UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1318
EILEEN M. HYLIND,
Plaintiff - Appellant,
v.
XEROX CORPORATION,
Defendant – Appellee,
LAURENCE KAYE,
Intervenor – Appellee.
-------------------------------------
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Amicus Supporting Appellant.
No. 11-1320
EILEEN M. HYLIND,
Plaintiff - Appellee,
v.
XEROX CORPORATION,
Defendant – Appellant,
LAURENCE KAYE,
Intervenor – Appellee.
-------------------------------------
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Amicus Supporting Appellee.
Appeals from the United States District Court for the District
of Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:03-cv-00116-PJM)
Submitted: January 10, 2012 Decided: June 6, 2012
Before KEENAN, WYNN, and DIAZ, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Eileen M. Hylind, Appellant/Cross-Appellee Pro Se. Elena D.
Marcuss, MCGUIREWOODS, LLP, Baltimore, Maryland, for
Appellee/Cross-Appellant. Laurence Samuel Kaye, Rockville,
Maryland, for Intervenor-Appellee. Anne Noel Occhialino, U.S.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for
Amicus Supporting Appellant/Cross-Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
In this case, Eileen M. Hylind contended that her
employer, Xerox Corporation, discriminated against her on the
basis of her gender. A jury agreed with her on certain of her
claims, and Hylind was eventually awarded approximately $1.2
million in damages. Both Hylind and Xerox now appeal from
various aspects of the proceedings below. For the reasons that
follow, we affirm in part, vacate in part, and remand.
I. Xerox’s Cross-Appeal
We begin with the arguments that Xerox raises in its
cross-appeal. Xerox first claims that the district court erred
in denying its post-trial motion for judgment as a matter of law
on each of Hylind’s claims relating to her reassignment to
certain sales accounts associated with Giant Food. Our review
is de novo, and the district court’s judgment will be upheld if
a reasonable jury, viewing the evidence in the light most
favorable to the nonmovant, could have reasonably reached the
conclusion adopted by the jury in this case. Dennis v. Columbia
Colleton Med. Center, Inc., 290 F.3d 639, 644-45 (4th Cir.
2002). Xerox relies on Delaware State College v. Ricks, 449
U.S. 250, 258 (1980), to argue that Hylind’s discrimination
claims accrued prior to the limitations period, but our review
of the record persuades us otherwise. At trial, the jury heard
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a substantial amount of evidence suggesting that Hylind did not
receive “final and unequivocal notice” of the account
reassignments until a time that fell within the limitations
period. English v. Whitfield, 858 F.2d 957, 961 (4th Cir.
1988). Thus, to the extent that Xerox contends that Hylind
received unequivocal notice prior to the limitations period, its
position simply attacks the jury’s factual finding to the
contrary. Accordingly, the district court properly denied
Xerox’s motion for judgment as a matter of law.
Xerox also contends that the district court improperly
denied its motion for a new trial, claiming irremediable unfair
prejudice stemming from the introduction at trial of several
photographs of partially nude women. The district court’s
denial of a motion for new trial is reviewed for an abuse of
discretion. Nichols v. Ashland Hosp. Corp., 251 F.3d 496, 500
(4th Cir. 2001). A district court should grant a new trial if
“(1) the verdict is against the clear weight of the evidence, or
(2) is based upon evidence which is false, or (3) will result in
a miscarriage of justice, even though there may be substantial
evidence which would prevent the direction of a verdict.”
Knussman v. Maryland, 272 F.3d 625, 639 (4th Cir. 2001)
(internal citation omitted). Under the circumstances of this
case, we conclude that the photographs were not so prejudicial
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that the district court’s denial of Xerox’s motion was an abuse
of discretion. See id.
Next, Xerox argues that the district court erred in
applying Maryland’s 6% prejudgment interest rate to Hylind’s
back pay award because the actual rate of inflation during the
years in question hovered around 2.5%. Xerox’s argument is
without merit. “The rate of pre-judgment interest for cases
involving federal questions is a matter left to the discretion
of the district court.” Quesinberry v. Life Ins. Co. of N. Am.,
987 F.2d 1017, 1031 (4th Cir. 1993) (en banc). “In determining
the rate of prejudgment interest, the district court is not
bound by state law. That does not mean, however, that the
district court may not in its discretion choose to apply the
interest rate provided for by state law.” EEOC v. Liggett &
Myers Inc., 690 F.2d 1072, 1074 (4th Cir. 1982). Despite
Xerox’s assertions that an empirical economic analysis of the
years in question would dictate a lower rate of interest, it was
not an abuse of discretion for the district court to disagree.
Finally, Xerox contends that the district court erred
in granting the motion to intervene filed by Laurence Kaye, an
attorney who represented Hylind through trial and was discharged
by her while the damages awards were being litigated before the
district court. The district court’s decision on a motion to
intervene is reviewed for an abuse of discretion. Safety-Kleen,
5
Inc. v. Wyche, 274 F.3d 846, 867 (4th Cir. 2001). Some courts
have expressed skepticism that a former attorney of a client may
intervene as of right in his client’s suit to protect his
interest in a potential award of attorney’s fees. See Butler,
Fitzgerald & Potter v. Sequa Corp., 250 F.3d 171, 176-79 (2d
Cir. 2001) (discussing, among other cases, Gaines v. Dixie
Carriers, Inc., 434 F.2d 52, 54 (5th Cir. 1970) (per curiam),
which permitted intervention as of right). We need not decide
that issue in the present case. Instead, pursuant to Fed. R.
Civ. P. 24(b)(2), a district court may permit an applicant to
intervene who “has a claim or defense that shares with the main
action a common question of law or fact.” On this basis, we
conclude that the district court did not commit an abuse of
discretion in granting Kaye’s motion to intervene. See Venegas
v. Skaggs, 867 F.2d 527, 529-31 (9th Cir. 1989), aff’d on other
grounds sub. nom. Venegas v. Mitchell, 495 U.S. 82 (1990).
II. Hylind’s Appeal
Hylind also raises numerous issues on appeal, which we
address in turn. First, Hylind asserts that the district court
improperly dismissed her quid pro quo and hostile environment
claims as barred by the statute of limitations. To the extent
that Hylind’s hostile work environment claim was based on the
alleged sexual misconduct of her supervisors prior to 1992, we
6
agree with the district court that her claim was time barred.
See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 118
(2002). Moreover, to the extent that Hylind’s quid pro quo and
hostile work environment claims were based on acts that arguably
fell within the applicable 300-day statutory period to bring
Title VII claims, 42 U.S.C. § 2000e-5(e)(1), Hylind has not
demonstrated that her recovery could be any different if she had
proceeded, and was ultimately successful on, a quid pro quo or
hostile work environment theory.
Here, the jury returned a verdict in favor of Hylind
on two claims, awarding $1,000,000 in compensatory damages on
her sexual discrimination claim, and $500,000 in compensatory
damages on her retaliation claim. Thereafter, the district
court reduced the jury’s award of compensatory damages on
Hylind’s successful claims to the $300,000 statutory cap. Even
if other related Title VII claims brought by Hylind against
Xerox ultimately were successful, such claims also would have
been subject to the statutory cap. 42 U.S.C. § 1981a(b)(3)(D);
Black v. Pan Am. Labs., LLC, 646 F.3d 254, 264 (5th Cir. 2011)
(adopting the reasoning of “[o]ther courts [that] have uniformly
held that Title VII’s damages cap applies to each party in an
action, not to each claim” (citing cases)). Thus, we will not
disturb the district court’s judgment on this issue.
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Hylind also contends that the district court erred in
refusing to permit her to amend her complaint to add additional
state law and federal claims, which would have enabled her to
evade the statutory damage cap on her Title VII claims. We
disagree with Hylind and hold that the district court’s denial
of her motion was not an abuse of discretion. Equal Rights
Center v. Niles Bolton Assocs., 602 F.3d 597, 603 (4th Cir.),
cert. denied, 131 S. Ct. 504 (2010); Laber v. Harvey, 438 F.3d
404, 426 (4th Cir. 2006) (en banc).
Next, Hylind contests the district court’s denial of
her post-trial motion for judgment as a matter of law on her
Title VII sex discrimination and retaliation claims involving
her removal from an account associated with Vitro, one of
Xerox’s customers. Hylind argues that she only needed to show
that sex was a motivating factor for the employer’s decision to
remove her from the Vitro account. However, while the district
court recognized that Hylind was entitled to a motivating factor
instruction under a mixed-motive framework and offered her
counsel the opportunity to proceed on that basis, Hylind’s
counsel instead opted to proceed under the pretext framework in
order to prevent Xerox from raising a particular affirmative
8
defense. 1 We decline at this stage of the litigation to relieve
Hylind of the consequences of her tactical decision at trial.
And, in any event, Hylind has not demonstrated how these claims,
if ultimately successful, might have resulted in a different
recovery. 42 U.S.C. § 1981a(b)(3)(D); Black, 646 F.3d at 264.
Hylind also raises several challenges to the damages
determinations made by the district court. “A court’s
calculation of damages is a finding of fact and therefore is
reviewable only for clear error, but to the extent those
calculations were influenced by legal error, review is de novo.”
Universal Furniture Intern., Inc. v. Collezione Europa USA,
Inc., 618 F.3d 417, 427 (4th Cir. 2010).
Hylind first complains that the district court’s
determinations as to the duration and rate of back pay
improperly intruded on the fact-finding duties of the jury.
However, the determination of back pay is an equitable matter
for the judge, not the jury. See Duke v. Uniroyal Inc., 928
F.2d 1413, 1424 (4th Cir. 1991) (holding that an award of
1
In mixed-motive cases, if the employer demonstrates that
it would have taken the same action absent the impermissible
motivating factor, “the employer has a limited affirmative
defense that does not absolve it of liability, but restricts the
remedies available to a plaintiff . . . [only to] declaratory
relief, certain types of injunctive relief, and attorney’s fees
and costs.” Desert Palace, Inc. v. Costa, 539 U.S. 90, 94
(2003).
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compensation for future lost earnings, or “front pay,” is an
equitable matter for the court, not the jury); Lutz v. Glendale
Union High Sch., 403 F.3d 1061, 1069 (9th Cir. 2005) (holding
that an award of back pay under Title VII “remains an equitable
remedy to be awarded by the district court in its discretion”);
Pals v. Schepel Buick & GMC Truck, Inc., 220 F.3d 495, 500-01
(7th Cir. 2000) (same, with respect to back pay and front pay).
Hylind also has not pointed to any other factor suggesting that
the district court abused its discretion regarding the duration
of the back pay it awarded her, or with respect to its decision
to deny her front pay. See Universal Furniture, 618 F.3d at
427; Brady v. Thurston Motor Lines, Inc., 753 F.2d 1269, 1278
(4th Cir. 1985). Accordingly, we affirm the district court’s
conclusions as to the duration of the back pay award. 2
By contrast, we conclude that Hylind’s attack on other
aspects of the back pay award holds more merit. In particular,
Hylind argues that the district court erred in offsetting
2
Hylind also urges that the Lilly Ledbetter Fair Pay Act of
2009 (the “FPA”) permits her to recover damages for Xerox’s much
earlier employment decisions because Xerox’s conduct exhibited a
pattern of “discriminatory compensation or other practice” such
that the statute of limitations for all of its conduct runs from
the last discriminatory act it took. See 42 U.S.C. § 2000e-
5(e)(3)(A) (West Supp. 2011). We agree with Xerox that the FPA
is inapposite to this case. See Noel v. Boeing Co., 622 F.3d
266, 274 (3d Cir. 2010); Schuler v. PricewaterhouseCoopers, LLP,
595 F.3d 370, 375 (D.C. Cir. 2010).
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certain disability payments received by Hylind from her back pay
award. In this respect, Hylind asserts that the district court
misapplied the collateral source rule, which provides that
“compensation from a collateral source should be disregarded in
assessing . . . damages.” Sloas v. CSX Transp. Inc., 616 F.3d
380, 389 (4th Cir. 2010). The defendant bears the burden of
demonstrating that it is entitled to an offset. Id.
Relying on Szedlock v. Tenet, 61 F. App’x 88, 93 (4th
Cir. 2003) (unpublished) (per curiam), and Fariss v. Lynchburg
Foundry, 769 F.2d 958, 966 (4th Cir. 1985), for the proposition
that collateral funds are “those received from a source distinct
from the employer,” the district court ruled that the payments
Hylind received under the disability plan were not collateral
largely because the plan was a benefit that Hylind received as
an employee of Xerox and there was some indication that Xerox
contributed to the payments.
While the parties’ motions pertaining to damages were
pending before the district court, however, we held that the
mere fact “[t]hat a benefit comes from the defendant . . . does
not itself preclude the possibility that it is from a collateral
source.” Sloas, 616 F.3d at 389. Instead, a plaintiff “may
receive benefits from the defendant himself which, because of
their nature, are not considered double compensation for the
same injury but are deemed collateral.” Id. at 390.
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According to Sloas, if the defendant “provides a
benefit to the plaintiff specifically to compensate him for his
injury, the benefit does not constitute a collateral source,”
and the payments may be offset against the damage award. Id.
By contrast, a payment is from a collateral source and should
not be offset if the defendant “does not provide the benefit to
the plaintiff as compensation for his or her injury.” Id.
Under Sloas, in other words, a benefit provided by the defendant
is from a collateral source “unless it results from payments
made by the employer in order to indemnify itself against
liability.” Id. Accord Davis v. Odeco, Inc., 18 F.3d 1237,
1244 (5th Cir. 1994).
Although Xerox claims that Sloas is inapplicable to
Hylind’s case, we disagree. Accordingly, we vacate the damages
award entered in this case and remand to the district court for
it to re-assess its offset determinations in light of Sloas. 3
We have carefully reviewed each of the other arguments
asserted by Hylind, including her contentions regarding the
3
We emphasize that we hold only that Sloas is applicable to
the analysis of this case; we take no view as to whether Sloas,
as applied to Hylind’s disability payments, directs that they be
offset from her back pay award. We leave that determination in
the first instance to the district court upon further
development of the record. See generally Sloas, 616 F.3d at
390; Phillips, 953 F.2d at 930; Davis, 18 F.3d at 1244; EEOC v.
O’Grady, 857 F.2d 383, 391 (7th Cir. 1988).
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district court’s denial of injunctive relief, failure to
structure her damages award to allow her to realize certain tax
advantages, rulings on costs, and denial of her post-trial
motion for judgment as a matter of law with respect to punitive
damages. Our review of the record convinces us that each of
Hylind’s arguments is without merit.
Accordingly, we affirm the judgment of the district
court in each respect, except for its decision to offset
Hylind’s disability payments from her back pay award. On that
issue, we vacate the district court’s judgment and remand the
case for entry of a damages award consonant with our holding in
Sloas. We also deny Hylind’s pending motion to reconsider the
court’s order granting leave for Xerox to file a supplemental
appendix and her pending motion to supplement the record with
certain medical information. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the material before the Court and argument will not aid the
decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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