United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree, United States District Judge
matter is before the court on pro se plaintiff Angelica
Hale's Brief Regarding Economic Damages (Doc. 150).
Defendant Emporia State University (“ESU”) has
responded (Doc. 153).
16, 2019, the court entered a Memorandum and Order finding
for Ms. Hale on her Title VII retaliation claim (Doc. 149-1).
The court awarded Ms. Hale nominal damages of $1 because the
court lacked sufficient evidence to determine the appropriate
relief. Doc. 149-1 at 23. The court directed the
parties to submit briefing on front pay, reinstatement, and
back pay. Id.
VII permits the court to award a successful plaintiff any
appropriate relief, including reinstatement, back pay,
“‘or any other equitable relief'” that
the court deems appropriate. Daneshvar v. Graphic Tech.,
Inc., 40 F.Supp.2d 1225, 1239 (D. Kan. 1998) (quoting 42
U.S.C. § 2000e-5(g)). “District courts possess
considerable discretion to devise appropriate remedies for
Title VII violations.” Zisumbo v. Ogden Reg'l
Med. Ctr., 801 F.3d 1185, 1203 (10th Cir. 2015)
(citations omitted). But, the record must support the
district court's damages award. Davoll v. Webb,
194 F.3d 1116, 1145 (10th Cir. 1999). For reasons explained
below, the court defers ruling on Ms. Hale's request for
economic damages and orders an evidentiary hearing on the
front pay and back pay awards.
pay awards generally cover the time up until the date of
judgment. Daneshvar, 40 F.Supp.2d at 1239 (citing
Daniel v. Loveridge, 32 F.3d 1472, 1477 (10th Cir.
1994)). But, plaintiff has an obligation to use reasonable
methods to mitigate her damages. Id. (citing 42
U.S.C. § 2000e-5(g)(1)). “This mitigation usually
takes the form of replacement employment.” Leidel
v. Ameripride Servs., Inc., 276 F.Supp.2d 1138, 1142 (D.
Kan. 2003) (citing 42 U.S.C. § 2000e-5(g)(1)). The
employer shoulders the burden of showing a lack of reasonable
diligence. Id. (citing EEOC v. Sandia
Corp., 639 F.2d 600, 627 (10th Cir. 1980)). The employer
can meet its burden by showing, “‘(1) that the
damage suffered by plaintiff could have been avoided,
i.e., that there were suitable positions which
plaintiff could have discovered and for which [s]he was
qualified; and (2) that plaintiff failed to use reasonable
care and diligence in seeking such a position.'”
Id. (quoting Sandia, 639 F.2d at 627).
Hale requests back pay of $362, 077.06, plus interest. Doc.
150 at 9. She bases her calculation on her projected
salary-had ESU employed her as marketing coordinator-from
2015 to 2019. Doc. 150-1 at 30. She asserts that ESU had
promised her the position for one year, at an annual salary
of $56, 100. Id. She then applied a 34% increase to
the salary to account for benefits, bringing the total amount
for the first year to $84, 900. Id. For the next
year (the 2016-17 academic year), she calculated a total
amount of $86, 173.50, based on a projected 1.5% annual
raise. Id. She predicts that she would have
completed her bachelor's degree after two years, raising
her total compensation to $94, 790.85 for the 2017-18
academic year. Id. Finally, she projects
compensation of $96, 212.71 in 2018-19. Id.
argues there is no evidence in the record supporting Ms.
Hale's assumptions and calculations. Doc. 153 at 3. The
only evidence in the record, ESU argues, are copies of Ms.
Hale's three temporary appointments. Id. at 4.
Ms. Hale's third temporary appointment was for a period
of 10 weeks at a total salary of $8, 888.90. Id. She
resigned three weeks before the end of that appointment.
Id. So, ESU concedes, Ms. Hale could claim $2,
6667.67 as back pay for those three weeks. Id. ESU
asserts that otherwise, the record contains no evidence
supporting a back pay award of $362, 077.06. Id. at
court agrees with ESU. No. evidence in the record supports
Ms. Hale's calculations. It is true that Ms. Hale's
brief asserts ESU had promised her the marketing coordinator
position at an annual salary of $56, 100. But that assertion
is not evidence. Also, her calculations assume that she would
have received that salary and remained in the position until
now, completed her bachelor's degree, and received
contends that the evidence shows Ms. Hale has failed to
mitigate her back pay damages. Exhibit A shows Ms. Hale's
email inbox containing job-related emails, but provides no
information about what jobs Ms. Hale actually applied for, or
the result of those job applications. Doc. 150-1 at 2-15. Ms.
Hale's conclusory assertions that she was unemployable
from 2015 to present-and that she is thus entitled to a
salary, benefits, and raises she might have earned at
ESU-doesn't provide any evidence to support findings
justifying back pay.
Hale did not request an evidentiary hearing on the
matter. But, since the court cannot award back pay
without evidence on Ms. Hale's claimed damages and her
mitigation efforts, the court reserves its ruling. And, the
court orders an evidentiary hearing on the matter.