Plaintiff's 2014, and a portion of 2015 either met she otherwise would have Point Clinic.While earned if it appears she that Plaintiff did not need to request an accommodation at Patient First or Team Health because she had purchased an iPad and was able to use the NTouch Mobile program while working with CompHealth. See Pl.'s Resp. to Def.'s Mem. Regarding Back Pay Award, 5 n.7, ECF No. 328; Feb. 22 Crump Trial Test. at 35:21-36:8. However, such argument is unpersuasive because Plaintiff provided no evidence that she used the NTouch Mobile program on her iPad while working at Patient First or Team Health, or that the reason why she did not need to request an accommodation at Patient First or Team Health was because she provided her own video phone device. The Court is unpersuaded by Plaintiff's assertion that the Court should not consider Plaintiff's "productivity bonuses" from Patient First or Plaintiff's earnings from "supplemental employment" in determining the amount of Plaintiff's interim earnings. First, with respect to Plaintiff's "productivity bonuses," the evidence at trial demonstrated that such bonuses were an expected part of Plaintiff's compensation from Patient First and in fact were included in every one of Plaintiff's paychecks from Patient First that were provided to the Navy and discussed at trial. Crump Damages Test, at 67:3-70:21 Further, such bonuses are not detailed separately on Plaintiff's W-2s, but are included as part of Plaintiff's yearly income in 2012, 2013, 55 Plaintiff's First, positions with CompHealth, or Apollo MD are not a position at Sewells travel requirements, requirements, provided Plaintiff windfall Sewells requests, of up to Clinic, due comparable Point Clinic. would or therefore double the Patient First 2012 W-2, Patient the to her increased hours, and increased productivity- An amount PX-244; from higher award of provide of earned working at Sewells Point Clinic. and 2014. to interim earnings with Health, "substantial equivalent" pay differences, Plaintiff's Plaintiff received at Point Team such positions pay than front Plaintiff wages Thus, she she pay, as with would a have even if an award Patient First 2013 W-2, PX- 247; Patient First 2014 W-2, PX-322. As explained above, "the amount of the back pay award should be *reduced by any earnings acquired during the interim period regardless of the type of work involved.'" Brady, 753 F.2d at 1275 (quoting Merriweather, 631 F.2d at 1168) (emphasis added). Thus, the Court must consider Plaintiff's bonuses from Patient First, particularly as such bonuses were a constant part of Plaintiff's wages, in determining the amount of interim pay Plaintiff received from Patient First. Second, with respect to Plaintiff's "supplemental employment," the evidence at trial demonstrated that Plaintiff's work with CompHealth and Team Health was not mere "moonlighting," which she could have performed while employed at Sewells Point Clinic. See Lilly v. City of Beckley, W.Va., 797 F.2d 191, 196 (4th Cir. 1986) (explaining that courts have held that "if the plaintiff could have held both the supplemental job and the job he did not receive because of discrimination, the earnings from the supplemental job will not be used to reduce the back pay award" (citations omitted)). Instead, Plaintiff's shifts with CompHealth and Team Health were sporadic and were scheduled in a highly different fashion from Plaintiff's work at Sewells Point Clinic, indicating that Plaintiff could not have held such positions while working at Sewells Point Clinic. Additionally, Plaintiff testified that she took the CompHealth job because i t was a short term position that would allow her to easily return to work at Sewells Point Clinic, and Plaintiff's employment at Team Health began only shortly before her resignation from Sewells Point Clinic, demonstrating that such positions were not mere moonlighting jobs, but were intended to be a flexible replacement for P l a i n t i f f ' s income from Sewells Point Clinic. 56 of front pay were not foreclosed by Plaintiff's choice to resign and refuse the Navy's offer of accommodation, front pay would not be appropriate because such award would place Plaintiff in a better financial circumstance than she would have enjoyed had the Navy not failed to provide her an accommodation. Therefore, the Court denies Plaintiff's request for front pay. C. Mitigation Having Court now period. determined addresses the the appropriate issue of back pay mitigation period, during the that time The Navy argues that Plaintiff has failed to mitigate her damages because, as the Navy's expert witness Dr. James Koch testified at trial, there were a positions available Plaintiff failed diligence." in to In Hampton pursue response. number of physician assistant Roads such in 2011 positions Plaintiff with does not physician assistant positions were available, "Plaintiff practice) practice . Award at employment, was and . not had . ." 7. able to to shift find her a job search in and 2012 and "reasonable dispute that but explains that her into field other (family fields of Pl.'s Resp. to Def.'s Mem. Regarding Back Pay Plaintiff argues that she reasonably pursued even while she was waiting for the Navy to respond to her requests for accommodation, initially taking a which resulted in Plaintiff temporary position so that she could return to work at Sewells Point Clinic once the requested accommodation 57 was in place. Id. While Plaintiff's award of back pay ends as of the date she resigned, thereby refusing the Navy's offer of accommodation regarding the Z-150 video phone, that the Navy has not demonstrated that, 2012 to July 27, 'reasonably substantially discharged.'" during the February 26, 2012 back pay period. diligent in seeking and to Szedlock, Plaintiff failed "to be that equivalent 139 F. the Court finds accepting from Supp. new employment which 2d at 734 she was {quoting Brady, 753 F.2d at 1273) . The Court mitigation First, limits efforts 42 U.S.C. or amounts to its the consideration back § 2000e-5(g)(l) pay period of Plaintiff's discussed states that "[i]nterim earnings earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce pay otherwise consideration interim allowable." of earnings, duty to mitigate is tied to and the (emphasis such back pay is deduction of determination inapplicable. and appears to the back added). Thus, Plaintiff's of If back pay is not allowable, demonstrated otherwise, its brief. Id. mitigation, otherwise allowable." not above. "back pay Plaintiff's The Navy has concede as much See Navy's Mem. Regarding Back Pay Award at 28 in ("Any final award using the gross wages method also would have to be mitigated to account for the $5,226.00 in wages Plaintiff earned from CompHealth during the February 26, 58 2012 to July 27, 2012 time period."). As the back pay allowable in this case begins on February 26, 2012 and ends on July 27, 2012, only Plaintiff's interim earnings during such period will operate to reduce the award of back pay. defendant relevance Second, employer's pre-violation after determining 649 F.3d at 385; plaintiff's the Court notes that, the is back pay period, Joe's Stone Crabs, pre-violation conduct conduct Inc., is of much like a of limited see McClain, 296 F.3d at 1276, limited so a relevance in determining whether he or she engaged in reasonable mitigation during the applicable back pay period. Here, Plaintiff sought to mitigate her losses by seeking employment even before she was required F.3d 768, to do 773 so. Cf. (10th Cir. N.L.R.B. 2016) v. Cmty. Health Servs., (explaining that 812 "employees who believe they have been unlawfully terminated have a duty to seek out substitute employment while they await a that issue," but "employees who are not but suffer other labor injuries — e.g., wage — have no duty to seek secondary decision on their unfair labor practices Dodge Lines, Corp. Inc. , v. NLRB, 314 313 N.L.R.B. U.S. 324, 177, 325 Board decision on unlawfully terminated reduction in hours or employment claim" 199-200 (1994))). pending a (citing Phelps (1941); 88 Thus, Transit the Court will not penalize Plaintiff for her efforts to mitigate her lost wages by deducting the amounts she earned before the back pay period — a time frame before the Navy could be found liable for 59 violation of the Rehabilitation Act — from the award of back pay. As discussed above, Plaintiff applied began to locations, the Inc., for employment thirty-five in of applications, demonstrate in attempting period. 287 and F. See App'x that to her Thompson (4th a 2011 and variety of The Court finds that Plaintiff v. 255 in geographic mitigate Benson 249, the September jobs, between February and May 2012. applications, relevant looking approximately number diligent" the evidence at trial demonstrated that Cir. range was of such "reasonably damages during the Cadillac-Oldsmobile, 2008) (unpublished) (affirming back pay award and finding that plaintiff's efforts were sufficient until March 18, to mitigate damages when 2004, Plaintiff Benson "from April submitted for approximately eighty-two separate positions, manager positions (internal her positions at banks, citations continued at automobile restaurants, omitted)). efforts to retail Plaintiff's find applications as well as businesses" applications, employment, 2003, including F & I dealerships, and 21, were and clearly successful because Plaintiff began working with CompHealth prior to commencement of the back pay period.The evidence at trial The Navy argues that Plaintiff should have sought out a permanent position when she began searching for employment in 2011. Navy's Mem. Regarding Back Pay Award, 18, EOF No- 324. However, the Navy's argument is unavailing. When Plaintiff began her temporary position with CompHealth in December 2011, she was still hopeful that the Navy 60 further demonstrates that, during the back pay period, Plaintiff worked as many shifts as she could with CompHealth and that she often worked assignment accepted, more for two than forty CompHealth. additional hours a week Plaintiff was when also she was offered, on and employment positions with Team Health and Patient First between February and July 2012. Finally, in addition to the three positions Plaintiff held when she resigned from Sewells Point Clinic, Plaintiff was offered an additional three positions in 2014, one of which she accepted. Therefore, the Court finds that the Navy has failed to demonstrate that Plaintiff's award of back pay should be reduced or eliminated completely for failure to mitigate damages during the back pay period. would provide her an accommodation and, indeed, Plaintiff had limited information with which to determine whether the Navy had denied her requests for accommodation. The Court notes that Plaintiff's decision to accept a temporary position with CompHealth during the back pay period was not unreasonable because such position would have allowed Plaintiff to return to her position at Sewells Point Clinic once an appropriate accommodation was put in place. See Boyd v. SCM Allied Paper Co. , No. 84cv241, 1986 WL 15558, *15 (N.D. Ind. June 16, 1986) (unpublished) ("Under the circumstances that surround Boyd's lay off it was reasonable for him to be self-employed and not seek a permanent position because he expected to be recalled at any time. By November 1983, however, when it became clear to Boyd that he would not be rehired, Boyd had a duty to mitigate his damages."). The Court limits its discussion of Plaintiff's work hours here to the hours Plaintiff worked for CompHealth, because evidence at trial demonstrated that such position was the only job from which Plaintiff earned income during the back pay period. See Bench Trial Tr. Excerpt, Koch Test., 123:16-124:15, Feb. 26 and 29, 2016, ECF No. 333 [hereinafter "Koch Damages Test."]. 61 D. Back Pay Award In calculating a calculated employee by determining would occurred . . Ford, F. 984 back pay . have and Supp. F.2d at 1275. "the earned the at Thus, award, 389 back pay amount difference had actual the the during omitted) ; as determined above, what the conduct wrongful earnings (citations between is not that period." see Brady, 753 Plaintiff is entitled to an award of back pay for losses incurred between February 26, 2012 and July 27, 2012. Such losses will be reduced by any interim earnings that she received during the same time period. With Plaintiff respect to the seeks an amount calculation of such accounting for her raises, and loss of fringe benefits, health, vision, holidays.^'' failed to continuing argues 40-hour dental, lost pay award, pay, annual including contribution for and disability insurance and paid In response, the Navy argues, first, that Plaintiff demonstrate raises that, or because work counting. life, back weeks, Third, that she insurance Plaintiff an the receive benefits. back Second, is seeking lost for holiday pay argues that award Navy should an wages would award of pay for the Navy for full be double back pay Plaintiff also requested back pay related to loss of wages from Apollo MD due to the Navy's submission of an incorrect credentialing report to Apollo MD. However, as Plaintiff was not offered a position with Apollo MD until December 2014, and the purported damages related to Apollo MD's credentialing period arose in 2015, such damages are far outside the back pay period determined above. Thus, such damages are not included as part of the Court's back pay award. 62 should be offset by any amount Plaintiff's settlement with TCA. of back pay addressed by The Court will address each of the Navy's arguments in turn before detailing its calculation of the back pay award in this matter. 1. Raises and Fringe Benefits First, regarding Plaintiff's raises and fringe benefits, the Court may include reasonably anticipated salary increases or fringe benefits in its back pay award if Plaintiff demonstrates that such raises or benefits were part of the earnings she lost as a result of the Navy's unlawful employment action. 9 F.3d at 343; Supp. the at 389. Court include Hylind, Supp. 3d at 741-42; Ford, 984 F. With respect to Plaintiff's anticipated raises, finds that consideration demonstrated at 31 F. See Long, trial Plaintiff's of award Plaintiff's that she was of annual scheduled back pay raise. to should Plaintiff receive a raise of $1.02 in September of each year of her employment at Sewells Point Clinic. received Plaintiff Crump such pay Damages raise in Test, at September 2010, left work for her cochlear implant she earned $52.02 per hour. Thus, raise in September 2011, that, during the and, Plaintiff at the time revision surgery, had Plaintiff been able to return to work after her revision surgery, hour 3:20-4:2. and received her pay Plaintiff would have earned $53.04 per back pay period. Further, the at least for the limited back pay period of 63 Navy concedes February 26, 2012 to July 27, 2012, a base pay rate of acceptable and the Navy's expert witness. $53.00 per hour is Dr. Koch, relied on a figure of approximately $53.00 per hour as a basis for his back pay opinion. Navy's Mem. in Opp'n to Pl.'s Br. Supporting Award of Back Pay and Front Pay, 8, ECF No. 327. Thus, the Court will calculate Plaintiff's back pay award based upon a base rate of $53.04 per hour. With lost pay respect insurance award to Plaintiff's benefits, does not benefits. "Back benefits. However, the Court include pay finds losses generally the requested that related includes burden reimbursement is on for Plaintiff's back to lost her insurance salary Plaintiff and to lost present evidence to establish the amount of back pay and lost benefits to which Indus., Aug. she is Inc., 31, entitled." No. 1999) Herring 4:96cv00081, 1999 (unpublished); see v. WL Thomasville 1937352, Edwards, Furniture *5 658 (M.D.N.C. F.2d at ("After an unlawfully discharged employee produces evidence support of burden of mitigate failed Point dental to her claim for back pay . . . the employer has 956 in the showing that she did not exert reasonable efforts to her damages." adequately Clinic included insurance (citations demonstrate that contributions benefits. omitted)). to Further, 64 Plaintiff her earnings her health, Plaintiff at Sewells vision, has has failed and to demonstrate the value of any contribution to her insurance benefits for purposes of calculating a back pay award. Plaintiff dental, testified vision, at trial that she received health, life insurance and disability insurance benefits while employed at Sewells Point Clinic and that TCA contributed to the costs for such benefits.^^ However, when questioned about such benefits on cross-examination, how much TCA contributed she point to a that TCA insurance to her 99. insurance benefits, nor could document or piece of evidence that demonstrated contributed to benefits all, at Plaintiff's or that value of TCA's contributions.^® 83:7; Plaintiff could not remember health, dental demonstrated or the Crump Damages Test, vision amount or at 74:23- see Letter to Plaintiff from TCMP Offering Employment, AX- The Navy concedes that there is some evidence that TCA paid Plaintiff also testified that she received other benefits (CME allowance, uniform allowance, paid vacation, etc.) while employed at Sewells Point Clinic. However, Plaintiff is not seeking back pay related to such other benefits; thus, the Court does not address such benefits here. On re-direct Plaintiff was able to refresh her memory and she testified that TCA contributed $317.12 bi-weekly to her health, dental, and vision insurance. Crump Damages Test, at 100:12-105:3. Plaintiff, however, was not able to point to any evidence, other than her own testimony, that supported her assertion that TCA contributed $317.12 bi-weekly to Plaintiff's health, dental, and vision insurance. Instead, the figure provided by Plaintiff on re-direct mirrors the amount that she paid for her medical insurance (excluding dental and vision insurance) while on medical leave during summer 2011. TCA/TCMP Benefit Tracking Summer Crump, PX-259. However, even if the Court were to credit Plaintiff's testimony that TCA contributed $317.12 bi weekly to her health, dental, and vision insurance, the resulting contribution benefit per hour amount, $3.96 per hour, is markedly less than the figure proposed by Plaintiff in her post-trial briefing. 65 for Plaintiff's Mem. Pay group life and in Opp'n to Pl.'s Br. at 20 n.l2. disability insurance. Navy's Supporting Award of Back and Front However, Plaintiff failed to provide any evidence demonstrating the value of TCA's contributions to her group life and disability insurance benefits. The only evidence Plaintiff provided at trial regarding the value or amount of any of her insurance benefits was a document detailing the amount of insurance premiums Crump Damages Summer that Test, Crump, Plaintiff paid while on medical at 84:5-86:15; TCA/TCMP Further, Plaintiff PX-259. pursuant to the "Leave of Absence" handbook, she understood that "if [she] for [TCA] providing in elect[ed] not [she would] that, the 20, during AX-2. from Sewells Point Clinic, [her] However, leave . TCA to return be required for the costs of the premiums paid by coverage Employee Handbook, Tracking testified provision to work at the end of the leave period, to reimburse Benefit leave. . . [TCA] ." TCMP after Plaintiff resigned she was not required to reimburse TCA for any insurance benefits to which TCA contributed, suggesting that TCA did not contribute to any health insurance benefits for Plaintiff. Crump Damages Test, at 86:16-87:12. Thus, as Plaintiff has failed to adequately demonstrate that she actually received dental contributions benefits Plaintiff has while failed for the working to cost at her Sewells demonstrate 66 of the health, Point value vision, Clinic, of and or as any asserted contributions working Plaintiff at to the Sewells back Point pay contributions.^' insurance for benefits Clinic, the loss the of she Court such received will not insurance while award benefit See E.E.O.C. v. Nutri/Sys., Inc., 685 F. Supp. " Plaintiff argued at trial that the reason why she presented limited evidence regarding the insurance benefits and contributions she received while employed at Sewells Point Clinic was because the Navy "stipulated that plaintiff was eligible and enrolled in various employee benefits offered and paid for by TCMP . . . Crump Damages Test, at 94:23-95:6. In support of such contention, Plaintiff referred the Court to the Navy's Statement of Undisputed Facts, included in the Navy's Memorandum in Support of Summary Judgment, ECF No. 83. The Navy's Memorandum states, at paragraph 22, that: Plaintiff was eligible for and enrolled in various employee benefits offered (and paid for) by TCMP, including a 401{k) plan, health insurance, dental insurance benefits, vision care benefits, group life insurance and short term disaibility benefits while working at BMC Sewells. DEX 1, #26-27, 32-33, 35-36, 38-39, not eligible for and retirement plan, thrift 43-44, 67-68. Plaintiff was did not enroll in any federal savings plan, or health insurance program offered through the Navy or the federal government. Id., #29-31, 41-42. Id. at 6. However, the Court does not interpret such statement to be a stipulation regarding TCA's payment of benefits. Instead, the Court reads such paragraph, made in the context of counter-mot ions for summary judgment regarding the Navy's status as Plaintiff's joint employer, to state that TCA was responsible for offering, and paying for the offering, of certain employee benefits. While the Court agrees that litigation, or the presentation of evidence on an issue, may be foreclosed when an issue has been waived due to a judicial admission, the Navy's statement quoted above is not a judicial admission. A judicial admission includes "'intentional and unambiguous waivers that release the opposing party from its burden to prove the facts necessary to establish the waived conclusion of law.'" Everett v. Pitt Cty. Bd. of Educ., 788 F.3d 132, 141 (4th Cir. 2015) (quoting Winter v. Wells Farqo Bank, N.A., 762 F.3d 339, 347 (4th Cir. 2014)). "A purported judicial admission is binding only if the statement is 'deliberate, clear, and unambiguous.'" Id. (quoting Minter, 762 F.3d at 324). The Navy's statement, made during summary judgment briefing, is not a "deliberate, clear, and unambiguous" stipulation that TCA paid, or contributed payment, for Plaintiff's employee benefits. Further, even if such statement were a stipulation, as Plaintiff claims. Plaintiff failed to demonstrate the 67 568, 571 (E.D. Va. 1988) fringe benefits because expenses was meager Westinghouse Elec. (denying request "evidence on these and unpersuasive" Corp., 576 F. for expenses fringe benefits and {citing Supp. and 704, Hunter 727 v. (S.D. Ohio 1983}}) . Alternatively, even if Plaintiff had provided sufficient proof that she received contributions to her insurance benefits while employed at Sewells Point Clinic, Plaintiff has failed to demonstrate that she should receive the per hour value of such benefits as requested in her post-trial briefing. Supporting Award of Back and the she fringe equal to a benefits Front Pay, received at hour figure, as discussed by Dr. Plaintiff Sewells value of $17.64 per hour. In her Brief argues Point that Clinic are However, the $17.64 per Koch at trial, represents the national average value of fringe benefits for a private sector employee in Statistics. Feb. March 2014, as Jury Trial Tr. 22 and 23, 2016, Test., 114:12-18, "Koch Damages Feb. ECF No. reported Excerpt, the Bureau Koch Test., of 2016, Plaintiff ECF No. presented Labor 246:21-247:3, 334; Bench Trial Tr. Excerpt, 26 and 29, Test."]. by Koch 333 [hereinafter no evidence or testimony that the value of the insurance benefit contributions that she received while working at Sewells Point Clinic were at value of TCA's contribution to such benefits, leaving the Court unable to calculate a back pay amount including the loss of such contributions. 68 all comparable figure, which fringe to such encompasses benefits contributions, Plaintiff's national a (sick average, national pay, insurance average vacation benefits, limited claim for health, a figure contributions inconsistent as proof is of the untenable. with the vision, 105:3 (stating on re-direct, recollection, Plaintiff's that TCA health, value such variety of retirement compares dental, of her life, lost such to and amount benefit figure that Crump Damages Test, is Plaintiff at 100:12- and upon being able to refresh her contributed dental, a how Plaintiff's reliance on benefit ultimately requested at trial. for pay, Further, fringe less etc.), disability insurance and holiday pay. such much $317.12 and vision bi-weekly insurance). to Therefore, the Court will not award Plaintiff back pay for the loss of any contributions to her insurance benefits. 2. Holiday Pay Second, Plaintiff regarding is not holiday entitled during the back pay period. to pay, the Court reimbursement for finds holiday that pay As Plaintiff is seeking to recover lost wages related to her inability to work forty hours per week at Sewells Point Clinic, she cannot recover pay that occurred during a forty-hour work week, not have would be, worked as but the would Navy have argues, 69 received for holidays for which she would pay. double-counting, Such recovery because the Court's back pay award particular work day week within the Waffle House, includes (holiday or not) back Inc., already pay period. 534 U.S. 279, lost wages during a See 297 any forty-hour work generally (2002) for E.E.O.C. v. ("As we have noted, it 'goes without saying that the courts can and should preclude double recovery by an the Nw., Inc. v. individual.'" E.E.O.C., 446 U.S. (quoting Gen. 318, 333 Larchmont Baptist Church Infant Care Ctr., 695, 707 awards Tel. (1980))); Inc., 956 F. co. of Evans v. Supp. 2d (E.D. Va. 2013) (declining to award multiple monetary related to front pay because double recovery amounting in [sic] not is demonstrated that she to do so a windfall"). entitled to would "permit Plaintiff has holiday pay in circumstances when such pay is already included in the award for back pay. Plaintiff further has not demonstrated that, chosen to work on a lieu of taking given holiday at Sewells paid holiday time off, such Point had she Clinic, in holiday pay would have been banked or paid to her in some other way.^® Therefore, The Court recognizes that there may be circumstances where vacation pay or sick pay, which accrues during employment, may be included as a fringe benefit in a back pay award. See Nichols v. Frank, 771 F. Supp. 1075, 1080 (D. Or. 1991) (awarding annual and sick leave that would have accrued during the time that the plaintiff was out of work due to discrimination), aff'd, 42 F.3d 503 (9th Cir. 1994). Contra McKenna v. City of Phila., 636 P. Supp. 2d 446, 459 (E.D. Pa. 2009) (rejecting back pay request for "banked" sick time, vacation time, and holidays that the plaintiff argued he lost due to wrongful termination). Plaintiff, however, holiday pay accrued in such a fashion. 70 has not demonstrated that her the Court will not award Plaintiff back pay for her loss of holiday pay. 3. Settlement Offset Finally, with respect to the Navy's argument that the Court should reduce Plaintiff's paid her in settlement, not appropriate satisfaction reduce a to rule," the Court finds the an instant "equitable TCA that such an offset is case. While doctrine [that] the "one operates to plaintiff's recovery from the non[-]settling defendant prevent the of involving joint F.3d 731, plaintiff from liability," assessment 205 in recovery by any back pay amount is tort-feasors, 737 (4th Cir. recovering twice traditionally Chisholm 2000), v. employed the same Court in cases Projects, UHP our from Inc., of Appeals has noted an exception to such rule. With respect to discrimination claims Housing brought defendant, entitled under the against whom a to a set-off of Fair Act, a non-settling monetary judgment is entered, such judgment amount for is not settlement payments made by a codefendant who settled before judgment. Pinchback Cir. v. 1990) request Armistead Homes Corp., 907 F.2d there was no federal law which the judgment amount should be reduced and a agreement a 1453 (4th {affirming denial of non-settling defendant's offset because releases 1447, See non-settling defendant only if intended it to have such effect 71 suggested that settlement agreement the parties to the (citing Zenith Radio Corp. V. Avery v. accord Hazeltine Research, United Edwards I:01cv85, v. 2002 (unpublished) Act, States, 829 Etowah WL Inc., F.2d 817, Timberlane 1794719, ("In the 401 U.S. *1 321, 819 343-48 (9th Condo. Cir. Ass'n (W.D.N.C. 1987))); No, July context of cases under the (1971); 1, 31, No. 2002) Fair Housing it appears that any defendants that remain until judgment are not entitled to a reduction of that settlements by former codefendants." at 1453)); 2d 456, full Bait. 475 (D. amount plaintiffs Neighborhoods, Md. of the will defendants"). 3:10CV00028, (unpublished) 2000) also 2012 WL LOB, Smith that Inc., $240,000 v. Waverly *1 the from F. Supp. fact the Partners, (W.D.N.C. damages 92 907 F.2d "LOB is liable for the notwithstanding 4086774, (noting v. (holding that receive Contra (citing Pinchback, Inc. judgment judgment based on the that settling LLC, Sept. 17, to No. claims related 2012) for employment discrimination and breach of contract may overlap and that defendant was entitled to argue for an offset of wage-based damages, to the extent that plaintiff's discrimination settlement compensated for such lost wages). The Court finds in Pinchback, while the the Fourth Circuit's reasoning and holding not directly present case. on point, Similar to to be the persuasive authority in facts in Pinchback, there is no federal statute at issue requiring that a judgment against the Navy be offset by TCA's earlier settlement 72 with Plaintiff among federal available in in this courts a matter. regarding Title VII statute addressing the Servs., Inc., n.7 (S.D. Ala. Emergency 4190714, Med. *4 09cv445, Mar. 15, Ass'n. (W.D. Pa. whether action, federal No. While U.S. 2012) of Nov. a the Dist. Pittsburgh, No. 2007) disagreement offset existence see Evans v. LEXIS (unpublished) 21, is settlement absent issue, 2012 there of a Weiser Sec. 124750, and is *10-11 Mavrinac 04cvl880, (unpublished), 2007 the v. WL Court finds that the silence of such federal statute counsels against allowing a set-off for settlement in the Title VII context because Congress has not manifested an intent that such set-off apply.See Sears v. Atchison, Topeka & Santa Fe Ry., Co., 749 Even if the Court were to find that it should look beyond the statutory silence to federal common law to determine whether a judgment in the Title VII context should be offset by a pre-judgment settlement amount, an issue the Court has not fully analyzed, courts that have done so have looked to the 42 U.S.C. § 1988 framework and found that such federal common law must be compared to state law and, if the two bodies of law are inconsistent, state law must be applied. See Mavrinac, 2007 WL 4190714, at *5 (discussing the application of a settlement offset rule in the Title VII context and looking to the analogous circumstances and language of 42 U.S.C. § 1988 to determine how to resolve such issue (citing Goad v. Macon Cty.. 730 F. Supp. 1425, 1426 (M.D. Tenn. 1989))). As the court in Mavrinac v. Emergency Medical Association of Pittsburgh found, "the federal law, as well as the legislative history of Title VII, are silent on the issue of the availability of set[-]off to a non[-]settling defendant in a Title VII action." I^; see also Evans, 2012 U.S. Dist. LEXIS 124750, at *11 n.7. Virginia law, however, allows offset "when a release or a covenant not to sue is given in good faith to one of two or more persons liable for the same injury to a person or property, or the same wrongful death . . . ." Va. Code Ann. § 8.01-35.1(A); see William H. of Christ, Gordon Assocs., Inc. v. Heritage Fellowship, 291 Va. 122, 784 S.E.2d 265, 276-78 (2016). United Church To the extent that Virginia law applies to the issue of settlement offset in this case, the Navy has not demonstrated that the instant back pay award 73 F.2d 1451, 1454-55 defendant's (10th request for Cir. 1984) contribution (rejecting in Title non-settling VII action from codefendant who had previously settled, relying on the Supreme Court's common refusal to find a federal law right of contribution against a non-party union in the Title VII context (citing Nw. 77, 98 Airlines, (1981))). Inc. Thus, v. Transport Workers Union, the Navy is not entitled 451 U.S. to a set-off from the present back-pay award for any settlement payments made by TCA. Alternatively, even if application of the "one satisfaction rule," recognized in Chisholm, Navy has related not to demonstrated TCA's that settlement requirement for the were applicable in this case, it with damages arising from a single, receive Plaintiff. 'one satisfaction rule' recovered by settlement and the F.3d at 737 should (5th Cir. 485 (8th Cir. 1982); Harris essential judgment must represent common indivisible harm." v. set-off is that the amounts (citing Howard v. General Cable Corp., 358 "The a the Union Elec. Co., Chisholm, 205 674 F.2d 351, 846 F.2d 482, 1988)). A non[-]settling defendant may claim an offset for amounts paid in settlement by other defendants only if two conditions are met. First, the non[-]settling defendant must demonstrate award (against which the same injury. . . that the settlement and the offset is sought) were for . Second, the injury must be should be offset by TCA's settlement with Plaintiff because the Navy has not demonstrated that it and TCA are liable for the "same injury." 74 indivisible such liability among that the there is joint and several settling and non[-]settling defendants, Velez V. Roche, {discussing 335 a F. Title Supp. VII 2d 1022, suit for 1042 (N.D. gender Cal. 2004) discrimination) (citations omitted). The because Navy it fails has not to satisfy the first step demonstrated that TCA's settlement back pay award at issue address the same injury. invites the Plaintiff Court to "inquire TCA to determine and into the whether settlement any Award regarding at such Plaintiff's agreement 29, the has settlement claims was Navy against intended not TCA, to and or As the between of the Regarding Back any what resulting address. and portion provided agreement above, While the Navy settlement is allocated to back pay," Navy's Mem. Pay noted evidence portion injuries, discussed of such above. Plaintiff and TCA entered into settlement shortly before trial, and Plaintiff and TCA concluded their settlement discussions morning that presumably trial would began. have Absent proceeded such to settlement. trial on her the Plaintiff ADA claim regarding TCA's alleged failure to accommodate and her claim for constructive discharge against TCA, Rehabilitation claims liable, against Act claim against TCA proceeded to TCA may have been subject 75 in addition to the Navy. trial, and Had Plaintiff's Plaintiff's TCA been found to an award of compensatory damages, equitable benefit-related attorneys' against damages fees. TCA, 45-day TCA would ADA claim have against § 2000e-5(e)(1) and or other here), constructive longer or discharge statutes of and any award of compensatory or would not have been limited to applicable against claim pay applicable period the (detailing Thus, be significantly TCA, limitations Act to front had Plaintiff proceeded to trial TCA's liability, Rehabilitation period). found Additionally, equitable damages the (including not Plaintiff's claim against limitations. damages the 180-day Navy. or to Plaintiff's See 300-day 42 U.S.C. limitations the potential injuries and damages that may have been addressed in the settlement agreement between Plaintiff and TCA are significantly broader than the limited back pay amount related to Plaintiff's lost wages between February 26, 2012 and July 27, the Navy had the 2012 that the Court opportunity during awards the here. Moreover, bench portion of the trial to seek to inquire into the specifics of the Plaintiff's settlement with TCA, the but did not do so. "one satisfaction rule" Therefore, even if application of were appropriate in this case, the Navy has not demonstrated that TCA's settlement and the back pay award back at pay issue award address against the the same Navy injury such should be that the offset instant by TCA's settlement with Plaintiff.^" The Court does not address the second step noted above, 76 i.e. whether 4. Having details The Court's Calculation addressed its award of determined above. the Navy's contentions, back pay damages owed to the Court now Plaintiff. As Plaintiff's back pay award will be calculated at a base rate of $53.04 per hour, with no additions related to fringe benefits pay). Using such figure. is $2,121.60 (insurance benefit contributions ($53.04 per hour times forty hours) and Plaintiff's eighty hours, two) . As Dr. or Plaintiff's weekly Koch testified at trial. ($53.04 per hour times lost wages amount times Plaintiff was paid on a bi-weekly basis and the back pay period, beginning on February 2012 and concluding on July 27, 2012, is equal to 10.857 bi weekly pay periods. 142:10. be holiday Plaintiff's weekly lost wages amount bi-weekly lost wages amount is $4,243.20 26, or Koch Damages Test, The Court finds Dr. reliable. including any Thus, equals $46,068.42, Koch's testimony on this point to Plaintiff's deductions or a at 111:8-112:11, 141:22- for gross back Plaintiff's pay interim award, not earnings, bi-weekly wage amount of $4,243.20 for 10.857 bi-weekly pay periods ($4,243.20 times 10.857). At trial, review of Dr. Koch further Plaintiff's during the February 26, interim 2012 testified that, earnings, to July 27, he based upon his determined that 2012 back pay period the injury is indivisible, because it determines that the Navy has failed to demonstrate that TCA's settlement and the instant back pay award address the same injury. 77 Plaintiff earned $5,226.00 from CompHealth. at 123:16-124:15. Dr. Koch further testified that, Plaintiff's 2012 $60,000 of income during 2012. account for such amount in earnings because amount, other W-2 he than statements, could not the of period was Koch's the Court CompHealth amount of Dr. Id. interim received $5,226.00, what from than not interim was that earned Dr. Koch's testimony on the on during did portion of CompHealth, earnings deduct however, Plaintiff's during Plaintiff. testimony will from in review of reported more Koch, determine $5,226.00 uncontradicted by uncontradicted Therefore, from Plaintiff's Plaintiff calculating during the back pay period." amount Koch Damages Test, this The point Plaintiff's the back Plaintiff's the back pay Court finds Dr. to be reliable. interim pay earnings period, gross in back the pay ($46,068.42) award, for a back pay award of $40,842.42." " As noted above, Plaintiff testified at trial that she began work with Team Health in July 2012. Feb. 22 Crump Trial Test, at 111:22- 112:4; Crump Damages Test, at 62:18-19. However, as the Navy has failed to demonstrate that Plaintiff received any interim earnings from Team Health during the February 26, 2012 to July 27, 2012 back pay period, the Court will not reduce Plaintiff's back pay award for earnings received from Team Health. The Navy also argues, in a footnote, that any back pay award must be reduced by the amount of federal and state taxes, social security and Medicare taxes that would have been deducted from Plaintiff's wages. Navy's Mem. Regarding Back Pay Award at 28 n.26. The Court agrees that the back pay awarded herein may be subject to certain federal and state taxes. See Hemelt v. United States, 122 F.3d 204, 210-11 (4th Cir. 1997) (addressing withholding of PICA and federal income tax from wages received in settlement of class-action ERISA lawsuit); Thompson V. C.I.R., 866 F.2d 709, 712 {4th Cir. 1989) (discussing the potential applicability of various tax consequences for damages awarded under 78 E. Pre- and Post-Judgment Interest Plaintiff has judgment interest, also requested that the Court award pre- compounded annually at the Virginia statutory rate of six percent, and post-judgment interest, on any award of back pay. The successful plaintiff Navy's Mem. Front does is not dispute eligible for in Opp'n to Pl.'s Br. Pay at Virginia Navy six 22. that, statutory not Therefore, address the the Court issue will "a interest." Supporting Award of Back and interest dispute rate appropriate interest rate to apply in this matter, does general, pre-judgment The Navy further does not percent in of award compound the be the would and the Navy interest. pre-judgment Plaintiff's award of back pay damages, that Id. interest on as discussed above, and the Equal Pay Act and Title VII) . However, the applicability of such taxes does not require the Court to reduce its back pay award. Instead, the Court finds that it is the parties' responsibility to withhold or pay the applicable federal and state taxes from such back pay award and seek any applicable return from the appropriate taxing authorities. See Thomas v. Cty. of Fairfax, Va. , 758 F. Supp. 353, 367 n.26 (E.D. Va. 1991) (noting that, in general, employer-paid back pay generally constitutes wages for purposes of federal and state withholding, tax authorities should receive their due, neither party should receive a windfall, and such principles were best satisfied "by having the County withhold taxes and remit them to the appropriate revenue authorities; plaintiffs may then seek to reclaim any excess withholding according to their individual circumstances") ,- Curl v. Reavis, 608 F. Supp. 1265, 1269 (W.D.N.C. 1985) (rejecting defendant's request to reduce back pay award to reflect plaintiff's state and federal withholdings and stating that "the Plaintiff's tax liability is a matter between the Plaintiff and the respective taxing authority"). Thus, the Court will not reduce Plaintiff's back pay award for payment of applicable federal and state tcixes, but will expect the parties to make the necessary withholdings and pay the necessary taxes from such award as required by law. 79 such pre-judgment award of pre-judgment installment the date 988, 993 the interest of will be interest Plaintiff's compounded will wages, be less annually. calculated on each earnings, from Hyde, F.2d interim they would have been due. (4th Cir. (rejecting argument that entire sum is 1978) due from the See, date of e.g. the The 572 "interest on breach, [because] interest would only have been payable on monthly salary payments as they became due"). begin on the first The accrual of pre-judgment interest will day of the back pay period, February 26, 2012, and will conclude on the date of this Opinion and Order. Further, award pursuant to 28 U.S.C. post-judgment interest § 1961, and such the Court will also interest shall be calculated as required by § 1961. IV. For the reasons stated be awarded back Plaintiff $40,842.42 percent CONCLUSION pay the damages Court in ORDERS the and pre-judgment interest thereon at a (6%) to pre-judgment installment above, be compounded interest of is to Plaintiff's annually. be As calculated salary, less set on that amount of rate of six forth each above, separate interim earnings, from the date i t would have been due to the date of this Opinion and Order. The Court further ORDERS an award of post-judgment interest beginning on the date of this Opinion and Order. 80 Having resolved Plaintiff's request for equitable damages, and as the jury verdict in this matter has already been entered, ECF No. 314, the Clerk is REQUESTED to enter judgment on the jury's verdict in favor of Plaintiff. The Clerk is REQUESTED to send a Order to a l l It is counsel of copy of this Opinion and record. so ORDERED. Mark S. Davis United States District Judge Norfolk, Virginia September ^ , 2016 81

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