Donlin v. Philips Lighting

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit

4-23-2009

Donlin v. Philips Lighting
Precedential or Non-Precedential: Precedential

Docket No. 07-4060

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 PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 07-4060
No. 07-4081

COLLEEN DONLIN,

Appellee,

v.

PHILIPS LIGHTING NORTH AMERICA
CORPORATION
d/b/a
Philips Lighting Company,

Appellant.

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 05-cv-00585)
District Judge: Honorable Richard P. Conaboy

Argued November 17, 2008
 Before: SCIRICA, Chief Judge, FUENTES and
HARDIMAN, Circuit Judges.

(Filed: April 23, 2009)

Stephen D. Rhoades (Argued)
Law Offices of Edward P. McNelis
19 Broad Street
Hazelton, PA 18201-0000

Theodore R. Laputka, Jr.
Theodore R. Laputka & Associates
19 East Broad Street
Hazleton, PA 18201
Attorneys for Appellee

David R. Fine (Argued)
Jacqueline E. Bedard
Amy L. Groff
K&L Gates
17 North Second Street
18th Floor, Market Square Plaza
Harrisburg, PA 17101
Attorneys for Appellant

OPINION OF THE COURT

2
HARDIMAN, Circuit Judge.

Colleen Donlin sued Philips Electronics North America
Corporation for employment discrimination after it failed to hire
her as a full-time employee. The case was tried before a jury
and Donlin was awarded $164,850 in compensatory damages.
Philips appealed, raising various challenges to liability and
damages. Donlin filed a cross-appeal. For the reasons that
follow, we will affirm the jury’s finding of liability but remand
for a new trial on damages.

I.

Philips hired Donlin as a temporary warehouse employee
at its Mountaintop, Pennsylvania distribution center in May
2002. Because of fluctuations in demand for Philips’s products,
the Mountaintop facility occasionally hired temporary
employees to fill and prepare orders for shipment. Like many of
the temps at the Mountaintop facility, Donlin applied for a full-
time position in the plant, but was not hired. After deciding not
to hire Donlin as a full-time employee, Philips ended Donlin’s
temporary assignment in January 2003, citing a decrease in sales
volume.

Donlin sued Philips for gender discrimination and
retaliation pursuant to Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e-2, et seq., seeking compensatory and punitive
damages. The District Court granted Philips summary judgment
on Donlin’s retaliation claim, but her gender discrimination
claim proceeded to trial. At the conclusion of Donlin’s case-in-
chief, Philips moved for judgment as a matter of law, which the

3
District Court denied. Philips renewed its motion for judgment
as a matter of law after putting on its defense. This time, the
District Court denied Philips’s motion on liability grounds, but
granted Philips judgment on Donlin’s claim for punitive
damages.

The case proceeded to the jury on the issue of liability as
well as compensatory damages in the form of back pay and front
pay.1 The jury rendered a verdict in Donlin’s favor on liability
and recommended $63,050 in back pay and $395,795 in front
pay, for a total of $458,845. The jury’s advisory verdict on front
pay was based on the premise that Donlin would have worked
for 25 more years until retirement.

Following post-verdict briefing, the District Court heeded
the advice of the jury on the back-pay issue, but modified its
front-pay award by reducing it to account for only 10 years of
damages, finding that calculating damages for a 25-year period
was too speculative. The final front pay award was $101,800,
for a total of $164,850 in compensatory damages.

At the conclusion of the proceedings, Philips filed a
motion for judgment notwithstanding the verdict, which the
District Court denied. Philips now appeals, asserting errors with

1
The jury’s role was only advisory on the issue of
damages because back pay and front pay are equitable remedies
to be determined by the court. See Pollard v. E.I. du Pont de
Nemours & Co., 532 U.S. 843, 849-50 (2001); Spencer v. Wal-
Mart Stores, Inc., 469 F.3d 311, 315 (3d Cir. 2006).

4
regard to liability, damages, and attorney’s fees, and Donlin
cross-appeals. We have jurisdiction under 28 U.S.C. § 1291.

II.

We begin with Philips’s contention that the liability
verdict cannot stand because the jury instructions were flawed.
Specifically, Philips asserts that the District Court
mischaracterized its rationale for deciding not to hire Donlin as
a permanent employee. Because Philips objected to the jury
instructions at trial, we review this claim for abuse of discretion.
Cooper Distrib. Co. v. Amana Refrigeration, Inc., 180 F.3d
542, 549 (3d Cir. 1999). We must determine whether, taken as
a whole, the instruction properly apprised the jury of the issues
and the applicable law. Dressler v. Busch Entm’t Corp., 143
F.3d 778, 780 (3d Cir. 1998).

In determining liability, the trial court analyzed Donlin’s
employment discrimination suit under the familiar burden-
shifting framework of McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-04 (1973). Donlin first had to make out a prima
facie case of discrimination. Id. at 802. The burden then shifted
to Philips to present a nondiscriminatory reason for declining to
hire her. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
252-53 (1981). Donlin then had to demonstrate that the reasons
claimed by Philips were pretextual. See Fuentes v. Perskie, 32
F.3d 759, 764 (3d Cir. 1994).

Philips contends that the District Court’s jury charge
distorted step two of the McDonnell Douglas framework by
mischaracterizing its nondiscriminatory reasons for choosing not

5
to hire Donlin. The District Court’s instruction to the jury
provided, in relevant part:

I instruct you . . . that Philips Lighting has given
in this case what is generally accepted as a
nondiscriminatory reason for its failure to hire
Ms. Donlin. They told you that their decision was
based on her record of attendance, production,
and accuracy as compared to all the other
applicants that they considered for the same job.
I instruct you, members of the jury, that if you
disbelieve Philips’s explanation for its conduct,
then you may – you may not, but you may very
well find that Ms. Donlin has proved intentional
discrimination.

(emphasis added).

Philips zeroes in on the word “accuracy,” claiming that
it should not have been included in the instruction because it
was not a relevant factor in the company’s hiring decision.
Because the instructions did not accurately summarize the
company’s reasons for choosing not to hire Donlin, Philips
argues, the jury was invited to find that Philips’s rationale for
not hiring Donlin was pretextual since Philips never claimed that
Donlin was “inaccurate.”

Philips tacitly accuses the District Court of pulling the
issue of “accuracy” out of thin air, contending that its witnesses
consistently described the company’s hiring factors as only
attendance, productivity, and quality of work. This argument is

6
belied by the record. In response to a question regarding which
factors were important when hiring a temporary worker for
permanent employment, Donlin’s shift supervisor, Duane
Wright, agreed that the company considered production,
attendance, and accuracy to be of “paramount importance.”
Additionally, at various stages of the trial, the jury heard
testimony regarding “picking errors,” which occurred when an
employee failed to correctly collect products for an order; such
errors can fairly be described as involving accuracy.

By taking issue with the District Court’s use of the word
“accuracy,” Philips claims reversible error by latching on to one
word in a 23-page jury charge. We are not persuaded. We
begin by noting that a mistake in a jury instruction constitutes
reversible error only if it fails to “fairly and adequately” present
the issues in the case without confusing or misleading the jury.
United States v. Ellis, 156 F.3d 493, 498 n.7 (3d Cir. 1998). We
cannot say that the use of the single word “accuracy” so altered
the jury’s thinking as to give such a misimpression in this case.
Indeed, there is a logical connection between an employee’s
accuracy and her quality of work and productivity. As a
temporary warehouse employee, Donlin filled and prepared
orders for shipment. If she could not prepare orders accurately,
the quality of her work would suffer. To suggest otherwise is
overly semantic. Accordingly, we find that the District Court
met its responsibility to provide the jury with a clear articulation
of the relevant law. See United States v. Goldblatt, 813 F.2d
619, 623 (3d Cir. 1987).

The trial judge is permitted considerable latitude to
summarize and comment upon the evidence, provided that the

7
jury is neither confused nor misled. Am. Home Assur. Co. v.
Sunshine Supermarket, Inc., 753 F.2d 321, 327 (3d Cir. 1985);
Hickey v. United States, 208 F.2d 269, 274 (3d Cir. 1953). Jury
instructions are to be read as a whole, United States v. Flores,
454 F.3d 149, 157 (3d Cir. 2006), and it is wrong to suggest that
the word “accuracy” so infected the instructions as to confuse or
mislead the jury. Viewing the jury’s instructions in their entirety
and in context, we find that the District Court did not abuse its
discretion. Therefore, we will affirm Donlin’s liability verdict
against Philips.2

2
Though we find in Donlin’s favor regarding the liability
verdict, we reject her cross-appeal that Philips was amenable to
punitive damages. A Title VII plaintiff may recover punitive
damages for intentional discrimination where “the complaining
party demonstrates that the respondent engaged in . . .
discriminatory practices with malice or with reckless
indifference to . . . federally protected rights.” 42 U.S.C. §
1981a(b)(1); Le v. Univ. of Pa., 321 F.3d 403, 409 (3d Cir.
2003). Though Donlin alleges conclusorily that Philips
exhibited deliberate indifference to her federally protected rights
by way of pervasive sexual discrimination, record tampering,
and destruction of evidence, she failed to present sufficient
evidence that Philips acted with malice or reckless indifference.
Because no reasonable juror could have returned a verdict
assessing punitive damages against Philips, we will affirm the
District Court’s judgment on this issue.

8
 III.

Having determined that the District Court did not err
regarding liability, we turn to the more complicated issue of
damages.

A.

As a threshold matter, Philips contends that the District
Court’s damages analysis was flawed because it rested on the
admission of improper testimony. Specifically, Philips avers
that the District Court erred under Rule 701 of the Federal Rules
of Evidence in allowing Donlin to provide specialized or
technical testimony regarding her compensatory damages. As
to back pay, the District Court allowed Donlin to testify not only
about her actual earnings, but also about her estimated lost
earnings and pension benefits. With regard to front pay,
Donlin’s testimony detailed the number of years she intended to
work and the annual salary differential between Philips and the
other companies where she was employed. In addition, Donlin
estimated her future pension value, performed a probability of
death calculation, and reduced her front pay award to its present
value.

We review the District Court’s evidentiary rulings,
including whether opinions are admissible under Rule 701, for
abuse of discretion. See United States v. Leo, 941 F.2d 181,

9
192-93 (3d Cir. 1991).3 However, we will only reverse if we
find the District Court’s error was not harmless. See Becker v.
ARCO Chem. Co., 207 F.3d 176, 205 (3d Cir. 2000).

Rule 701 governs opinion testimony by lay witnesses:
If the witness is not testifying as an expert, the
witness’ testimony in the form of opinions or
inferences is limited to those opinions or
inferences which are (a) rationally based on the
perception of the witness, and (b) helpful to a
clear understanding of the witness’ testimony or
the determination of a fact in issue, and (c) not
based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.

F ED. R. E VID. 701.

3
Contrary to Donlin’s assertion, Philips did not waive this
issue in the District Court when it decided not to seek a mistrial
during a sidebar. Philips objected to the introduction of
damages evidence that Donlin withheld during discovery, not to
the competency of Donlin’s testimony. By agreeing to proceed
following the sidebar, Philips waived its objection to Donlin’s
belated damages calculations, but that does not vitiate its
objection to Donlin’s testimony on Rule 701 grounds. Indeed,
Philips objected to Donlin’s testimony on this ground in both a
motion in limine and at the conclusion of the first day of the
trial.

10
 Subsection (c) was added in 2000 to “eliminate the risk
that the reliability requirements set forth in Rule 702 will be
evaded through the simple expedient of proffering an expert in
lay witness clothing.” F ED. R. E VID. 701 advisory committee’s
notes for the 2000 amendments [hereinafter Notes to 2000
Amendments]; see also United States v. Garcia, 413 F.3d 201,
215 (2d Cir. 2005) (“The purpose of [subsection (c)] is to
prevent a party from conflating expert and lay opinion testimony
thereby conferring an aura of expertise on a witness without
satisfying the reliability standard for expert testimony set forth
in Rule 702.”).4 As a result, lay testimony must “result[ ] from
a process of reasoning familiar in everyday life,” as opposed to

4
Rule 702 provides that:

If scientific, technical, or other specialized
knowledge will assist the trier of fact to
understand the evidence or to determine a fact in
issue, a witness qualified as an expert by
knowledge, skill, experience, training, or
education, may testify thereto in the form of an
opinion or otherwise, if (1) the testimony is based
upon sufficient facts or data, (2) the testimony is
the product of reliable principles and methods,
and (3) the witness has applied the principles and
methods reliably to the facts of the case.

F ED. R. E VID. 702.

11
a process “which can be mastered only by specialists in the
field.” Notes to 2000 Amendments.

This does not mean that an expert is always necessary
whenever the testimony is of a specialized or technical nature.
When a lay witness has particularized knowledge by virtue of
her experience, she may testify — even if the subject matter is
specialized or technical — because the testimony is based upon
the layperson’s personal knowledge rather than on specialized
knowledge within the scope of Rule 702. See Notes to 2000
Amendments. At the same time, we have consistently required
that lay testimony requiring future projections of a business or
operation come from someone who has intimate and thorough
knowledge of the business gathered from either a lengthy tenure
or a position of authority. For instance, in Lightning Lube, Inc.
v. Witco Corp., 4 F.3d 1153 (3d Cir. 1993), we allowed a
company’s founder and owner to testify regarding his lost future
profits and harm to the value of his business. Id. at 1175.
Though the testimony concerned a “specialized” field and
involved predictions about future business performance, we
found that the witness had adequate personal knowledge in light
of his in-depth experience with the business’s contracts,
operating costs, and competition. Id.; cf. In re Merritt Logan,
Inc., 901 F.2d 349, 360 (3d Cir. 1990) (principal shareholder of
business properly testified concerning business projections
where he was intimately involved with the investments and
management of the business); Teen-Ed, Inc. v. Kimball Int’l,
Inc., 620 F.2d 399, 403 (3d Cir. 1980) (company’s licensed
public accountant was allowed to testify regarding lost profits
based on his personal knowledge of company’s balance sheets).
The Advisory Committee’s notes to the 2000 amendment to

12
Rule 701 specifically address Lightning Lube and note that its
holding remains undisturbed by the amendment.

We have extended Lightning Lube’s personal knowledge
exception to plaintiffs testifying in employment discrimination
suits. In Maxfield v. Sinclair International, 766 F.2d 788 (3d
Cir. 1985), we allowed a plaintiff alleging age discrimination to
testify as to his projected earnings and to reduce those earnings
to present value. Id. at 797. The facts of Maxfield are
significantly different from Donlin’s case, however, because the
plaintiff worked for the defendant company for nearly 40 years.
Given his significant employment history, we recognized that
Maxfield would be able to base his request for front pay upon
his former earnings without making any projection in earnings
“for which expert testimony was required.” Id. In contrast,
Donlin was only a temporary employee of Philips for a term of
less than one year and did not develop in-depth knowledge of
the company’s salary structure, advancement opportunities, pay
raises, or employment patterns. Therefore, her testimony cannot
be considered within her personal knowledge and she does not
qualify for the personalized knowledge exception.

In crediting Donlin’s testimony, the District Court relied
principally on Paolella v. Browning-Ferris, Inc., 158 F.3d 183
(3d Cir. 1998). There, Paolella sued under Delaware law for
wrongful discharge after he was fired for complaining about his
company’s illegal billing practices. See id. at 183-88. The jury
found in his favor and awarded $135,000 in back pay and
$597,000 in front pay. Id. at 188. The company contended
there was insufficient evidence to support the jury’s front pay
award and argued that Paolella did not offer expert actuarial

13
testimony to support his claim. Id. at 194. Paolella had been
terminated in early 1994, and presented evidence of his pre-
termination salary from 1991 to 1993, as well as his post-
termination earnings for 1995. Id. We found that based on this
information, the jury “could reasonably calculate a front pay
award according to the district court’s instructions.” Id. at 195.
Accordingly, we held that we “do not believe the absence of
expert testimony renders the jury calculation improper.” Id.

Though Paolella might seem analogous to Donlin’s case,
the District Court’s reliance thereon is problematic for two
reasons. First, Paolella predated the 2000 amendment to Rule
701. That amendment added a new requirement for
admissibility — subsection (c) regarding “technical” or
“specialized” testimony — and we must question the vitality of
Paolella in light of the additional requirement.

Second, the testimony offered in Paolella is
distinguishable from Donlin’s case. The only front pay
testimony given in Paolella related to straightforward evidence
of the plaintiff’s salary as well as an estimate that the plaintiff
would work for another 14 years, until age 65; there was no
indication Paolella required the witness to undertake
complicated tasks such as calculating life-expectancy, assessing
amortization rates, estimating pay raises, discounting to present
value, or calculating earnings potential in a pension portfolio.

In that regard, our more recent holding in Eichorn v.
AT&T Corp., 484 F.3d 644 (3d Cir. 2007), is more on point.
There, a group of employees sued claiming a violation of their
pension rights after their employer merged with a larger

14
company. Id. at 646-47. The plaintiffs failed to produce an
expert witness on damages and instead relied on a report and
testimony from plaintiffs’ counsel’s son. Id. at 648. The
witness made various assumptions — much like those made by
Donlin — including: when plaintiffs would have retired; how
their salaries would have increased in the merged company;
what choices the plaintiffs would have made with respect to
pension benefits; and the life expectancy of each plaintiff. Id.
at 648. We acknowledged that pursuant to Lightning Lube and
Maxfield, expert testimony is “not always required to prove
damages in cases where projected future earnings are part of the
calculation,” id. at 650 n.3, but explained that Rule 701 requires
a lay witness to have a “reasonable basis grounded either in
experience or specialized knowledge for arriving at the opinion
that he or she expresses,” id. at 649. Because the witness was
testifying based on neither experience nor personal knowledge
and the calculations required were “sufficiently complex,” we
concluded that the district court did not abuse its discretion in
barring the lay testimony. Id.

In accordance with Eichorn, we find that the District
Court should have barred portions of Donlin’s testimony
requiring technical or specialized knowledge. Donlin admitted
that she was “not a professional,” nor a finance major or
forensic economist. Under the Lightning Lube exception,
Donlin’s testimony regarding facts within her personal
knowledge (such as her current and past earnings) was
appropriate. But, much of Donlin’s testimony went beyond
those easily verifiable facts within her personal knowledge and
instead required forward-looking speculation for which she
lacked the necessary training. For instance, in calculating her

15
front pay, Donlin speculated that Philips would provide a 3%
annual pay raise; in fact, the company did not provide an
increase of more than 1.3% in the years immediately prior to the
trial. Additionally, having no experience with retirement
benefits, Donlin misinterpreted Philips’s definition of
“pensionable earnings” and erroneously assumed a flat 5% per
year on pension earnings based only on an example in the
Philips pension manual. After admitting that she had never
performed a present-value discounting calculation prior to the
day before trial, Donlin testified that she received instructions
from her lawyer the night before regarding the proper discount
rate.5 Finally, Donlin misapplied the life expectancy charts and
therefore did not properly account for the probability of her
death.

In sum, Donlin’s testimony crossed the line into subject
areas that demand expert testimony. Specifically, we find that
Donlin’s testimony regarding the pension component of her
back pay damages was improper. 6 On the issue of front pay,

5
The District Court’s memorandum on damages suggests
that discounting is best left to experts. In performing its own
calculation, the District Court explained: “Some disagreement
exists even among experts as to the methodology used to
discount an award to present value.” Donlin v. Philips Elec. N.
Am. Corp., No. 3:05-CV-0585, 2007 WL 1238541, at *3 n.5
(M.D. Pa. Apr. 26, 2007) [hereinafter Damages Memorandum].
6
There were two components of Donlin’s back-pay
award: lost wages and lost pension earnings. While we approve

16
Donlin’s lay testimony was inappropriate with regard to her
estimate of the annual pay raises at Philips, her estimated
pension value, and the discounts she made for the probability of
death and to find the present value of the award. Because this
testimony was of a specialized or technical nature and was not
within Donlin’s personal knowledge, the District Court abused
its discretion in allowing her to offer it. A trial judge must
rigorously examine the reliability of a layperson’s opinion by
ensuring that the witness possesses sufficient specialized
knowledge or experience which is germane to the opinion
offered. Asplundh Mfg. Div. v. Benton Harbor Eng’g, 57 F.3d
1190, 1200-01 (3d Cir. 1995). Here, the District Court erred in
that regard.

Furthermore, it is readily apparent that this error was not
harmless. See Hirst v. Inverness Hotel Corp., 544 F.3d 221, 228
(3d Cir. 2008). Donlin’s improper testimony constituted a
significant share of the damages evidence presented at trial, and
we cannot find that it is “highly probable” that the erroneous
admission of her testimony did not contribute to the damages
award. See Advanced Med., Inc. v. Arden Med. Sys., Inc., 955
F.2d 188, 199 (3d Cir. 1992). Accordingly, we will vacate the
judgment of the District Court in this regard and remand for a
new trial on damages.

of Donlin’s testimony with regard to her lost wages, we find that
the District Court improperly credited Donlin’s testimony that
she lost $9,453 in back pension benefits.

17
 B.

In light of our decision to remand for a new trial on
damages, we will address the remainder of Philips’s arguments
to provide guidance to the District Court.

First, Philips contends that Donlin should not be entitled
to compensatory damages because she found better employment
after Philips refused to hire her. We must address both back pay
and front pay.

1. Back Pay

Back pay is designed to make victims of unlawful
discrimination whole by restoring them to the position they
would have been in absent the discrimination. See Loeffler v.
Frank, 486 U.S. 549, 558 (1988). Section 706(g) of the Civil
Rights Act of 1964, which governs back pay awards in Title VII
cases, provides:

If the court finds that the respondent has
intentionally engaged in or is intentionally
engaging in an unlawful employment practice . .
. 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 . . . any other
equitable relief as the court deems appropriate . .
. . Interim earnings or amounts earnable with
reasonable diligence by the person or persons

18
 discriminated against shall operate to reduce the
back pay otherwise allowable.

42 U.S.C. § 2000e-5(g).

Back pay is not an automatic or mandatory remedy, but
“one which the courts ‘may’ invoke” at their equitable
discretion. Albemarle Paper Co. v. Moody, 422 U.S. 405, 415
(1975); see also Waddell v. Small Tube Prods., Inc., 799 F.2d
69, 78 (3d Cir. 1986). When a plaintiff finds employment that
is equivalent or better than the position she was wrongly denied,
the right to damages ends because it is no longer necessary to
achieve an equitable purpose; the plaintiff at that point has been
restored to the position she would have been in absent the
discrimination. See Ford Motor Co. v. EEOC, 458 U.S. 219,
236 (1982).

Philips contends that back pay damages are not required
because Donlin obtained full-time employment with another
company, Romark Logistics, eight months after her employment
with Philips ended. Donlin worked at Romark Logistics from
September 2003 until August 2005 before voluntarily leaving to
take a position at Mission Foods. Her employment at Mission
Foods continued through the trial. Philips asserts that Donlin’s
work at Romark restored her to the position she would have
been in absent the alleged discrimination, and her back pay
should terminate at the time she was rehired.7

7
Philips concedes that, given our affirmance of the
adverse liability verdict, back pay is appropriate for the eight

19
 In light of the facts found by the District Court, we
disagree because Philips understates the requirements for an
award of back pay and, as a result, comes to a legal conclusion
that is inconsistent with the District Court’s findings of fact.
Those findings of fact are no longer valid, however, because the
numbers used by the District Court were based on improper
testimony. Our analysis is nonetheless illustrative and should
guide the District Court on remand.

From a legal perspective, the fact that Donlin found a job
is insufficient by itself to demonstrate that she reestablished
herself in the workplace such that she should be ineligible for
back pay damages; the law requires that she find new
employment that is “better or substantially equivalent.” Ford
Motor, 458 U.S. at 236. “Substantially equivalent” employment
affords “virtually identical promotional opportunities,
compensation, job responsibilities, and status as the position
from which the Title VII claimant has been discriminatorily
terminated.” Booker v. Taylor Milk Co., 64 F.3d 860, 866 (3d
Cir. 1995).

The District Court found, as a matter of fact, that Donlin
would have made $182,923 working for Philips from the time
of her termination until the time of trial and that she lost pension
earnings in that same period in the amount of $9,453 for a total
of $192,376. Damages Memorandum at *3. During that same
time period, the District Court found that Donlin’s actual

months between the date Philips terminated Donlin and the date
Romark hired her.

20
earnings were $129,326. Id.8 Comparing the two figures, the
District Court concluded as a matter of law, that Donlin suffered
a back pay loss of $63,050 “based on the difference between the
amount she earned from her discharge until the time of trial and

8
The District Court presented this factual finding as a lump
sum for the entire back-pay period. It would have been helpful had
the District Court broken down its analysis among three phases:
Donlin’s period of unemployment (January to August 2003); her
term of employment at Romark (September 2003 to August 2005);
and her term of employment at Mission Foods (September 2005 to
trial). We must compare Donlin’s putative earnings at Philips to
her actual earnings at Romark for the purpose of considering
whether the Romark job was substantially equivalent; if the job at
Romark was substantially equivalent to Philips, then Donlin’s
compensatory damages should have ceased in August 2003 when
she was hired by Romark regardless of whether she subsequently
earned a lower salary at Mission.

Although the District Court provided a lump sum amount,
we are able to extrapolate Donlin’s earnings at each phase of
employment from Donlin’s trial exhibits, which were accepted by
the District Court with minimal deviation. In doing so, we observe
that Donlin’s compensation at both Romark and Mission fell short
of what she would have earned at Philips over that time period.
Additionally, for reasons discussed in Section III.C, infra, we are
convinced that the jobs at Romark and Mission are substantially
equivalent with one another. On remand, however, the District
Court should be more explicit with its findings and compare
Donlin’s putative earnings at Philips to her actual earnings at
Romark alone in order to gauge whether she found substantially
equivalent employment.

21
the approximate amount she would have earned . . . had she
remained at Philips.” Id.

Philips asserts that Donlin received greater compensation
than she would have received had she been hired by Philips
because she worked overtime hours in her new job and received
a greater annual pay raise than the raises given by Philips. Id.
The District Court’s undisputed factual findings at the first trial
do not comport with this conclusion, however. Instead, they
indicate that Donlin earned less in her new job, even taking into
account her overtime compensation and pay raise.9 These facts
supported a finding that the two jobs were not substantially
equivalent. If the evidence on remand supports a similar
finding, the District Court should again conclude as a matter of
law that Donlin can only be made whole — as Title VII
demands — if awarded sufficient back pay to make up the
difference.

2. Front Pay

Though back pay makes a plaintiff whole from the time
of discrimination until trial, a plaintiff’s injury may continue
thereafter. Accordingly, courts may award front pay where a

9
Philips claims it “does not dispute the district court’s
findings of fact,” but disputes only the “failure to apply the law
to those facts.” Based on our understanding of the trial exhibits
and the District Court’s findings, however, Philips’s claim that
Donlin received greater compensation at Romark than she
would have at Philps is a factual claim that was rejected at trial.

22
victim of employment discrimination will experience a loss of
future earnings because she cannot be placed in the position she
was unlawfully denied. See Maxfield, 766 F.2d at 795-97.
Front pay is an alternative to the traditional equitable remedy of
reinstatement, Squires v. Bonser, 54 F.3d 168, 176 (3d Cir.
1995), which would be inappropriate where there is a likelihood
of continuing disharmony between the parties or unavailable
because no comparable position exists. See Blum v. Witco
Chem. Corp., 829 F.2d 367, 374 (3d Cir. 1987); Goss v. Exxon
Office Sys. Co., 747 F.2d 885, 890 (3d Cir. 1984). Because the
award of front pay is discretionary, we review the District
Court’s decision for abuse of discretion and will reverse only if
we are left with a definite and firm conviction that a mistake has
been committed. See In re Cohn, 54 F.3d 1108, 1113 (3d Cir.
1995); Feldman v. Phila. Hous. Auth., 43 F.3d 823, 832 (3d Cir.
1994).

The jury recommended a front-pay award of $395,795 to
cover the difference in Donlin’s salary and pension earnings for
25 years, adjusted to account for the probability of death and
discounted to present value. The District Court modified that
award, limiting front pay damages to 10 years, which totaled
$101,800. Despite this reduction, Philips asserts that the District
Court’s award of front pay was erroneous in two respects.

First, Philips claims that Donlin should not be entitled to
front pay because she mitigated her damages by reestablishing
herself in the workforce before trial. Philips cites Ford Motor
for the proposition that damages are inappropriate where they
“would catapult [the plaintiff] into a better position than they
would have enjoyed in the absence of discrimination.” 458 U.S.

23
at 234. As we have explained, however, the District Court
found that Donlin was not in the same position she would have
been in had Philips hired her as a full-time employee. Instead,
the District Court concluded that her salary would have been
higher had she been hired and remained at Philips.10 When a
defendant’s front pay objection is predicated upon the same
objections regarding mitigation of damages which we have
rejected with regard to back pay, we reject the front pay
argument as well. See Goss, 747 F.2d at 890.

Second, Philips asserts that an award of front pay based
on a 10-year period was inappropriate because it involved
speculation regarding market conditions, Donlin’s future
earnings, and her length of employment. The District Court
agreed with this argument in part when it reduced the advisory
jury’s award of front pay from 25 years to 10 years. Damages
Memorandum at *3 (“An award of front pay until retirement at
age 65, a twenty-five year period, would be too speculative.”).
Philips contends that the time period is still too long, noting that

10
As we noted supra, the District Court’s findings regarding
Donlin’s future salary were based on improper testimony. If the
District Court finds on remand, considering the new damages
evidence, that the job Donlin held at Romark was not substantially
equivalent to or better than the job she would have held at Philips,
then the following analysis regarding the proper length of the front-
pay damages period will be applicable in the second trial. By
contrast, if the District Court finds that Donlin’s Romark job was
substantially equivalent or better than the job she would have held
at Philips, then front pay would be unwarranted because Donlin
would have mitigated her damages.

24
the Mountaintop facility where Donlin was employed is subject
to unpredictable market conditions — including adjustments in
demand and the availability of exclusive contracts with major
suppliers — which cannot be accurately estimated for 10 years.

Because a claimant’s work and life expectancy are
pertinent factors in calculating front pay, Anastasio v. Schering
Corp., 838 F.2d 701, 709 (3d Cir. 1988), such an award
“necessarily implicates a prediction about the future.” Dillon v.
Coles, 746 F.2d 998, 1006 (3d Cir. 1984). Accordingly, we will
not refuse to award front pay merely because some prediction is
necessary. Green v. USX Corp., 843 F.2d 1511, 1532 (3d Cir.
1988), vacated on other grounds, 490 U.S. 1103 (1989),
reinstated in relevant part, 896 F.2d 801, 801 (3d Cir. 1990).
Instead, we allow the District Court to exercise discretion in
selecting a cut-off date for an equitable front pay remedy subject
to the limitation that front pay only be awarded “for a reasonable
future period required for the victim to reestablish her rightful
place in the job market.” Goss, 747 F.2d at 889-90.

In Goss, the plaintiff complained that the District Court
cut off her front pay after just four months, arguing that front
pay should be extended because she was unlikely to earn as
much money in her new sales job. 747 F.2d at 890. Goss’s
earnings were commission-based and her commissions were
likely to be lower in her new position given her lack of
familiarity with her new employer’s products. Id. Accordingly,
Goss argued that her front pay should be extended even though
she found new employment. Id. We disagreed, finding that the
question whether Goss would be less successful in her new job
required unreasonable speculation regarding future market

25
conditions and the company’s success. Id. Therefore, we
declined to lengthen the front pay damages period. Id. at 891.

In Green, however, we distinguished Goss and imposed
a two-year front pay award for a class of plaintiffs asserting
discrimination in the hiring process of a Pennsylvania steel
company. 843 F.2d at 1532. Because the plaintiffs presented
evidence for the period immediately following trial, we found
that calculating front pay damages based on a two-year period
was a “reasonable compromise” and not “wild speculation”
because it would help offset future harm that “would certainly
be caused” by past discrimination. Id. (emphasis in original).

Though the 10-year damages period granted by the
District Court exceeds that awarded in Green, we note that there
will often be uncertainty concerning how long the front-pay
period should be, and the evidence adduced at trial will rarely
point to a single, certain number of weeks, months, or years.
More likely, the evidence will support a range of reasonable
front-pay periods. Within this range, the district court should
decide which award is most appropriate to make the claimant
whole. See, e.g., Whittington v. Nordam Group Inc., 429 F.3d
986, 1000-01 (10th Cir. 2005); Reed v. A.W. Lawrence & Co.,
95 F.3d 1170, 1182 (2d Cir. 1996).11

11
The District Court was not required to submit the issue of
front pay to the advisory jury in the first place because a bench trial
is sufficient to determine an equitable award such as front pay.
See, e.g., Madden v. Chattanooga City Wide Serv. Dep’t, 549 F.3d
666 (6th Cir. 2008).

26
 Such an exercise of discretion may result in an award
different from what one or both of the parties would prefer.
This possibility is caused by the inexactness of predictive
evidence for front pay, and our standard of review (abuse of
discretion) grants considerable leeway to district courts to grant
an award that best serves Title VII’s remedial purpose.

We have not yet spoken precedentially regarding the
precise length of time that is appropriate for an award of front
pay. Indeed, in one case, a front-pay award of X years may be
appropriate, while on different facts, a front-pay award for that
same term of years would be inappropriate. These decisions are
left to the sound discretion of the district court and every case
must be considered on its particular facts. We note, however,
that other courts of appeals have affirmed front-pay awards of
10 years or more. See, e.g., Meacham v. Knolls Atomic Power
Lab., 381 F.3d 56, 79 (2d Cir. 2004) (affirming a district court’s
award of front pay for 9-12.5 years to victims of age
discrimination), vacated on other grounds sub nom KAPL, Inc.
v. Meacham, 544 U.S. 957 (2005); Pierce v. Atchison, Topeka
& Santa Fe Ry. Co., 65 F.3d 562, 574 (7th Cir. 1995) (10-year
front pay award did not constitute an abuse of discretion);
Hukkanen v. Int’l Union of Operating Eng’rs, Hoisting &
Portable Local No. 101, 3 F.3d 281, 286 (8th Cir. 1993) (same).
Additionally, we note that in Blum, we held that awarding front
pay until plaintiffs’ projected retirement in eight years did not
require unreasonable speculation. 829 F.2d at 376. We see no
reason why a front pay award for eight years would be proper,
but an award for 10 years constitutes an abuse of discretion.
This is especially true here, where an advisory jury
recommended front pay for 25 years.

27
 Accordingly, we find that the District Court did not abuse
its discretion when it awarded Donlin front pay for 10 years.

C.

Philips next argues that the District Court erred in
calculating the amount of compensatory damages in light of
Donlin’s subsequent employment decisions. In September 2003,
eight months after Philips declined to hire her, Donlin found
employment at Romark Logistics where she worked for nearly
two years. In August 2005, Donlin voluntarily left Romark for
a position at Mission Foods because it was closer to her home.
Philips contends Donlin’s transfer to a lower-paying job at
Mission was inconsistent with her duty to mitigate damages and
the District Court erred by forcing Philips to suffer the decrease
in Donlin’s wages in the form of increased compensatory
damages. This argument is inconsistent with the record.

Damages are reduced under Title VII for “interim
earnings or amounts earnable with reasonable diligence by the
person or persons discriminated against.” 42 U.S.C. § 2000e-
5(g)(1) (emphasis added). The availability of an equivalent or
better job “terminates the ongoing ill effects” of the defendant’s
discriminatory action, so the right to damages ends when such
an opportunity becomes available. Ford Motor, 458 U.S. at 234.
To hold otherwise, the Supreme Court reasoned, would
“requir[e] a defendant to provide what amounts to a form of
unemployment insurance . . . .” Id. at 235. The burden falls on
the defendant employer to prove a failure to mitigate by
demonstrating that substantially equivalent work was available,

28
and that the claimant did not exercise reasonable diligence to
obtain it. Le, 321 F.3d at 407.

Our sister circuit courts of appeals have held that one
must make “reasonable efforts” to mitigate her loss of income,
and only unjustified refusals to find or accept other employment
are penalized. NLRB v. Arduini Mfg. Co., 394 F.2d 420, 422-23
(1st Cir. 1968). An employee need not seek employment “which
involves conditions that are substantially more onerous than
[her] previous position.” NLRB v. Madison Courier, Inc., 472
F.2d 1307, 1320-21 (D.C. Cir. 1972). Notably, the employee is
not required to accept employment which is located an
unreasonable distance from her home. Id. at 1314. “It is well
settled that a claimant has not failed to make a reasonable effort
to mitigate damages where [she] refused to accept employment
that is an unreasonable distance from [her] residence.” Rasimas
v. Mich. Dep’t of Mental Health, 714 F.2d 614, 625 (6th Cir.
1983).

Philips argues that Donlin’s 32-mile commute to Romark
was not unreasonable and that many of the employees Donlin
worked with at Philips commuted even farther. Because the
commute to Romark was not unreasonable, Philips contends,
Donlin failed to mitigate her damages by voluntarily accepting
a lower-paying position at Mission. We disagree because simple
math reveals that Donlin’s decision to work closer to home did
not constitute a failure to mitigate. When Donlin left Romark,
she was making $14.70 per hour, but when she moved to

29
Mission, she was making only $13.00 per hour. 12 Despite the
wage differential between the positions at Romark and Mission,
when factoring the increased cost of Donlin’s commute to
Romark into her overall compensation, we find that the
positions were substantially equivalent and, therefore, Donlin’s
decision to take a lower-wage job at Mission was reasonable.13

12
Donlin’s wages increased by 3.9% in her second year at
Mission, or up to $13.51 per hour. At that time, Philips
employees received $14.67 per hour as a base salary.
13
Donlin’s temporary position at Philips required a
commute of less than 10 miles each way. By contrast, Romark
was about 32 miles away, resulting in an increased daily
commute of 44 miles round-trip. Donlin then voluntarily chose
to leave Romark because Mission was located 20 miles closer to
her home. The going mileage rate on the federal tax return for
2003 was 36 cents per mile. See Rev. Proc. 2002-61, sec. 5,
2002-2 C.B. 616, 618. Given an additional 44 miles per day
between Philips and Romark, Donlin’s commute was $15.84
more costly per day. Donlin’s transfer to Mission, however,
reduced her commute by 40 miles per day, making it
approximately $14.40 cheaper. As noted above, Donlin earned
about $1.70 less per hour in her first year at Mission compared
to what she was making at Romark and about $1.20 less per
hour in her second year. Therefore, assuming an eight-hour
work day, Donlin was earning at most $13.60 less per day at
Mission than at Romark ($1.70 x 8 hours); after she was given
a raise in her second year at Mission, the difference was just
$9.60 less per day. Both figures are less than the additional cost

30
 Pursuant to our holding in Le, Philips was required, as the
discriminating party, to demonstrate that substantially equivalent
work was available, and that Donlin did not exercise reasonable
diligence to obtain such employment. See Le, 321 F.3d at 407.
Though we review the calculation of back pay for abuse of
discretion, a finding that a Title VII claimant has exercised
reasonable diligence in seeking other suitable employment
following a discriminatory discharge is an issue of fact which,
on appeal, is subject to a “clearly erroneous” standard of review.
Durham Life Ins. Co. v. Evans, 166 F.3d 139, 156 (3d Cir.
1999); F ED R. C IV. P. 52(a). The foregoing analysis illustrates
that the job at Mission constituted a “substantially equivalent”
opportunity as that available at Romark. Donlin should not be
penalized for accepting that opportunity. Accordingly, the
District Court’s finding that Donlin sufficiently mitigated her
damages was not clearly erroneous and the District Court did not
err with regard to this issue.

D.

Philips’s final assignment of error regards the District
Court’s use of an inappropriate comparator to determine the
compensation Donlin would have earned had she been hired by
Philips. In calculating Donlin’s compensatory damages, the
District Court compared the wages she received in her
subsequent employment to what she would have earned had she
been hired at Philips. In estimating what Donlin’s salary would
have been at Philips, the court allowed Donlin to use the wages

to commute.

31
earned by Martha Matusick, a Philips employee with 15 years
tenure, as her basis of comparison. Philips asserts this was
erroneous because Donlin ignored the salaries of the male
employees hired in her stead. We disagree.

We have held that for the purpose of determining liability
in discrimination suits, a plaintiff “cannot selectively choose a
comparator.” Simpson v. Kay Jewelers, 142 F.3d 639, 645 (3d
Cir. 1998). In Simpson, the plaintiff relied solely on one
employee as a comparator in arguing that she was treated less
favorably than her colleagues. Id. at 646. We held that
Simpson’s approach was too narrow and that she “cannot pick
and choose a person she perceives is a valid comparator who
was allegedly treated more favorably, and completely ignore a
significant group of comparators who were treated equally or
less favorably than she.” Id. at 646-47. Though Simpson
concerned comparisons for the purpose of determining liability,
we find that principle applicable in the damages context as well.
Thus, we agree that Donlin could not “pick and choose” a
damages comparator; rather, a Title VII plaintiff must choose
similar employees against whom to compare herself.

Under that principle, we disagree that Matusick was an
inappropriate basis of comparison. Although Matusick was
long-tenured, the record evidence shows that Philips did not
increase its employees’ salaries based on seniority.
Additionally, there was evidence that Donlin and Matusick
worked the same shift and worked similar amounts of overtime,
both of which were key factors affecting compensation. Indeed,
the District Court found as a matter of fact that Matusick was
“an average employee with similar work habits and pension

32
information.” Damages Memorandum at *3. Furthermore, the
nine men Philips hired in lieu of Donlin would not have made
good comparators because of their idiosyncratic employment
histories. Specifically, the record shows that the men had quit,
died, refused overtime, worked on different shifts, or had long
periods of disability. Accordingly, on remand the District Court
may determine Donlin’s compensatory damages by comparing
her to Matusick or any other Philips employee with similar
characteristics.

IV.

Finally, the parties dispute the amount of attorney’s fees
awarded to Donlin as the prevailing party in this case. Donlin
filed a motion for attorney’s fees and costs pursuant to 42
U.S.C. § 2000e-5(k) and Federal Rule of Civil Procedure 54(d),
seeking $79,446, a fee multiplier of 25%, and costs in the
amount of $6,195, for a total of $107,052. The District Court
granted Donlin’s motion in part and denied it in part, awarding
a total of $75,818 in fees and costs. Philips argues that the
award was overly generous, whereas Donlin argues that the
award was not high enough. We review the grant of attorney’s
fees for abuse of discretion. See P.N. v. Clementon Bd. of
Educ., 442 F.3d 848, 852 (3d Cir. 2006).

Philips contends that Donlin was not entitled to attorney’s
fees because she failed to submit sufficient supporting evidence.
See Rode v. Dellaciprete, 892 F.2d 1177, 1183-84 (3d Cir.
1990). Donlin’s submission in this case consisted of a list of
tasks performed by her attorney and his paralegal and a citation
to her attorney’s work in another civil rights case, Potence v.

33
Hazelton Area School District, 357 F.3d 366 (3d Cir. 2004), in
which the court determined that $200 per hour was a reasonable
rate in the relevant market. Although these submissions fall
well short of best practices — which would entail a
comprehensive petition for fees in each case — we do not find
that the District Court abused its discretion by approving the
$200 hourly rate.

On the other hand, we summarily reject Donlin’s
counsel’s attempt to extract an additional $25 per hour without
providing additional documentation. The party seeking an
award of fees must justify the hourly rates of counsel and Donlin
has failed to do so. See Maldonado v. Houstoun, 256 F.3d 181,
184-85 (3d Cir. 2001). Additionally, the District Court properly
rejected Donlin’s request for a fee multiplier in light of her
attorney’s self-proclaimed “excellent result.” Such multipliers
are appropriate “only in very rare circumstances where the
attorney’s work is so superior and outstanding that it far exceeds
the expectations of clients and normal levels of competence.”
Rode, 892 F.2d at 1184. The party seeking the upward
adjustment has the duty to present specific evidence as to what
made the result so “outstanding” and why the ordinary amount
requested was “unreasonable.” See Pennsylvania v. Del. Valley
Citizens Council for Clean Air, 478 U.S. 546, 567-68 (1986).
Here, there is no evidence that Donlin’s attorney did anything
more than was required to win the case. Therefore, the District
Court did not abuse its discretion in denying Donlin’s request
for a multiplier.

Accordingly, we will affirm the District Court’s award of
attorney’s fees.

34
 V.

In sum, we find no reversible error regarding the District
Court’s instructions to the jury, so we will affirm the judgment
on liability. Nor was the District Court’s judgment regarding
attorney’s fees erroneous. We find reversible error, however,
regarding the District Court’s admission of testimony that
required specialized or technical expertise. This improper
testimony affected the District Court’s well-reasoned judgment
with regard to mitigation as well as the amount of damages.
Accordingly, we will vacate the judgment and remand for a new
trial on damages

35