EEOC & Maines v. Federal Express Corp. (11th Cir.) Reply brief as cross-appellant Jan. 18, 2006 Nos. 05-13448 & 05-14108 ________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT __________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee-Cross-Appellant, and THEODORE MAINES, Plaintiff-Intervenor-Appellee, v. FEDERAL EXPRESS CORPORATION, Defendant-Appellant-Cross-Appellee. _________________________________________________ On Appeal from the United States District Court for the Middle District of Florida, 6:02-cv-1112 __________________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS PLAINTIFF-APPELLEE-CROSS-APPELLANT ________________________________________________ JAMES L. LEE Deputy General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ANNE NOEL OCCHIALINO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7030 Washington, D.C. 20507 (202) 663-4724 EEOC v. Federal Express, Nos. 05-13448 & 05-14108 CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT Pursuant to 11th Cir. R. 26.1.1-1, I hereby certify that the following person has an interest in the outcome of this case, but did not have such an interest at the time of filing of the EEOC's opening brief, and therefore was not listed as an interested person in the Certificate of Interested Persons and Corporate Disclosure Statement filed with the EEOC's opening brief: James M. Tucker, Attorney, EEOC TABLE OF CONTENTS EEOC's Cross-Appeal No. 05-14108 CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . A TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . ii ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 I. The district court abused its discretion in denying front pay. 2 II. The district court abused its discretion in denying broader injunctive relief. . . . . . . . . . . . . . . . . . . . . . . 8 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . 16 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . 17 TABLE OF AUTHORITIES Cases * Bruso v. United Airlines, Inc., 239 F.3d 848 (11th Cir. 2001) . 11, 13 Cooper v. Southern Co., 390 F.3d 695 (11th Cir. 2004) . . . . . . . . . 10 EEOC v. Delight Wholesale Co., 765 F. Supp. 583 (W.D. Mo. 1991) . . . 5, 9 EEOC v. Joe's Stone Crab, Inc., 220 F.3d 1263(11th Cir. 2000) . . . . . 10 * EEOC v. Massey Yardley Chrysler Plymouth, 117 F.3d 1244 (11th Cir. 1997) . . . . . . . . . . . .9, 11, 13, 14 Nord v. U.S. Steel, 758 F.2d 1462 (11th Cir. 1985) . . . . . . . . . . . 2 Padilla v. Metro-North Commuter R.R., 92 F.3d 117 (2d Cir. 1996) . . . . 7 Reynolds v. Octel Commc'ns Corp., 924 F. Supp. 743 (N.D. Tex. 1995) . . .4 Thurman v. Yellow Freight Sys., Inc., 97 F.3d 834 (6th Cir. 1996). . . . 4 * Weaver v. Casa Gallardo, 922 F.2d 1515 (11th Cir. 1991) . . . . . 2, 3 Wilcox v. Stratton Lumber, Inc., 921 F. Supp. 837 (D. Me. 1996) . . . . 4 Statutes 42 U.S.C. § 1981(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 12 42 U.S.C. § 2000e-5(g) . . . . . . . . . . . . . . . . . . . . . . . . 10 42 U.S.C. § 2000e-3(a) . . . . . . . . . . . . . . . . . . . . . . . . 11 ARGUMENT EEOC's Cross-Appeal, No. 05-14108 In its opening brief, the Commission argued that the district court abused its discretion in denying the EEOC's request for front pay and in denying nearly all of the EEOC's requested injunctive relief. EEOC Br. at 52-65. As to front pay, the EEOC argued that the district court failed to acknowledge that FedEx – not the EEOC – had the burden of showing that Maines failed to mitigate his damages. The EEOC also argued that FedEx failed to meet this burden because it did not introduce evidence, by way of a vocational expert or job postings, establishing that Maines had failed to apply for available comparable jobs for which he was qualified. As to injunctive relief, the EEOC asserted that it was presumptively entitled to such relief because it had shown that FedEx retaliated against Maines and because FedEx had failed to show that future violations were unlikely. In its response brief, FedEx largely ignores the arguments the Commission made in its opening brief, instead repeating arguments it made to the district court. For the reasons set forth in the Commission's opening brief and below, this Court should hold that the district court abused its discretion in denying front pay and broader injunctive relief. I. The district court abused its discretion in denying front pay. FedEx initially asserts a strawman argument: that the Commission contends that front pay is automatic upon a showing of a Title VII violation. The Commission actually asserted that either reinstatement or front pay is presumptive – not automatic – upon the showing of a Title VII violation as part of the statute's "make whole" remedial policy. See EEOC Br. at 52 (citing Weaver v. Casa Gallardo, 922 F.2d 1515, 1528 (11th Cir. 1991); Nord v. U.S. Steel, 758 F.2d 1462, 1473 (11th Cir. 1985)). The Commission then argued that the district court committed legal error in holding that this presumption does not apply here because Maines already received a back pay award and because he should have "worked his way back up" to a comparable position by the time of trial. Next, FedEx asserts that Maines's back pay and compensatory damage award were sufficient to satisfy Title VII's "make whole" policy. FedEx Br. at 2. In support, FedEx cites several cases in which courts denied front pay awards to plaintiffs who had received back pay and other awards that totaled less than Maines's back pay and compensatory damage award. Id. FedEx suggests that these cases support the conclusion that as a matter of law Maines's back pay and compensatory damage award satisfy Title VII's "make whole" policy, rendering a front pay award inappropriate. Id. The reasoning of these cases, however, does not support this conclusion. The only Eleventh Circuit case FedEx cites to support its argument is Weaver v. Casa Gallardo. That case, however, actually supports the Commission's argument that the district court abused its discretion in denying front pay. In Weaver, this Court stated that front pay is "appropriate [ ] when the other damages awarded will not fully compensate the plaintiff for his injury." 922 F.2d at 1529 (emphasis added). Although this Court denied front pay in Weaver, the Commission pointed out in its opening brief that Weaver is distinguishable from this case. EEOC Br. at 58. In Weaver this Court reasoned that a front pay award was unwarranted because the district court had found that the plaintiff failed to mitigate his back pay damages. EEOC Br. at 58 (citing Weaver, 922 F.2d at 1529). Here, in contrast, the district court awarded Maines the full amount of his back pay. Moreover, as discussed in the Commission's opening brief, neither Maines's back pay nor compensatory damage award will fully compensate him for his future lost salary since, despite his best efforts, he has been unable to obtain a comparable position and has no prospects of doing so. See EEOC Br. at 54-59. Accordingly, a front pay award is required to satisfy Title VII's remedial policy. See Weaver, 922 F.2d at 1528 (stating that the court must fashion a remedy that, "as a whole, achieves the remedial purposes of the Act"). The other cases cited by FedEx also fail to support the proposition that Maines's back pay and compensatory damage award satisfy Title VII's "make whole" policy as a matter of law. In Thurman v. Yellow Freight Systems Inc., 97 F.3d 833, 834 (6th Cir. 1996), the Sixth Circuit merely stated in dicta that the district court acted within its discretion in determining that the plaintiff's five-year back pay award and award of attorney fees and costs made him whole; the opinion in no way suggests that a back pay and compensatory damage award equivalent to Maines's award necessarily satisfies Title VII's remedial policy. Similarly, the out-of-circuit district court cases cited by FedEx cannot be read as supporting FedEx's argument that Maines's award automatically satisfies Title VII's "make whole" policy, rendering a front pay award inappropriate. Instead, the courts in those cases either denied front pay based on the individual facts involved – which are distinguishable from this case – or simply concluded without discussion that front pay in the case at bar was inappropriate. See Wilcox v. Stratton Lumber, Inc., 921 F. Supp. 837, 845 (D. Me. 1996) (finding only speculative evidence about plaintiff's employment opportunities and stating that "the circumstances of this case weigh against an award of front pay" where "Plaintiff, at 37, is not too old to seek and begin new employment" and the defendant was a "small employer with limited income" that might not exist in ten years) (emphasis added); Reynolds v. Octel Commc'ns Corp., 924 F. Supp. 743, 748 (N.D. Tex. 1995) (acknowledging that the Fifth Circuit "has found that a substantial award of liquidated damages or punitive damages may signal that an additional award of front pay may be excessive" and concluding without discussion that the plaintiff's compensatory and punitive damage award rendered a front pay award inappropriate) (emphasis added); EEOC v. Delight Wholesale Co., 765 F. Supp. 583, 591 (W.D. Mo. 1991) (denying front pay award after considering the EEOC's delay in pursuing case, plaintiff's "unstable employment history, and the likelihood that she would have remained a long-term employee"). Significantly, FedEx concedes that it – not the EEOC – had the burden of showing that Maines failed to make reasonable efforts to obtain comparable work and therefore did not mitigate his front pay damages. FedEx Br. at 3 ("Although the burden may be on FedEx to prove Maines' failure to mitigate . . . ."). Nevertheless, FedEx faults the EEOC for having failed to produce a vocational expert to testify as to Maines's inability to find a comparable job. FedEx misses the point. Because FedEx – not the EEOC – bore the burden of establishing a failure to mitigate, the EEOC did not have to hire a vocational expert to testify as to Maines's inability to find comparable work. Instead, it was FedEx who should have offered, but did not offer, evidence establishing that Maines failed to apply for available comparable positions for which he was qualified. See EEOC Br. at 52-53. As pointed out in the Commission's opening brief, this evidence could have included the testimony of a vocational expert as to available jobs, actual job postings, or classified newspaper ads. EEOC Br. at 54. FedEx does not deny that it failed to produce this evidence. Instead, FedEx recycles the argument it made below that its submission of yellow page and on-line listings for package delivery businesses and call centers sufficed to show a lack of mitigation. FedEx Br. at 4. As pointed out in the Commission's opening brief, however, this evidence falls far short of establishing a lack of mitigation because it does not show that there were any comparable available positions for which Maines, who lacks even a college degree, was qualified and failed to apply. See EEOC Br. at 54-55. Similarly, FedEx argues that there is "ample evidence in the record" to show that Maines's "arsenal of transferable skills [ ] could have and should have secured" a comparable position. FedEx Br. at 3. Once again, however, FedEx fails to point to record evidence showing the existence of even a single available comparable position for which Maines failed to apply. FedEx also contends that the district court acted within its discretion to consider Maines's rejection of a management job with the Orlando Sentinel, "presumably with benefits." FedEx Br. at 3-4. FedEx fails to cite any record evidence to support the assertion that the Orlando Sentinel position had any benefits. Id. There is none. Doc. 179, pg. 46-47. In fact, Maines testified that the position paid only $50,000 – $10,000 less than Maines's current salary as an independent contractor for a real estate developer and approximately $85,000 less than the total annual compensation Maines earned at FedEx. Id.; Doc. 145, pg. 4. Nor is there any evidence that the district court relied on Maines's rejection of this position when it concluded that Maines failed to mitigate his front pay damages. Doc. 145, pg. 3-6. Next, FedEx mischaracterizes the Commission's reliance on Padilla v. Metro-North Commuter R.R., 92 F.3d 117 (2d Cir. 1996). According to FedEx, the Commission cited it "to suggest that Maines had no marketable job skills." FedEx Br. at 4. The Commission never asserted, however, that Maines had "no" marketable job skills. Instead, the Commission relied on Padilla to argue that the court abused its discretion in finding that Maines's "many marketable skills" meant he should have worked his way back up to a comparable position. EEOC Br. at 57. Specifically, the Commission relied on Padilla to argue that the court's finding was erroneous because Maines's FedEx specific job skills and failure to graduate from college could reasonably be expected to hinder his ability to find a comparable position. EEOC Br. at 56 & 57 (citing Padilla as "concluding that plaintiff's failure to try and find comparable position did not constitute a failure to mitigate where plaintiff ‘had only a high school education and had worked solely for the railroads since the age of 22' and had ‘unique and narrow work qualifications'"). FedEx does not deny that, as the Commission asserted, the record shows that Maines lacks a college education and that FedEx witness Lex Lannom himself testified that Maines dealt with "billing issues very specific to Federal Express." See EEOC Br. at 57 (citing Doc. 179, pg. 40, 73-74). Finally, FedEx asserts that Maines's knowledge of package delivery systems would be an asset for "any enterprise." FedEx Br. at 4. FedEx, however, fails to point to any record evidence of any enterprise with available comparable positions for which Maines is qualified that would be willing to hire him. Id. Again, Lannom – FedEx's own witness – even testified that Maines "can't fill a position if it's not open" and that FedEx – an enterprise engaged in package delivery – does not have any openings for comparable positions. Doc. 179, pg. 73. Lannom's testimony underscores the point that the mere existence of a business does not mean that it has an available comparable position for which Maines is qualified. Nor does FedEx dispute that, as pointed out in the Commission's brief, Maines testified that he sent out at least 40 resumes to businesses, including FedEx's largest competitors. EEOC Br. at 56. Accordingly, this Court should find that the district court abused its discretion in concluding that FedEx met its burden of establishing a lack of mitigation as to Maines's front pay damages. II. The district court abused its discretion in denying broader injunctive relief. FedEx makes two fundamental legal errors which completely undermine its argument that the district court properly denied broader injunctive relief. First, FedEx argues as if it did not violate Title VII. See FedEx Br. at 7 (asserting that "no proof exists that FedEx has engaged in intentional discrimination" and that Mattman "was accused of retaliating"); at 8 (referring to "Mattman's alleged desire to unlawfully retaliate against Maines"); at 9 (asserting that Maines "voluntarily resigned"). This argument is properly the subject of FedEx's appeal of the jury's verdict finding liability. Because this Court will only decide the Commission's cross-appeal if this Court rejects FedEx's argument as to liability, however, FedEx must assume for purposes of the Commission's cross-appeal that it violated the statute. See Delight Wholesale, 765 F. Supp. at 586 (in order discussing damages and reinstatement, stating that the defendant's denial of liability "was addressed during trial" and "is not now before the Court"). Second, FedEx overlooks the argument and cases cited in the Commission's brief – instead relying on circuit and district court cases outside the Eleventh Circuit – to contend that the EEOC had the burden of establishing "the existence of ‘some cognizable danger of recurrent violation'" in order to obtain injunctive relief. FedEx Br. at 5. As the Commission asserted in its opening brief, however, this Court indicated in EEOC v. Massey Yardley Chrysler Plymouth, 117 F.3d 1244 (11th Cir. 1997), that once the EEOC has proven discrimination, the employer bears the burden of showing that future violations are unlikely to recur. See EEOC Br. at 59-60. Here, the jury found that FedEx had retaliated against Maines. Therefore FedEx – not the EEOC – had the burden of showing that future violations were unlikely. Although FedEx's entire argument is infected by this fundamental analytical error and should be rejected for this reason alone, FedEx makes additional errors which reveal its unrelenting misunderstanding of both Title VII and the legal significance of its own conduct in this case. For example, FedEx acknowledges that Section 706(g) of Title VII authorizes injunctive relief "if the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice . . . ." 42 U.S.C. § 2000e-5(g). Yet FedEx remarkably asserts that "injunctive relief is not appropriate because no proof exists that FedEx has engaged in intentional discrimination," FedEx Br. at 7, as it did not engage in a pattern and practice of discrimination. FedEx Br. at 6-7. FedEx's argument that it has not engaged in intentional discrimination when it purposefully retaliated against Maines for engaging in statutorily protected activity and that it can only be deemed to have committed an act of intentional discrimination if it engages in a pattern and practice of systemic discrimination in incredible. This Court clearly recognizes that disparate treatment claims – where an employer intentionally treats an employee differently because of a protected characteristic – involve intentional discrimination. See, e.g., EEOC v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1283-84 (11th Cir. 2000); Cooper v. Southern Co., 390 F.3d 695, 723 (11th Cir. 2004) (stating that disparate treatment claims require proof of discriminatory intent). Clearly, a plaintiff need not establish a pattern and practice of discrimination in order to show intentional discrimination warranting injunctive relief. See Bruso v. United Airlines, Inc., 239 F.3d 848, 864 (11th Cir. 2001) ("[A] successful discrimination plaintiff need not demonstrate that his employer engages in a pattern or practice of discrimination in order to receive injunctive relief."); see also Massey Yardley, 117 F.3d at 1253 (in individual case of age discrimination, recognizing that the EEOC is usually entitled to injunctive relief when it "proves discrimination against one employee and the employer fails to prove that the violation is unlikely to recur" and remanding to district court to grant injunctive relief or to state reasons for denying it) (emphasis added) (internal quotations and citation omitted). Here, the EEOC brought a disparate treatment case alleging that FedEx engaged in intentional discrimination. Doc. 1, Ά 9 (complaint); 42 U.S.C. § 2000e-3(a) (making it unlawful to "discriminate against any . . . employee[]" because "he has opposed any practice made an unlawful employment practice"). The jury agreed, clearly finding a Title VII violation constituting intentional discrimination. FedEx also argues that injunctive relief is inappropriate because the jury refused to award punitive damages. FedEx Br. at 8. This argument is meritless. Punitive damages and injunctive relief serve complementary but different remedial objectives of the statute and, accordingly, involve different standards. As discussed in the Commission's opening brief, a court may award injunctive relief where warranted to deter future discrimination and to provide make-whole relief for victims of discrimination. EEOC Br. at 59. The standard for awarding punitive damages, however, requires a showing that the employer "engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual." 42 U.S.C. § 1981a(a)(1) & (b)(1). Thus, during the punitive damages stage of the trial the jury was asked whether a higher management official acted with malice or reckless indifference to Maines's federally protected rights and whether FedEx had acted in a good faith attempt to comply with the law by adopting policies and procedures designed to prohibit discrimination. Doc. 131 (jury instructions); Doc. 121 (verdict). This inquiry is different from that required to determine whether the EEOC was entitled to broader injunctive relief.<1> FedEx also seems to suggest that under Massey Yardley it can never be subject to injunctive relief because it has anti-discrimination and anti-retaliation policies and training in place and because the company has been recognized for its commitment to diversity. FedEx Br. at 10. This argument is unavailing. In Massey Yardley this Court stated that, among other factors, the lack of an anti- harassment policy suggested that the employer had failed to prove that future violations were unlikely. 117 F.3d at 1254. Nothing in the opinion, however, can be read as limiting injunctive relief to only those employers who do not have anti- discrimination or anti-retaliation provisions. Nor would applicable legal standards countenance a rule which would immunize an employer from injunctive relief simply because it has anti-discrimination policies in place. Certainly, an employer, like FedEx, that has anti-discrimination and anti-retaliation policies but fails to enforce them, could be just as likely to commit future violations of the statute as an employer with no such policies. See Bruso, 239 F.3d at 864 (noting that the employer ignored anti-harassment policies and holding that the district court abused its discretion in refusing to award any injunctive relief). In arguing that no danger of recurrent violations of Title VII exists, FedEx also contends that the Commission "incorrectly states that Mattman was still employed in her same position as VP of Worldwide revenue." FedEx Br. at 10. FedEx fails to explain, however, Mattman's testimony at trial – which the Commission cited in its opening brief – that she still held this position. See EEOC Br. at 18 (citing Doc. 175, pg. 492-93). The Commission's argument on this point was that although Mattman is "retired," the court erred in finding that she is no longer employed by FedEx and, moreover, that she has the potential to influence FedEx's conduct and that FedEx never disciplined her. EEOC Br. at 62 (relying on Massey Yardley, 117 F.3d at 1254). FedEx further argues that the actions of its personnel department did not warrant the imposition of broader injunctive relief because there was no evidence that anyone in personnel "was aware of the ill-will Maines felt towards Mattman at the time it assigned her to hear his GFT complaint." FedEx Br. at 10-11. To the contrary, the Commission cited in its opening brief to Maines's trial testimony that before he filed his GFT complaint he contacted Tierney Robinson in the personnel department to complain about retaliation and that he specifically named Mattman. EEOC Br. at 16 (citing Doc. 173, pg. 256-57). Accordingly, the unrebutted evidence showed that the personnel department knew that Maines was complaining about retaliation by Mattman when it assigned her to hear Maines's retaliation complaint. Therefore, this Court should find that the district court abused its discretion in denying broader injunctive relief. CONCLUSION For the foregoing reasons, this Court should reverse the district court's denial of a front pay award and broader injunctive relief. Respectfully submitted, JAMES L. LEE Deputy General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ___________________________ Anne Noel Occhialino Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7030 Washington, D.C. 20507 (202) 663-4724 CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the type-volume limitations of Fed. R. App. P. 28.1(e)(2)(C). The brief contains 3302 words. ______________________________ Anne Noel Occhialino CERTIFICATE OF SERVICE I hereby certify that one copy of the foregoing brief was sent via FedEx Next Day Air Delivery, on this 18th day of January, 2006, to the following counsel of record: Counsel for Defendant-Appellant-Cross-Appellee Federal Express Corporation Jay Grytdahl Federal Express Corp. 3620 Hacks Cross Rd., Bldg. B Memphis, TN 38125 Counsel for Plaintiff-Intervenor-Appellee Ted Maines Marcia K. Lippincott Marcia K. Lippincott, P.A. 864 Bright Meadow Dr. Lake Mary, FL 32746 ______________________ James M. Tucker Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7024 Washington, D.C. 20507 (202) 663-4870 ************************************************************************ <> <1> To be sure, however, a finding that punitive damages is warranted, while not required, would provide strong support for awarding injunctive relief. And, moreover, the Commission continues to believe the standard for punitive damages was met in this case but elected not to pursue that issue on appeal given Title VII’s cap on damages.