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Bass v. Tanoue

December 21, 2001

MARY ELIZABETH BASS, PLAINTIFF
v.
DONNA TANOUE, CHAIRMAN, FEDERAL DEPOSIT INSURANCE CORPORATION, DEFENDANT



The opinion of the court was delivered by: Deborah A. Robinson United States Magistrate Judge

MEMORANDUM

INTRODUCTION

Following a four-day trial before a jury in this Title VII action, the jury returned a verdict in plaintiff's favor, finding by a preponderance of the evidence that defendant discriminated against her on account of her race in excluding her from consideration for the grade 14 position of Chief of the Financial Review Unit in defendant's Acquisition Services Branch in September, 1997. The jury awarded plaintiff $1,500,000 in compensatory damages, and the court entered judgment for plaintiff in the amount of $300,000. See 42 U.S.C. § 1981a(b)(3)(D).

This matter is now before the court for consideration of Plaintiff's Motion for an Award of Equitable Relief (Docket No. 55). In it, plaintiff seeks (1) re-promotion to a permanent grade 14 level, retroactive to January, 1997, and placement in the position of Chief of the Financial Review Unit, or, another grade 14 position in her career field in defendant's Washington, D.C. office; (2) an award of full back pay, including all pay increases, step increases, quality step increases, awards and bonuses, with interest thereon, as well as any other benefits which she could have received at the permanent grade 14 level, from January, 1997; (3) correction of all official records "to accord with the equitable relief awarded by the Court"; (4) a permanent injunction against discriminatory and retaliatory conduct against plaintiff in the future; and (5) an award of costs, including reasonable attorney's fees of $69,343.00, with interest thereon. Plaintiff's Motion for an Award of Equitable Relief at 2-3; see Memorandum of Points and Authorities in Support of Plaintiff's Motion for an Award of Equitable Relief ("Plaintiff's Memorandum") at 3-11.

Defendant opposes the motion except with respect to plaintiff's request for an award of costs. With respect to all other requests for equitable relief, defendant submits that "the equitable relief Plaintiff requests does not comport with the jury verdict or the evidence in this case." FDIC's Opposition to Plaintiff's Motion for Equitable Relief (Defendant's Opposition") at 1. Defendant maintains that the jury's verdict "does not establish that Ms. Bass would have been selected" for the position of Chief, Financial Review Unit, and that "[t]hat question was neither asked of nor answered by the jury." Defendant submits that "[t]he verdict thus provides no basis for concluding that [plaintiff] would have been entitled to the position [absent] discrimination." FDIC's Opposition at 2. With no citation of authority, defendant maintains that "[t]he denial-of-opportunity-to-compete case actually pled, tried, and decided here is distinct from the kind of denial-of-promotion case that would justify the retroactive promotion remedy Plaintiff seeks." Id. at 6.

Defendant argues that "since the Court should not grant the retroactive promotion request, the back pay request becomes moot." Defendant's Opposition at 11. Defendant also submits that if plaintiff were awarded a retroactive promotion as equitable relief, then back pay should be calculated as if plaintiff had received "fully successful" rather than "outstanding" performance appraisals, see Defendant's Opposition at 11, and be calculated effective November 23, 1997, when the position of Chief of the Financial Review Unit was filled, rather than January, 1997, when plaintiff's grade was reduced from a temporary grade 14 to a permanent grade 12. Id. at 12.

Defendant asserts that "[s]ince promotion is not appropriate, correction of records is also inappropriate." Defendant's Opposition at 12. With respect to the issuance of a permanent injunction, defendant, without citation to any authority, submits that "[t]here has been no finding that future discrimination will, or is likely to occur. Absent such a finding, a blanket injunction against actions already expressly prohibited by law is inappropriate." Id.

Plaintiff, in her reply, suggests that "[t]he fundamental problem" with defendant's opposition is that "it fails to recognize that since the 1991 amendments to the Civil Rights Act of 1964 . . . the remedies phase in a discrimination case is necessarily bifurcated[,]" and that "determinations regarding equitable relief are reserved for the court." Plaintiff's Reply in Further Support of Her Motion for an Award of Equitable Relief ("Plaintiff's Reply") at 4. Plaintiff maintains that there was therefore "no reason for the plaintiff or this Court to ask the jury whether Ms. Bass should have received the promotion to the position of the Chief of the Financial Review Unit at the CG-14 level." Id. at 6. Plaintiff observes that "[i]n any event, the defendant did not submit such a jury interrogatory for this Court's consideration." Id. at 6, n.2. Plaintiff asserts that the "clear implication of plaintiff's articulation of her claims was that had she not been deprived of a fair opportunity to be considered [for the] Chief of [the] Financial Review Unit position, she would have received the promotion." Id. at 6-7. Plaintiff further submits that defendant "envisioned this case prior to the trial as a non-selection case in light of the fact that it expected to present testimony regarding whether or not plaintiff was qualified for the position of Chief of the Financial [Review] Unit[,]" and "[u]ltimately . . . treated [it] as a non-selection case considering it told the jury in its opening argument that Ms. Bass was not qualified." Id. at 7. Finally, plaintiff observes that

[a]t no time during the trial did the defendant put on evidence by the selecting official or any other FDIC management official that Ms. Bass was not the most qualified individual for the position despite this Court's ruling during a bench conference that the door had been opened regarding Ms. Bass' qualification. Id. at 9.

DISCUSSION

Section 2000e-5(g)(1) of Title 42 of the United States Code provides, in relevant part:

If the court finds that the respondent has intentionally engaged in or is intentionally engaging 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 or hiring of employees, with or without back pay . . . or any other equitable relief as the court deems appropriate. 42 U.S.C. § 2000e-5(g)(1).

This Court has observed that "Title VII entitles individuals to be '[made] whole for injuries suffered on account of unlawful employment discrimination.'" Hayes v. Shalala, 933 F. Supp. 21, 24 (D.D.C. 1996) (citing Albermarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975)). Accordingly, "[d]istrict courts must strive to grant 'the most complete relief possible' in cases of Title VII violations." Lander v. Lujan, 888 F.2d 153, 156 (D.C. Cir. 1989) (citing Franks v. Bowman Transp. Co., 424 U.S. 747, 764 (1976)). To that end, "the courts must make the victim 'whole' by 'plac[ing him], as near as may be, in the situation he would have occupied if the wrong had not been committed.'" Lander, 888 F.2d at 156 (citing Albermarle, 422 U.S. at 418-19) (internal citation omitted). In fashioning a remedy which satisfies the objectives of Title VII, the district court is vested with "considerable discretion." Lander, 888 F.2d at 156; see Hayes, 933 F.Supp at 25. Thus,

a district court which endeavors to fashion a remedy for discrimination cannot confine itself to narrow or technical measures which, while perhaps bearing a logical connection to the plaintiff's complaint, fail to reflect the whole of the plaintiff's injury. Rather, comprehensiveness, and a keen sensitivity to the equities of the case before it, must control the court's determination. Brown v. Marsh, 713 ...


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