I cannot, on this record, separate the permissible from the impermissible motivations which lay behind NFLPA's decision to lay-off and then discharge Valerie Thomas. I conclude, accordingly, that NFLPA retaliated against Thomas in violation of Title VII.
Raymond failed to make out a prima facie case of retaliation. The evidence does not establish that she engaged in protected activity that had any connection to her subsequent lay-off and discharge. She did not participate in the meetings with Martin during which promotional opportunities of NFLPA employees was discussed. With the exception of a few impolitic remarks recounted by Upshaw from his recollection of an unauthenticated tape-recording, the substance of her conversations with Davis is unknown. Those remarks, in any event, did not concern employment discrimination. There is a suggestion in the record that Raymond distributed the four-page memorandum critical of NFLPA, but that suggestion is created only by hearsay, and Raymond did not appear at trial to testify. While Thomas and Bland, who did testify, made vague references to a complaint Raymond made to Local 2 representatives sometime in 1987, I can find no connection between that complaint and Raymond's lay-off and discharge in March and April of 1988.
Bland was not laid off. She tendered her resignation on May 20, 1988, some six weeks after the layoff and discharge of her co-plaintiffs. The nexus between her participation in the two meetings with Martin in early March and the series of incidents that she testified transpired in the two months that followed is tenuous at best. In order to support a finding of retaliatory constructive discharge the record must establish not only the plaintiff's exercise of protected activity, but also "aggravating factors" that made the employee's work so intolerable that she was driven to quit. See Dashnaw v. Pena, 304 U.S. App. D.C. 247, 12 F.3d 1112, cert. denied, 130 L. Ed. 2d 333, 115 S. Ct. 417 (1994); Katradis v. Dav-El of Washington, 270 U.S. App. D.C. 23, 846 F.2d 1482 (D.C. Cir. 1988). Bland has failed to prove such "aggravating factors" and has thus failed to establish that she was constructively discharged.
Several of the incidents of which Bland complains -- exclusion from the Board meeting, denial of a day's leave, the direction not to open Upshaw's mail -- occurred nearly two months before Bland submitted her resignation. The isolated comments of Takach and Garner, if made at all, were unprofessional but not, on their face, related to Bland's participation in protected activity. As for NFLPA's demand that Bland repay $ 140, the evidence established that Bland did, in fact, owe the money. Upshaw's comment that he did not see Bland in a particular secretarial job appears benign: Upshaw testified without contradiction that he knew Takach was leaving NFLPA and that he was considering Bland for Takach's job. Bland's working conditions may not have been ideal -- office morale was suffering as a result of the March lay-offs -- but they did not amount to such "intolerable" conditions that a reasonable person in Bland's position would have felt compelled to quit.
1. Back Pay
Plaintiff Thomas is entitled to back pay from the date of her lay-off, March 18, 1988. Dr. Wertheimer's testimony and report established the value at the time of trial of the salary Thomas would have received at NFLPA but for her lay-off and discharge, and the amounts Thomas earned from other employment after leaving NFLPA. I find it too speculative to conclude that Thomas would have been promoted to a management position had she remained at NFLPA. I am also persuaded by the report of defendant's expert, Dr. Staller, that Dr. Wertheimer's estimate of the value of NFLPA's fringe benefits package is overstated. Based on Dr. Staller's analysis of non-working time benefits, legally required benefits and retiree benefits, Dr. Wertheimer's fringe benefit estimates will be reduced by 50 percent.
NFLPA claimed at trial, and had the burden of proving, that Thomas failed to make reasonable efforts to mitigate damages.
Thomas held no permanent employment between March 18, 1988 and June 1995. After her unemployment benefits expired in 1988, she obtained work sporadically through referrals from temporary employment agencies. Thomas also looked for work by responding to newspaper advertisements and announcements of vacancies by public employers. In 1988, she inquired about, or submitted applications for, 22 jobs. In 1989, Thomas made 34 job inquiries. Nearly all the jobs she pursued had salaries well in excess of the pay she earned at NFLPA. In total, Thomas attended only five job interviews. In 1992, Thomas had a child and withdrew from the labor market
According to NFLPA's expert, Dr. Bloch, it should have taken Thomas about three months to find employment comparable to her job at NFLPA. This estimate was based on job availability in the Washington area and the average length of time workers similar to Thomas spent looking for work before landing a job, but Dr. Bloch did not rely on data that distinguished job-seekers who were terminated for cause from those whose previous employment had ended for other reasons. Dr. Bloch also estimated that virtually all job-seekers in Thomas's position who genuinely sought work would be employed within one to two years of leaving a previous job.
Dr. Wertheimer's testimony did not include an estimate of when Thomas should have been expected to find employment. His opinion was that Thomas's negligible post-lay-off earnings of $ 120 in 1988 were reasonable, given the "career scarring" of her termination for cause, and that Thomas's efforts to obtain employment between 1989 and 1991 were also reasonable.
After reviewing the record with due regard for a district court's duty to "fashion [equitable] relief so as to provide a victim of employment discrimination the most complete make-whole relief possible," Barbour v. Merrill, 310 U.S. App. D.C. 419, 48 F.3d 1270, 1278 (D.C. Cir. 1995), I find that NFLPA sustained its burden of establishing that Thomas's job-seeking activity following her discharge fell short of the exercise of "reasonable diligence" that Title VII requires and that her award of back-pay must be limited accordingly. Based on the expert testimony and reports of Dr. Bloch and Dr. Wertheimer, and giving due regard to the effects of "career scarring," I conclude that Thomas should have been able to find employment that was substantially equivalent in terms of responsibilities, salary and benefits by year's end 1989. Accordingly, the award of back pay to Thomas will be limited to the period from her lay-off to December 1989.
Based on Dr. Wertheimer's calculations, modified in accordance with Dr. Staller's analysis of fringe benefits, I find that $ 70,840 approximates the value at the time of trial of the salary and benefits that Thomas would have earned between March 1988 and December 1989, net of amounts she actually earned during the period. Unemployment benefits received by Thomas after her lay-off will not be deducted from the award. See Maxfield v. Sinclair, 766 F.2d 788 (3d Cir. 1985); Brown v. A.J. Gerrard Mfg. Co., 715 F.2d 1549 (11th Cir. 1983) (en banc).
Reinstatement is inappropriate where the relationship between the parties is so hostile that there is no reason to believe that they would enjoy a productive and amiable working relationship. See, e.g., Robinson v. SEPTA, 982 F.2d 892, 899 (3d Cir. 1994); McNeil v. Economics Laboratory, Inc., 800 F.2d 111, 118 (7th Cir. 1986). The reasons asserted by NFLPA for Thomas' discharge and the acrimony displayed by parties throughout this litigation convince me that this is such a case. Moreover, it would be inappropriate to order reinstatement where, as here, the economic harm to the plaintiff that resulted from defendant's wrongful conduct had subsided more than six years before the date of judgment.
An appropriate order accompanies this memorandum.
United States District Judge
Dated: July 23, 1996
For the reasons given in the accompanying memorandum, it is this 23d day of July, 1996, hereby ordered that:
1. Judgment will be entered for plaintiff Valerie Thomas and against defendant in the amount of $ 70,840, with prejudgment interest on that amount from January 1, 1996, to the date judgment is entered, calculated at the prime rate of interest. Plaintiff may submit an appropriate form of judgment.
2. Judgment is hereby entered for defendant and against plaintiffs Rita Raymond and Julie Taylor-Bland.
United States District Judge