[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-14845 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 31, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:00-cv-02437-ECS
DONALD E. GRYDER,
Plaintiff-Appellant,
versus
L. FRED DENNIN, III,
FRA Regional Director Atlanta, et al.,
Defendants,
SECRETARY, DEPARTMENT OF TRANSPORTATION,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(May 31, 2011)
Before TJOFLAT, WILSON and BLACK, Circuit Judges.
PER CURIAM:
This is a Title VII case. See 42 U.S.C. § 2000e et seq. Appellant is a
former employee of the Federal Railroad Administration (“FRA”), an agency of
the Department of Transportation. In 2003, a jury, in an advisory verdict, awarded
him $250,000 for lost wages and benefits on his claim that, in 1997, the FRA
retaliated against him, in violation of Title VII, by terminating his employment as
a Motive Power & Equipment Inspector for filing complaints with the Equal
Employment Opportunity Commission. The district court subsequently found that
the FRA would have discharged appellant in the absence of any retaliatory bias
and declined to award equitable relief. Appellant appealed, and a panel of this
court vacated the decision and remanded the case for the award of equitable relief.
Cryder v. Norman Y. Mineta, 143 Fed.Appx. 297 (11th Cir. 2005)(Table).
On remand, the district court, in a judgment entered on September 15, 2010,
ordered the Secretary to reinstate appellant to his previous position or an
equivalent position and awarded appellant back pay in the sum of $923,656.
Appellant now appeals the district court’s judgment, arguing that the court abused
its discretion by “re-examining the jury verdict,” failing to properly calculate his
claim for back pay, reducing the award by $20,000.00 per year based on his
obtaining part-time work after his termination, and failing to address his claims for
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overtime, annual bonuses, annual leave, sick leave, contributions to the
defendant’s Thrift Savings Plan (“TSP”), and a “gross up” for the tax
consequences of receiving a lump sum payment. He also argues that the court
failed to give full relief by reinstating him to his previous position instead of
ordering that he be promoted to a “senior level[] position.” We find no merit in
his appeal and therefore affirm.
“The purpose of Title VII relief is to ‘make whole’ victims of unlawful
discrimination.” Virgo v. Riviera Beach Assocs., Ltd., 30 F.3d 1350, 1363 (11th
Cir. 1994) (quotation omitted). The statute vests “broad equitable discretion” in a
federal court to fashion the “most complete relief possible.” Id. “Appropriately,
we review the award of damages in a Title VII case for an abuse of discretion.”
Id. “A district court abuses its discretion if it applies an incorrect legal standard,
applies the law in an unreasonable or incorrect manner, follows improper
procedures in making a determination, or makes findings of fact that are clearly
erroneous.” Brown v. Alabama Dep’t of Transp., 597 F.3d 1160, 1173 (11th Cir.
2010).
Title VII provides broadly that:
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 . . . order such affirmative action as may
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be appropriate, which may include, . . . reinstatement or hiring of
employees, with or without back pay . . ., or any other equitable relief
as the court deems appropriate. . . . Interim earnings or amounts
earnable with reasonable diligence by the person or persons
discriminated against shall operate to reduce the back pay otherwise
allowable.
42 U.S.C. § 2000e-5(g)(1).
“Successful Title VII claimants . . . are presumptively entitled to back pay.”
Latham v. Dep’t of Children & Youth Servs., 172 F.3d 786, 794 (11th Cir. 1999).
Nevertheless, backpay is not “an automatic or mandatory remedy; like all other
remedies under the Act, it is one which the courts ‘may’ invoke.” Albemarle
Paper Co. v. Moody, 422 U.S. 405, 415-16, 95 S.Ct. 2362, 2370-71, 45 L.Ed. 2d
280 (1975). “Back pay is the difference between the actual wages earned and the
wages the individual would have earned in the position that, but for the
discrimination, the individual would have attained.” Akouri v. Florida Dep’t of
Transp., 408 F.3d 1338, 1343 (11th Cir. 2005) (quotation omitted). “Unrealistic
exactitude is not required as the back-pay calculation may be based on just and
reasonable inference of the missing or imprecise figure.” Id. (quotation omitted).
However, the plaintiff must present some evidence from which the finder of fact
can begin a reasonable calculation of a back-pay award. Id. at 1344 (holding that
a successful Title VII plaintiff was entitled only to nominal damages due to his
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failure to provide “any evidence whatsoever of his actual earnings while
employed”).
Additionally, “Title VII requires plaintiffs to mitigate their damages through
reasonably diligent efforts to seek employment that is substantially equivalent.”
Latham, 172 F.3d at 794. “[T]he burden of proving lack of diligence is on the
employer.” EEOC v. Massey Yardley Chrysler Plymouth, 117 F.3d 1244, 1251-52
(11th Cir. 1997) (in the ADEA context). “If the claimant decides to go into a
dissimilar line of work, or to accept a demotion, his earnings must be deducted
from any eventual backpay award.” Ford Motor Co. v. EEOC, 458 U.S. 219, 232
n.16, 102 S.Ct. 3057, 3066 n.16, 73 L.Ed.2d 721 (1982).
“In addition to back pay, prevailing Title VII plaintiffs are presumptively
entitled to either reinstatement or front pay.” EEOC v. W&O, Inc., 213 F.3d 600,
619 (11th Cir. 2000). Although we presume that reinstatement is the appropriate
remedy in a wrongful discharge case, the district court may award front pay in lieu
of reinstatement if “extenuating circumstances warrant such relief.” Id.
The district court did not abuse its considerable discretion by awarding
appellant $923,656.08 in back pay and deducting $20,000.00 per year in
mitigation for what he could have earned by working part time after his
termination. Although he challenges the denial of TSP contributions, annual
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leave, the “gross up” for tax consequences, overtime, performance bonuses, and
sick leave, he presented only his own speculative testimony and calculations to
support this relief. Furthermore, the district court reasonably found that he could
have continued working at the part-time jobs he obtained in 1999 and 2000, and
the court reasonably reduced his back-pay award by the amount he could have
earned in alternative employment after his termination. See Ford Motor Co., 458
U.S. at 235-37, 102 S.Ct. at 3067-68 (requiring an award of back pay past the time
the victim has found other employment would place the claimant in a better
position than they were in before the discrimination occurred). Finally, because
appellant failed to present any evidence that he was likely to have been promoted,
the court did not abuse its discretion by ordering the Secretary to reinstate him to
the same position he occupied prior to his termination.
AFFIRMED.
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