Carmen Jean-Baptiste v. District of Columbia

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

CARMEN JEAN-BAPTISTE, )

)

Plaintiffs, )

)

v. ) Civil No. 11-1587 (RCL)

)

DISTRICT OF COLUMBIA )

)

Defendants. )

)

MEMORANDUM OPINION

A jury found for plaintiff Carmen Jean-Baptiste on her Title VII and D.C. Human Rights

Act (DCHRA) sexual harassment claims, her Title VII and DCHRA retaliation claims, and her

D.C. Whistleblower Protection Act (WPA) claims. Jean-Baptiste now moves [187] for equitable

relief pursuant to those three statutes.

I. BACKGROUND

The facts of this case are outlined in detail in the Court’s April 2013 Memorandum

Opinion denying the District’s motion for a new trial and granting a motion for remittitur. See

Jean-Baptiste v. Dist. of Columbia, __ F. Supp. 2d __, 2013 WL 1092896 (D.D.C. Apr. 24,

2013). Thus, only a brief summary follows here.

In 2006, Jean-Baptiste was hired as a lifeguard by the District of Columbia Department

of Parks and Recreation (“DPR”). The parties disputed whether she was hired as a seasonal or

year-round employee. Jean-Baptiste reported to Assistant Pool Manager Rodney Weaver and

alleged that Weaver sexually harassed her. After she reported Weaver’s conduct, she alleges that

Weaver and the District retaliated against her and ultimately terminated her employment in mid-

October 2006. Jean-Baptiste immediately reapplied for a lifeguard position. She failed two parts

of the lifeguard assessment that the Department administered, but complained about the way the

assessment had been conducted. She was not rehired. The District argued that she was

terminated because her employment was only seasonal and that she was not rehired because she

failed the lifeguard assessment.

A jury found for Jean-Baptiste on her hostile work environment and retaliation claims

under Title VII and the DCHRA, as well as her WPA claim. The $3.5 million verdict was

limited to compensatory damages and did not distinguish between the damages awarded under

each statute. The jury also took the unusual step of making policy recommendations to the

District of Columbia. Specifically, it recommended that the District “begin an EEO training

program for all DPR managers,” “rewrite DPR personnel policies to remove ambiguities about

the EEO complaint and investigation processes,” and “initiate a review of the actions, or lack of

action, taken by all DPR employees and managers at the Takoma Pool and Aquatic Program”

over the period during and immediately following Jean-Baptiste’s employment. Verdict Form at

4, ECF No. 185.

This Court denied the District’s post-trial motion for new trial or new trial on damages,

but granted the District’s motion for remittitur. Order, ECF No. 200. Jean-Baptiste subsequently

accepted a reduced compensatory award of $350,000. Notice of Acceptance of Remittitur, ECF

No. 202.

Jean-Baptiste now seeks equitable relief in the form of (1) back pay, plus pre-judgment

interest, from the date of her discharge to the date of final judgment in this case; (2)

reinstatement into the position she would occupy absent the retaliation she suffered (including

any training and re-certification required for that position, and front pay during any such training

2

or re-certification); (3) a permanent injunction ordering the District to refrain from any further

sexual harassment of or retaliation against her; and (4) an order requiring the District to take

affirmative steps suggested by the jury in its attachment to the jury verdict. Pl.’s Mot. Equitable

Relief 1–2, ECF No. 187 [hereinafter Pl.’s Mot.]; see also Pl.’s Mem. P. & A. in Support of Mot.

Equitable Relief 7, ECF No. 187 [hereinafter Pl.’s Mem.].

II. LEGAL STANDARD GENERALLY

Title VII provides:

If the court finds that the [employer] has intentionally engaged in . . . an unlawful

employment practice charged in the complaint, the court may enjoin the respondent from

engaging in such unlawful employment practice, and order such affirmative action as

may be appropriate, which may include, but is not limited to, reinstatement . . . with or

without back pay . . . , or any other equitable relief as the court deems appropriate.

42 U.S.C. § 2000e-5(g)(1).

Title VII gives district courts “wide discretion to award equitable relief. The district

court should fashion this relief so as to provide a victim of employment discrimination the most

complete make-whole relief possible.” Barbour v. Merrill, 48 F.3d 1270, 1278 (D.C. Cir. 1995)

(internal citations omitted).

The DCHRA also provides for equitable relief including “hiring, reinstatement or

upgrading of employees, with or without back pay,” “admission to or participation in a program,

apprenticeship training program, on-the-job training program or other occupational training or

retraining program,” D.C. Code §§ 2-1403.13(a), 16(b), and, where necessary to “prevent

irreparable harm,” temporary restraining orders and preliminary injunctions, D.C. Code § 2-

1403.07.

Finally, the WPA identifies available relief as reinstatement to the same position held

before the prohibited personnel action or to an equivalent position, restoration of lost benefits,

back pay and interest on back pay, and injunctions. D.C. Code § 1-615.54(a)(1)(A)–(E).

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III. DISCUSSION

A. Reinstatement

Jean-Baptiste seeks reinstatement into either a year-round lifeguard position or a higher

level CS-11 aquatics facility management position. Pl.’s Mem. 9. She argues that a CS-11

position would offer her union protections and that she is qualified to serve in such a position.

Id. She suggests that progression from lifeguard to a facility management position in the seven

years since her termination would represent a career trajectory similar to that of Sean Link, who

served as the “Aquatics Program Manager,” or “Aquatics Director.” Trial Tr. 58, Aug. 8, 2012.

Should Jean-Baptiste require additional certifications, she seeks front pay until she can receive

the certifications and reimbursement for the cost associated with the certifications. Id. at 9–10.

The District opposes reinstatement, promotion, or front pay, arguing that Jean-Baptiste

lacks the qualifications to hold a lifeguard position. Def.’s Opp’n to Pl.’s Mot. Equitable Relief

4, ECF No. 211 (citing Franks v. Bowman Transp. Co., Inc., 424 U.S. 747, 773 n.31 (1976)).1

Moreover, the District argues that promotion would be unduly speculative, suggesting that

plaintiff is unlike former Aquatics Director Sean Link who “ultimately served a supervisor at the

end of his eighteen year period with DPR.” Def.’s Opp’n 5. Finally, because the District avers

1

The District attempts to submit two documents as Exhibit 2 to its Opposition. The first is a letter prepared by

David Brooks reporting that Jean-Baptiste failed a recent water skills evaluation and two versions of a written exam

entitled “CPR/AED for the Professional Rescuer and First Aid.” The second document contains Jean-Baptiste’s

responses to that written exam. Jean-Baptiste moves to strike the exhibit, arguing that it is an unsworn statement

and that the defendant has not identified the qualifications of the person who prepared the document. Mot. Strike,

ECF No. 216; Mot. Strike, ECF No. 223. The District argues that the evidentiary standards cited by Jean-Baptiste

do not apply to a motion for equitable relief and also submits an affidavit from Mr. Brooks to address the District’s

concerns. See Def.’s Opp’n to Pl.’s Mot. Strike Def.’s Ex. Two 2, ECF No. 218. The affidavit of Mr. Brooks states

that he is employed by DPR as a Recruitment and Lifeguard Trainer and that Jean-Baptiste attended a four-day,

thirty two hour course he gave in April 2013. Jean-Baptiste urges the Court not to consider “this late-submitted

evidence.” Pl.’s Mot. Strike Lodged Sealed Document 2, ECF No. 223. Jean-Baptiste also argues that the affidavit

fails to state that “everything in the original letter is true or correct.” Id. at 3. The Court need not resolve this

dispute and will deny the motions to strike as moot because, as explained in more detail below, the Court finds the

exhibits irrelevant to its decision.

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that plaintiff lacks the qualifications to hold the lower ranked position of lifeguard, the District

argues that Jean-Baptiste should not be promoted to any higher position.

The District also opposes any award of front pay, suggesting that this is only appropriate

where reinstatement is not feasible. Id. at 5. The District cites McKennon v. Nashville Banner

Publishing Company, 513 U.S. 352 (1995), for the proposition that neither reinstatement nor

front pay are appropriate where the employer has alternative, lawful grounds for terminating the

employee. Id. at 5–6. Again, because the plaintiff is allegedly unqualified to work as a

lifeguard, the District seeks to avoid a front pay award.

1. Legal Standard

In employment discrimination cases, “[r]einstatement is the presumptive remedy to make

a successful plaintiff whole, though courts have recognized that there are exceptional

circumstances sufficient to rebut the presumption.” Glymph v. Dist. of Columbia, 374 F. Supp.

2d 219, 226 (D.D.C. 2005) (citing Robert Belton, Remedies in Employment Discrimination Law,

§ 7.16 at 236 (1992)); see also Squires v. Bonser, 54 F.3d 168, 173 (3d Cir.1995)

(“[R]einstatement is the preferred remedy in the absence of special circumstances militating

against it.”). “Title VII envisioned that making a victim whole would include his reinstatement

to the position he would have held but for the discrimination. Section 706(g), 42 U.S.C. §

2000e-5(g), the remedial provision of Title VII, specifically includes reinstatement as an

appropriate judicial remedy.” Lander v. Lujan, 888 F.2d 153, 156 (D.C. Cir. 1989). However,

even where reinstatement to plaintiff’s original role is not feasible for some reason, the employer

may have a responsibility to find comparable work for the plaintiff. Glymph, 374 F. Supp. 2d at

226.

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Alternatively, courts have ordered front pay as a substitute for reinstatement where

reinstatement is not a viable option. Pollard v. E.I. duPont de Nemours & Co., 532 U.S. 843

(2001); see also Barbour, 48 F.3d at 1279 (“The presumption that back pay will extend through

the date of judgment derives from the related presumption that the employer will then rectify the

discrimination by hiring or reinstating the employee. When that preferred remedy is unavailable,

front pay is appropriate.” (internal citations omitted)).

2. Analysis

The Court will order that, within thirty days of today’s date, Jean-Baptiste be reinstated

into a year-round lifeguard position, contingent upon her demonstrating that she satisfies the

qualifications and requirements for such a position. This may include a requirement, if imposed

on other employees, that Jean-Baptiste pass tests related to her skills in CPR, AED, and first aid.

The District may not impose unreasonable requirements on Jean-Baptiste or mandate that she

meet a higher standard than that required for similarly situated employees or applicants.

If Jean-Baptiste cannot show that she is qualified for the position of lifeguard, the District

must offer her, within forty five days of today’s date, a position “comparable to the position she

held and for which she is qualified.” Glymph, 374 F. Supp. 2d at 227. Such a position must

offer pay and benefits at least as generous as those provided to year-round lifeguards.

The Court will retain jurisdiction to resolve any disputes between the parties as to the

comparability of the offered position, plaintiff’s qualifications for the position, plaintiff’s

decision not to accept the offered position, etc. See id. at 228.

The Court will not order that Jean-Baptiste be reinstated to a higher level position than

the one she occupied prior to her termination. The Court finds unduly speculative Jean-

Baptiste’s arguments that she would have been promoted to a facility management position in the

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time between her termination and the present. Plaintiff offers Sean Link as a comparator, but the

District avers that Link “started working seasonally as a lifeguard and progressed over the years

from an instructor, and then became a pool manager, site director, and ultimately served as a

supervisor at the end of his eighteen year period with DPR.” Def.’s Opp’n 5.2 Plaintiff counters

this argument by asserting that Link “advanced from the position of Recreation Specialist to the

Aquatic Director of DPR in just four years.” However, without more information about the

duties of a recreation specialist and the typical advancement of DPR employees, the Court

cannot base a decision to promote Jean-Baptiste on such vague assertions.

Because the Court orders prompt reinstatement to a lifeguard or comparable position, the

Court will not order front pay.

B. Back Pay

Jean-Baptiste seeks back pay from the date of her termination to the date of final

judgment, plus pre-judgment interest. In calculating the back pay due, Jean-Baptiste uses her

salary at the time of her discharge in 2006 ($13.50/hour) multiplied by forty hours per week.

Pl.’s Mem. 7. She adds interest compounded daily at the “short-term federal rate” and makes

deductions for interim earnings. Id. Without citation, Jean-Baptiste argues that, in pay periods

where her earnings exceeded her back pay, the Court should set the back pay amount at zero

rather than allowing the excess earnings to count against her back pay award in other pay

periods. Id. at 8. Based on these calculations, Jean-Baptiste seeks $119,157.50 in back pay as of

2

Mr. Link testified that he had begun working as a lifeguard in Maryland beginning in or around 1991. Trial Tr.

58–60, Aug. 8, 2012. He began working as a lifeguard for DPR in or around 1994. Id. He stated that, after joining

DPR, he worked as a lifeguard and instructor, and progressed to become site director and supervisor. Id. At some

point over the twelve year period between 1994 and 2006, he became an “acting pool manager” or “rec specialist.”

Id. at 89. In April 2010, he became the Aquatics Director. Thus, it appears that as many as fifteen years elapsed

between the time he began lifeguarding and when he became an acting pool manager.

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September 4, 2012 and asks that the amount be increased to reflect interest and back pay up to

today’s date.

The District opposes any award of back pay, arguing that Jean-Baptiste was “no longer

qualified for the lifeguard position” when she was discharged and that “the jury’s award was

therefore sufficient ‘make whole’ relief.” Def.’s Opp’n 2. The District argues that the jury

determined only that retaliation was a “motivating factor” in Jean-Baptiste’s discharge, thus

leaving open the possibility that plaintiff would no longer have been employed as a lifeguard

even absent retaliatory action. Id. at 2–3.

Alternatively, should the Court award back pay, the District disputes the method Jean-

Baptiste used to calculate the amount. Id. at 3. The District argues that back pay should not be

calculated to the date of final judgment, though it does not explain the basis for this argument.

The District also asserts that interest on back pay should be compounded annually rather than

daily, arguing that the Eleventh Circuit approach relied on by Jean-Baptiste is not universally

accepted. Id.

1. Legal Standard

a. Availability of back pay generally

Both Title VII and the DCHRA allow for reinstatement with or without back pay. The

WPA also provides for back pay and explicitly states that interest on back pay shall be available.

Although back pay “is not an automatic or mandatory remedy; . . . it is one which the

courts may invoke in the exercise of their sound ‘discretion [which] is equitable in nature.” Ford

Motor Co. v. EEOC, 458 U.S. 219, 226 (1982) (internal quotation marks and citation omitted).

Courts must exercise the power to grant back pay “‘in light of the large objectives of” Title VII.

Id. (internal citation omitted). These objectives include ending employment discrimination and

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encouraging Title VII defendants to “promptly . . . make curative, unconditional job offers to

Title VII claimants, thereby bringing defendants into ‘voluntary compliance’ and ending

discrimination far more quickly than could litigation proceeding at its often ponderous pace.” Id.

Moreover, Title VII attempts to “make the victims of unlawful discrimination whole by restoring

them, so far as possible to a position where they would have been were it not for the unlawful

discrimination.” Id. at 230 (internal quotation marks omitted).3

Although back pay is thus often available, “[i]nterim earnings or amounts earnable with

reasonable diligence by the [plaintiff] shall operate to reduce the back pay otherwise allowable.”

42 U.S.C. § 2000e-5(g)(1). Thus, Title VII subjects claimants to a “statutory duty to minimize

damages,” Ford Motor, 458 U.S. at 231, and claimants must “use reasonable diligence in finding

other suitable employment,” id. at 231. Where a plaintiff could have found work but failed to do

so, some courts have denied all back pay. See, e.g., Hopkins v. Price Waterhouse, 920 F.2d 967,

981–82 (D.C. Cir. 1990). Nevertheless, the employer has the burden of proving inadequate

mitigation. Hopkins v. Price Waterhouse, 737 F. Supp. 1202, 1212 (D.D.C. 1990) aff’d, 920

F.2d 967 (D.C. Cir. 1990); see also Neal v. Dir., Dist. of Columbia Dep’t of Corr., Civ. No. 93-

2420, 1995 WL 517249 (D.D.C. Aug. 9, 1995) (“Defendants have the burden of going forward

with evidence to establish the amount of earnings to be deducted, and to establish that plaintiffs

failed to exercise reasonable diligence, if applicable.”).

As explained in more detail below, the amount of the “set off” for interim earnings may

sometimes be difficult to calculate.

b. Appropriate time period for back pay

3

Courts sometimes deny back pay on the basis of equitable considerations, however, this appears to be in limited

circumstances. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975) (“[B]ackpay should be denied only

for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating

discrimination throughout the economy and making persons whole for injuries suffered through past

discrimination.”).

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The Court will award back pay to Jean-Baptiste from the date of her termination until the

date of today’s judgment. See Fogg v. Gonzales, 492 F.3d 447, 454 (D.C. Cir. 2007) (affirming

a district court’s grant of back pay to the date of judgment and citing cases approving similar

awards); see also Barbour, 48 F.3d 1270, 1279 (D.C. Cir. 1995) (“The presumption that back

pay will extend through the date of judgment derives from the related presumption that the

employer will then rectify the discrimination by hiring or reinstating the employee.”).4

Although back pay will often extend to the date of judgment, it may be cut short if a

plaintiff fails to properly mitigate damages. Because Title VII plaintiffs must use “reasonable

diligence to maintain any suitable employment which is secured,” Brady v. Thurston Motor

Lines, Inc., 753 F.2d 1269 (4th Cir. 1985), a plaintiff who obtains employment prior to judgment

but who is terminated after failure to make “reasonable and good faith efforts to maintain that

job” may not receive back pay after discharge from the employment obtained. Id. at 1277; but

see Johnson v. Spencer Press of Maine, Inc., 364 F.3d 368, 382 (1st Cir. 2004) (“[B]ack pay is

not permanently terminated when an employee is fired for misconduct or voluntarily quits

interim employment.”). Again, however, failure to adequately mitigate is an affirmative defense

which must be raised by the employer. Cf. Barbour, 48 F.3d at 1279–80 (“The defendant

remains free to challenge the award’s amount, length, or interest rate, or to establish as an

affirmative defense that the plaintiff failed to mitigate damages.”).

From 2009 to June 2010, Jean-Baptiste had employment that paid substantially better

than the job from which she was terminated with DPR. The Court has no information regarding

why this employment ended in June 2010. The District has not suggested that it was through any

4

In the National Labor Relations Act (NLRA) context, “backpay” was often awarded until the date of reinstatement,

even if that occurred after judgment. Pollard, 532 U.S. at 849. The Title VII provision authorizing back pay closely

tracked a similar provision in the NLRA. However, in the Title VII context, “‘backpay’ occurring after the date of

judgment is known today as ‘front pay.’” Id.

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fault of Jean-Baptiste’s, and thus, the Court cannot find that back pay should end prior to

judgment.

Given that back pay will extend from the date of Jean-Baptiste’s termination to today’s

date, the maximum possible back pay award is $189,540. This represents the plaintiff’s prior

compensation rate of $13.50 per hour, assuming forty hours per week of work, from the pay

period ending November 3, 2006, until today. Because the Court will reduce this figure to

account for interim earnings and will allow prejudgment interest, this is not the final back pay

award for Jean-Baptiste.

c. Interim earnings set off calculation

Where there is a short time period between the termination of a plaintiff and final

judgment, or where interim earnings never exceed projected back pay, calculation of back pay is

relatively straightforward. For example, some judges in our Circuit appear to have simply

calculated the total estimated back pay award and deducted total interim earnings from that

amount. See, e.g., Chadwick v. Dist. of Columbia, 56 F. Supp. 2d 69, 73 (D.D.C. 1999) (“The

period between plaintiff’s constructive discharge and the verdict was two years and 92 days. . . .

[P]laintiff would have earned $66,980.61 over that period. After subtracting the $3000 plaintiff

earned in the interim as mitigated damages, the Court concludes that plaintiff should be awarded

$63,980.61 in back pay, plus prejudgment interest.”). Other judges appear to have assessed back

pay awards on an annual basis and have subtracted annual interim earnings from annual total

back pay to arrive at a final award. See Hopkins, 737 F. Supp. at 1215 (“[Plaintiff’s] back pay

award for each fiscal year shall be determined by subtracting from the average Price Waterhouse

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partnership salary for her class as stipulated, $100,000, or her actual earnings, whichever is

greater.”).5

Calculation of back pay is more complicated when a plaintiff has interim earnings which

sometimes exceed estimated back pay. The Sixth Circuit has denied all back pay compensation

when a plaintiff’s interim earnings exceeded her estimated back pay. EEOC v. New York Times

Broad. Serv., Inc., 542 F.2d 356, 359 (6th Cir. 1976) (noting that plaintiff “clearly was not

damaged monetarily” where she later earned more than she would have in the position she

sought). The Eighth Circuit utilized an annual back pay calculation, such that if, in any given

year, the plaintiff’s earnings exceed her back pay award, the excess would not reduce the back

pay owed in any other year. Leftwich v. Harris-Stowe State Coll., 702 F.2d 686, 693 (8th Cir.

1983) (“Under a year-by-year approach, when, as here, a plaintiff’s interim earnings in any year

exceed the wages he or she lost due to the discrimination, that ‘excess’ must not be deducted

from any back pay for other years to which the plaintiff is entitled.”); see also id. (noting that

Fifth and Tenth Circuits had affirmed district court cases using a similar approach). On the other

hand, the Eleventh Circuit has taken a slightly different approach, following the practice in

NLRA cases to calculate back pay on a quarterly basis.6 See Darnell v. City of Jasper, Ala., 730

5

The court in Hopkins also held that back pay may be reduced by the amount the claimaint “could have” earned

“with reasonable effort.” 737 F. Supp. at 1215. Because this is part of the affirmative defense of failure to mitigate,

and because the District has presented no argument or evidence on this point, the Court will not consider whether

any theoretical earnings should reduce her back pay award.

6

The D.C. Circuit has described the evolution of back pay calculations in the NLRA context:

Before 1950, the Board calculated backpay by subtracting what an employee actually earned

during the entire backpay period from what she would have earned during that period had the

unlawful action not occurred. The Board came to realize, however, that computing backpay in

that manner encouraged employers to delay reinstating wrongfully terminated employees: if the

employer waited long enough, the employee could start earning more at her new job than she

would have earned at her old job, decreasing the employer’s total backpay liability. To eliminate

this perverse incentive, the Board announced a new approach in F.W. Woolworth, 90 N.L.R.B.

289 (1950), under which it subtracted what an employee actually made from what she would have

made on a quarterly basis, with the condition that “[e]arnings in one particular quarter ... ha[d] no

effect upon the back-pay liability for any other quarter.” Thanks to the Woolworth approach, an

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F.2d 653 (11th Cir. 1984). Under this approach, earnings exceeding back pay in any quarter will

not reduce the pay owed in any other quarter.7

The Court will use the annual method of calculating back pay endorsed by the Eighth

Circuit and, apparently, at least one other court in our Circuit. 8 Thus, where Jean-Baptiste

earned more in a given year than her estimated back pay, the excess will not reduce her award in

any other year.

Year Estimated Back Pay Interim Earnings Estimated Back Pay

Less Interim

Earnings9

2006 $5,400 $600 $4,800

2007 $28,080 $9,826 $18,254

2008 $27,000 $11,964 $15,036

2009 $28,080 $43,000 0

2010 $29,160 $22,360 $6,800

2011 $28,080 $0 $28,080

2012 $28,080 $0 $28,080

2013 $15,660 $0 $15,660

TOTAL $189,000 $87,750 $116,170

d. Prejudgment interest

employer no longer benefitted if a wrongfully terminated employee eventually started making

more money at her new job than she would have made at her old job—those additional earnings

did not offset what the employer owed in backpay for any previous quarters.

Deming Hosp. Corp. v. NLRB, 665 F.3d 196, 199–200 (D.C. Cir. 2011) (internal citations omitted). The D.C.

Circuit does not appear to have applied such an approach in the Title VII context.

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The Court is unaware of any court applying the method suggested by Jean-Baptiste, namely calculating back pay

on a pay period basis, such that excess interim awards in any pay period do not affect the award of any other pay

period. Again, Jean-Baptiste has provided no citation to support the use of this method.

8

Some courts have declined to follow this approach on the theory that it departs from the “make whole” principle of

Title VII and thus may result in a windfall to plaintiffs. See, e.g., Sinclair v. Ins. Co. of N. Am., 609 F. Supp. 397,

402 n.3 (E.D. Pa. 1984) aff’d sub nom. Appeal of INA Corp., 782 F.2d 1029 (3d Cir. 1986) and aff’d sub nom.

Appeal of Sinclair, 782 F.2d 1031 (3d Cir. 1986) and aff’d sub nom. Sinclair v. Cigna Corp., 782 F.2d 1031 (3d Cir.

1986) (“The Leftwich rule may assure that employers do not benefit from employee’s ‘excess’ earnings. However,

in my opinion, it has an overriding disadvantage of discouraging mitigation.”). While equitable concerns may

sometimes counsel against the use of such an approach, the Court does not believe they do so here. Here, defendant

has not even raised the possibility that Jean-Baptiste failed to mitigate her damages. If the defendant were to raise

these concerns, the Court could deny or reduce back pay on the grounds that Jean-Baptiste had failed to sufficiently

mitigate her damages.

9

This number is set to zero if interim earnings exceeded estimated back pay in any given year.

13

Title VII authorizes prejudgment interest as part of the back pay remedy in suits against

private employers. Loeffler v. Frank, 486 U.S. 549, 557 (1988). Indeed, prejudgment interest is

presumptively available. Cf. Barbour, 48 F.3d 1270, 1278 (D.C. Cir. 1995) (noting, in the

context of a claim under 42 U.S.C. § 1981 that “in view of [plaintiff’s] entitlement to make-

whole relief and the general remedial principle that ‘[p]rejudgment interest is an element of

complete compensation,’ we agree . . . that prejudgment interest ‘must be an ordinary part of any

award of back pay.’” (internal citations omitted)). How to compute prejudgment interest is

within the discretion of the district court. Berger v. Iron Workers Reinforced Rodmen, Local

201, 170 F.3d 1111, 1139 (D.C. Cir. 1999); Forman v. Korean Air Lines Co., Ltd., 84 F.3d 446,

450 (D.C. Cir. 1996) (noting that the use of the prime rate is “well within the district court’s

discretion”).10

The D.C. Circuit has held that prejudgment interest is available against state governments

in addition to private employers. Jones v. Washington Metro. Area Transit Auth., 205 F.3d 428,

434 (D.C. Cir. 2000) (affirming award of prejudgment interest and noting that the circuit saw “no

bar to awarding pre-judgment interest on back pay assessed against a state under Title VII, as to

which the Congress expressly and effectively abrogated Eleventh Amendment immunity, and

which has long been recognized, in the absence of immunity, to authorize prejudgment interest

10

In a citation, Judge Facciola summarized the approach taken by the judges of this Court in determining the

appropriate prejudgment interest:

See Chadwick v. District of Columbia, 56 F. Supp. 2d 69, 73 n. 2 (D.D.C.1999) (“Unless the

parties agree otherwise, prejudgment interest should be awarded at the prime rate for each year

between plaintiff’s constructive discharge and the entry of judgment”); Jefferson v. Milvets System

Technology, 986 F. Supp. 6, 9 (D.D.C.1997) (“Neither the plaintiff nor the defendant has

suggested a methodology whereby the Court is to calculate pre-judgment interest. Therefore the

Court holds that pre-judgment interest shall be calculated in accordance with 28 U.S.C. § 1961,

which governs post-judgment interest”); Hartman v. Duffey, 8 F.Supp.2d 1, 3 (D.D.C.1998) (

“there is no unjust enrichment to the government in selecting the one-year Treasury Bill Rate as

the rate of pre-judgment interest ... That rate was the pre-Forman recommendation of the experts

and has been, over time, about one-half percent greater then the three month T Bill rate urged by

the government.”).

Griffin v. Washington Convention Ctr., 2000 WL 1174967 (D.D.C. July 21, 2000).

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as part of its back pay remedy” (internal citations omitted)). Moreover, the District of Columbia

has explicitly authorized interest on back pay awards under the WPA. D.C. Code § 1-

615.54(a)(1)(E).

There is some authority to suggest that interest on Title VII back pay awards against the

District of Columbia is capped at four percent per year. See King v. Palmer, 641 F. Supp. 186,

188 (D.D.C. 1986) (stating that interest on back pay is authorized by Title VII but that “the rate

of interest on a Title VII judgment against the District of Columbia or its officials is fixed at 4

percent by D.C. Code § 28–3302”). Assuming that this rule applies to interest on back pay and

that it is not limited to postjudgment interest, this cap would appear to apply to back pay awarded

under the DCHRA and WPA as well. In this case, the jury verdict did not distinguish between

liability based on violations of Title VII and that based on violations of the DCHRA and WPA.

Thus, the Court will assume that D.C. Code § 28-3302 limits the interest that may be imposed on

the back pay awarded under any of the three statutes and the Court will use four percent as the

applicable interest rate.

The interest rates relied upon by plaintiff ranged from three to nine percent. Thus, four

percent interest for the entire time period is not a significant departure from that claimed by

plaintiffs.11 Moreover, the District appears to have conceded that interest rates as high as six

percent might be a reasonable interest rate. Def.’s Opp’n 3 (citing with approval Berger v. Iron

Workers Reinforced Rodmen, Local 201, 170 F.3d 1111, 1139 (D.C. Cir. 1999), in which the

Circuit affirmed the use of six percent interest compounded annually). Finally, a four percent

11

If the Court were to use the interest rates supplied by plaintiff, compounded annually, the total interest awarded

would be $16511.15, nearly the same as the amount arrived at using a four percent rate across all years.

15

annual rate over the relevant time period is consistent with the prime rate, which has been

endorsed by other courts in our Circuit.12

In short, the Court will use an interest rate of four percent compounded annually and will

award Jean-Baptiste $133,283 in backpay and prejudgment interest thereon.

Year Estimated Back Estimated Back Annual Interest Total Amount

Pay Minus Pay Minus Due

Interim Interim

Earnings13 Earnings Plus

Prior Year’s

Total

2006 $4,800 N/A $60.49 $4,860.49

2007 $18,254 $23,114.49 $924.58 $24,039.07

2008 $15,036 $39,075.08 $1,563 $40,638.08

2009 0 $40,638.08 $1,625.52 $42,263.60

2010 $6,800 $49,063.60 $1,962.54 $51,026.14

2011 $28,080 $79,106.14 $3,164.25 $82,270.39

2012 $28,080 $110,350.39 $4,414.01 $114,764.40

2013 $15,660 $130,424.40 $2,858.62 $133,283

TOTAL $116,710 N/A $16,573.02 $133,283

C. Permanent Injunction

Jean-Baptiste requests a permanent injunction enjoining the District from further

discrimination and retaliation against her. Pl.’s Mem. 10. Jean-Baptiste argues that such a

remedy is “typical” in this jurisdiction. Id. (citing Bass v. Tanoue, 2001 WL 1659158, at *7

(D.D.C. Dec. 21, 2001); Jones, 205 F.3d at 435 (D.C. Cir. 2000)).

The District acknowledges that “injunctions are a typical remedy under Title VII when

additional discrimination is anticipated,” Def.’s Opp’n 6 (citing Mitchell v. Sec’y of Commerce,

715 F. Supp. 409, 410 (D.D.C. 1989)). However, the District argues that a permanent injunction

is unnecessary here because there is “no reasonable expectation that future discriminatory acts

12

The prime rates were 7.96% in 2006, 8.05% in 2007, 5.09% in 2008, and 3.25% in 2009 through 2012.

Calculating interest at these rates, and assuming a 3.25% rate for 2013 (which is consistent with current monthly

prime rates) would result in an award of $15,539.74 in interest, or a difference of just over $1033.

13

This number is set to zero if interim earnings exceeded estimated back pay in any given year.

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are likely to occur.” Id. (citing Bundy v. Jackson, 641 F.2d 934, 953 n.13 (D.C. Cir. 1981)). The

District also states that DPR no longer employs Jean-Baptiste’s “alleged” harasser, Rodney

Weaver, or any of the management staff who were at DPR during the relevant time period.14

1. Legal Standard

Title VII provides that if the “court finds that the respondent has intentionally engaged in

. . . an unlawful employment practice charged in the complaint, the court may enjoin the

respondent from engaging in such unlawful employment practice . . . .” 42 U.S.C.A. § 2000e-

5.15

A request for an injunction “will be moot only where there is no reasonable expectation

that the conduct will recur, or where interim events have ‘completely and irrevocably eradicated

the effects of the alleged violation.’” Bundy, 641 F.2d at 946 n.13 (citing United States v. W. T.

Grant Co., 345 U.S. 629 (1953), Cnty. of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). In

Bundy, the D.C. Circuit held that there was no certainty that the unlawful conduct would recur

14

The Court notes that, at least in the eyes of our jury system, Mr. Weaver is no longer the “alleged” harasser. The

jury found that it was “more likely than not that Rodney Weaver subjected the plaintiff to unwelcome verbal or

physical conduct” and that this “conduct was sufficiently severe or pervasive such that it created a hostile work

environment . . . .” Verdict Form 1, ECF No. 185.

15

In the context of permanent injunctions generally, a four-factor test normally governs whether a permanent

injunction may issue. See eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). The test requires that

plaintiff show the following:

(1) that [she] has suffered an irreparable injury; (2) that remedies available at law, such as

monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance

of hardships between the plaintiff and the defendant, a remedy in equity is warranted; and (4) that

the public interest would not be disserved by a permanent injunction.

Id.

However, courts in our circuit do not appear to have explicitly applied this four-factor test in the Title VII

context. There is some authority that it should be applied. For example, eBay held that the test “appl[ies] with equal

force to disputes” under the Patent Act, which “expressly provides that injunctions ‘may’ issue ‘in accordance with

the principles of equity’”). Id. at 391–92. Additionally, the District of Maine applied the four-factor test in the

context of Title VII in EEOC v. DCP Medstream, L.P., 608 F. Supp. 2d 107, 109 (D. Me. 2009). However, in DCP

Medstream, the court held that the first three prongs of the four-factor test were met because the jury found an

unlawful employment practice and because Title VII explicitly endorses equitable relief. The fourth prong was

“likewise met because . . . ‘the public has an interest in the enforcement of federal statutes.’” Id. (internal citations

omitted)). Thus, under DCP Medstream’s analysis, the four-factor test would appear to be satisfied in any Title VII

case in which a verdict is rendered for the plaintiff. Given the general practice in our Circuit of granting Title VII

injunctions without an explicit invocation of this test, the Court finds it unnecessary to engage in the four-factor

analysis. Nevertheless, the Court will address the factors briefly below.

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because the employer had “taken no affirmative steps to prevent recurrence of the harassment,

and because all the harassing employees still work for the agency.” Id. The Court noted that an

Order issued by the Mayor did “not provide any certainty that the offending conduct [would] not

recur,” id., despite the fact that Order made clear that sexual harassment constituted sex

discrimination and required the D.C. Office of Human Rights to “receive and adjudicate any

complaints of sexual harassment . . . and require[d] all agency heads to establish and implement

intra-agency means of investigating and adjudicating complaints of harassment.” Id. at 947 &

n.14.

Thus, an injunction may be issued even if an employer alters its conduct after

discrimination charge. See, e.g., EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539, 1544 (9th

Cir. 1987) (“Generally, a person subjected to employment discrimination is entitled to an

injunction against future discrimination unless the employer proves it is unlikely to repeat the

practice. . . . An employer that takes curative actions only after it has been sued fails to provide

sufficient assurances that it will not repeat the violation to justify denying an injunction.”);

Spencer v. Gen. Elec. Co., 894 F.2d 651, 660 (4th Cir. 1990) abrogated on other grounds by

Farrar v. Hobby, 506 U.S. 103 (1992) (“While it is true that this policy was instituted at least

partially in response to this litigation, the trial court found that the policy reflects a bona fide

committed effort by G.E. to combat sexual harassment in the workplace.”).

If granted, injunctions should be narrowly tailored and should generally apply only to the

plaintiff where a class has not been certified. See Jones v. Wash. Metro. Area Transit Auth., 946

F. Supp. 1023, 1034 (D.D.C. 1996) aff’d in part, vacated in part on other grounds, 205 F.3d 428

(D.C. Cir. 2000) (noting that, where jury was not asked to find retaliation against other

employees, nor did plaintiff rely on statistical evidence of disparate impact, injunctive relief had

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to be limited to prohibiting the employer from retaliating against plaintiff); Brown v. Trustees of

Boston Univ., 891 F.2d 337, 361 (1st Cir. 1989) (“An injunction should be narrowly tailored to

give only the relief to which plaintiffs are entitled . . . .”); id. (warning against an injunction that

is effectively class-wide where no class has been certified).

2. Analysis

The Court will grant Jean-Baptiste’s request for a permanent injunction enjoining the

District from further discrimination and retaliation.

The evidence presented at trial suggested pervasive harassment and discrimination within

DPR and inadequate policies and procedures to respond to such conduct. Specifically, the jury

heard testimony of a “culture of sexual harassment and sexual discrimination” at the pool where

Jean-Baptiste worked, of a “boys-gone-wild culture” in the aquatics department, and, with

respect to many of the male supervisors above Jean-Baptiste, “a boys club from the top down.”

Test. of Stacy Mills, Trial Tr. 42–48, Aug. 7, 2012. Jean-Baptiste testified that she complained

about the Weaver’s harassment of her to at least six supervisors and that none responded

adequately. Two other individuals complained, again in vain, on Jean-Baptiste’s behalf.

Additionally, the harassment of Jean-Baptiste does not appear to have been an isolated

incident by one supervisor against one victim. Cf. Spencer, 894 F.2d at 660 (affirming district

court’s denial of permanent injunction where the case presented “an isolated incident of one

supervisor run amok”). Jean-Baptiste’s harasser had been accused of sexual harassment one year

before Jean-Baptiste was hired and supervisor Margarita Cruz testified that, in response, she

exaggerated complaints about that victim’s work performance to protect the harasser. Trial Tr.

58–73, Aug. 7, 2012; Trial Tr. 31–35, 53, Aug. 8, 2012. Cruz also testified that she herself had

been sexually harassed by another of Jean-Baptiste’s supervisors. Moreover, the jury held that

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Jean-Baptiste’s complaints about her harassment played “substantial or motivating factor” in the

District’s decision to terminate her or to not offer her permanent employment.

The District states that neither the “alleged” harasser, Rodney Weaver, nor any of the

management employees employed during the relevant time period is still with DPR. The District

also states that “the instant litigation involved a review of all of the employees and managers

working at the Takoma Pool during the relevant time period by both the Attorney General’s

office and the DPR General Counsel.” However, the latter statement is so vague as to be almost

meaningless. All litigation, given the discovery process, necessarily involves a “review” of the

individuals involved. Moreover, nowhere does the District state that it took proactive steps to

discipline or dismiss the employees involved in this matter. It may be the case that these

employees, over the course of the last six to seven years, have simply obtained other

employment of their own accord. Moreover, the District admits that it did not revise its EEO

policy until after the jury’s verdict in this case. See Def.’s Opp’n at 7 (citing a policy revision

dated September 26, 2012). Such a last minute effort is hardly evidence that the District’s

conduct is unlikely to recur. Cf. Spencer, 894 F.2d at 660 (affirming district court’s denial of

permanent injunction where, in response to isolate incident, the employer had “gotten rid of the

offending supervisor, transferred plaintiff to a job of equal grade, and instituted an extensive

company-wide anti-sexual harassment policy”).

In short, the Court has significant concerns that the District could once again fail to

respond to harassment of or discrimination against Jean-Baptiste, or that it could allow improper

retaliatory motives to play a role in personnel decisions related to Jean-Baptiste. Monetary

damages do not entirely compensate for plaintiff’s injuries given that plaintiff remains

unemployed and that, upon her reinstatement, she is at risk of being subjected to additional

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harassment and retaliation. Moreover, the balance of hardships certainly favors the relief

requested. A permanent injunction barring discrimination against plaintiff imposes little burden

on the District. In fact, such an injunction does not prevent the District from acting lawfully as

an employer. Thus, if Jean-Baptiste fails to fulfill her duties as an employee or if she engages in

misconduct, the district may respond. Cf. Lander, 888 F.2d at 158 (“To be sure, Lander’s right

to reinstatement to the top administrative job in the Bureau does not mean he has life tenure in

the job. He has only the right not to be transferred or disadvantaged for discriminatory reasons. .

. . [H]e could be transferred sometime in the future for a nondiscriminatory reason . . . .”) On

the other hand, the injunction provides significant benefit to Jean-Baptiste and protects her from

any future unlawful actions by the District. Finally, the public interests in remedying and

preventing discrimination and retaliation clearly weigh in favor of granting the injunction.

The Court will grant a narrowly tailored injunction enjoining the District from

discriminating against Jean-Baptiste on the basis of her sex and from retaliating against Jean-

Baptiste on the basis of her engagement in protected activities.

D. Jury Recommendations

In rendering its verdict, the jury made policy recommendations to the District.

Specifically, it recommended that the District begin EEO training for all DPR managers, rewrite

personnel policies to remove ambiguities, and review the actions, or lack thereof, taken by DPR

employees and managers at the Takoma Pool and Aquatic Program during and immediately

following Jean-Baptiste’s employment. Verdict Form at 4, ECF No. 185.

Jean-Baptiste asks the Court to order the District to take the steps suggested by the jury.

Pl.’s Mem. 11–12. She asks that the District be required to update the Court and her counsel

every six months for the next three years regarding the status of the actions taken and that DPR

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“hire or appoint someone with an expertise in effective EEO policies and procedures to oversee

this overhaul of its EEO policies and procedures.” Id.

The District responds that such an order is unnecessary because the jury’s

recommendations have already been implemented. Specifically, it states that: “DPR revised its

sexual harassment and EEO policy following the jury’s verdict . . . ,” Def.’s Opp’n 7 (citing Ex.

3, EEO policy dated Sept. 26, 2012); that “all DPR employees, including managerial employees,

undergo sexual harassment training on an annual basis,” id.; and that “the instant litigation

involved a review of all of the employees and managers working at the Takoma Pool during the

relevant time period by both the Attorney General’s office and the DPR General Counsel. None

of the managers at the Takoma Pool during the relevant time period are any longer with the DPR

or the District.” Id.

1. Legal Standard

Title VII provides that if the court “finds that the respondent has intentionally engaged in

. . . an unlawful employment practice charged in the complaint, the court may . . . order such

affirmative action as may be appropriate. 42 U.S.C.A. § 2000e-5(g)(1). However, as with other

injunctive relief, orders requiring affirmative action should be narrowly tailored. See supra.

Moreover, such orders should generally apply only to the plaintiff where a class has not been

certified. See supra.

2. Analysis

The Court agrees with the jury that this case revealed serious structural and policy

concerns regarding how the District responds to complaints of harassment. Nevertheless, the

jury’s recommendations were exactly that: recommendations.

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This case was not a class action. Although the Court heard testimony regarding that

“culture” of harassment at DPR, the jury did not have to determine whether a class-wide problem

existed.

The Court does not find it necessary or appropriate to issue what would essentially be an

order for affirmative action intended to benefit a class of employees. The Court will decline to

order such action.

IV. CONCLUSION

The Court grants in part and denies in part Jean-Baptiste’s motion for equitable relief.

The Court will grant Jean-Baptiste’s request for reinstatement and order that, within thirty days

of today’s date, Jean-Baptiste be reinstated into a year-round lifeguard position, contingent upon

her demonstrating that she satisfies the qualifications and requirements for such a position. If

Jean-Baptiste cannot show that she is qualified for the position, the District must offer her,

within forty five days of today’s date, a position comparable in pay and benefits. The Court will

retain jurisdiction to resolve any disputes between the parties regarding this aspect of the order.

Along with reinstatement, the Court will award back pay plus prejudgment interest in the total

amount of $133,283.02.

The Court will also enjoin the District from discriminating against Jean-Baptiste on the

basis of her sex and from retaliating against Jean-Baptiste on the basis of her engagement in

protected activities. Although the Court shares the concerns raised by the jury, the Court will not

order the District to take the affirmative steps recommended by the jury.

A separate Order consistent with this Memorandum Opinion and a final judgment in this

case shall issue this date.

Signed by Royce C. Lamberth, United States District Court Judge, on July 19, 2013.

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