Two plaintiffs win at trial and, on appeal, achieve differing results. In the First Circuit, a Title VII plaintiff improves on her win by persuading the court (with an assist from the EEOC as amicus) that the number of employees in the “current or preceding calendar year” – for purposes of setting the damage cap under 42 U.S.C. § 1981a(b)(3) – is based on the number of employees at the time of the act of discrimination, rather than at the time of trial. In the Fifth Circuit, the employee keeps her Equal Pay Act award, but loses a state statutory wage claim.
Hernández-Miranda v. Empresas Díaz Massó, Inc., No. 10-1639 (1st Cir. June 29, 2011): In this Title VII case, the jury awarded plaintiff $300,000 in compensatory damages for sex harassment. The district court, post-trial, considered which of the Title VII caps applied to this award. There was testimony that the employer, at the time of the harassment (centered around 2004), employed some 250 persons. Post-trial, the employer filed an affidavit that at the time of judgment it had only 25 employees. Under Title VII, the larger number of employees would have resulted in a $200,000 cap, while the smaller number would garner only $50,000. The district court assumed that the calendar-year of judgment applied and reduced the verdict to $50,000.
The First Circuit reverses. The court notes that the Fourth and Fifth Circuits (and, by implication, the Seventh Circuit) hold that the “current” calendar year under § 1981a(b)(3) is the year when the discriminatory acts occur. This lines up with 42 U.S.C. § 2000e(b), which defines an “employer” under Title VII as a person with fifteen or more employees “in each of twenty or more calendar weeks in the current or preceding calendar year.” The panel observes that “[t]he fact that Congress used the same terminology in the 1991 amendments as in § 2000e(b) makes it quite likely, under normal canons of statutory interpretation, that it intended to adopt the year of discrimination as the ‘current’ year in § 1981a(b)(3).”
The panel rejects the employer’s proffer of a “plain” reading of “current” as meaning the date of judgment. “On its face, the damage caps provision does not resolve this question; in our view, it can be reasonably construed in different ways. To best effectuate congressional intent, we look both to the context of the larger statutory scheme and to how the phrase ‘current or preceding calendar year’ had been defined elsewhere in the statutory scheme at the time Congress enacted the 1991 amendments to Title VII.”
The panel also notes that setting the number at the time of the discrimination achieves “[c]larity and certainty of potential liability” that “allows for both sides to set realistic litigation budgets and evaluate whether cases are worth bringing and defending. Such clarity and certainty allows businesses to set adequate reserves, disclose those reserves in annual reports as necessary, and make assessments about whether and how much to insure against the risk of litigation.”
Finally, applying the cap, the panel holds that it is the employer’s burden to proffer evidence about the relevant number of employees, and that failing to present evidence of the relevant number, defendant forfeited this defense.
King v. University Healthcare System, L.C., No. 09-30794 (5th Cir. June 28, 2011): King was an anesthesiologist for Tulane University Hospital. The Equal Pay Act claim – and a parallel count for breach of the Louisiana Wage Payment Statute – came down in essence to a $33,000 contract renewal bonus that was paid to a male doctor but not to the plaintiff. (There was a separate contract claim, and a Title VII claim too, which both fizzled out and will not be further discussed here.) The bonus was meant, in part, to compensate doctors for hours worked in the wake of the post-Katrina flooding.
The employer claimed that the plaintiff lost the bonus because she would not sign a retention agreement; the plaintiff responded that the male doctor also did not sign the agreement. A jury awarded her a verdict for $32,700 under the EPA (the bonus amount, minus a $300 payment that the plaintiff did receive), which the district court then doubled because the employer failed to establish a good-faith defense. The jury also awarded the plaintiff the same damages on the state-law claim, which resulted in a court-awarded penalty of $75,000 over the actual and liquidated damages.
After resolving some ancillary evidence and discovery issues – affirming all of the district court’s rulings – the Fifth Circuit panel reviews the two winning claims for sufficiency of the evidence.
On the wage-payment claim, the panel reverses and orders entry of a judgment to the employer, holding that there was no enforceable agreement to pay the plaintiff for her extra work.
But on the EPA claim, the jury verdict is upheld. The panel finds sufficient evidence that both doctors did equal work. It also holds that the employer did not establish, as a matter of law, the affirmative defense of “any other factor other than sex.” “UHS’s evidence supporting its affirmative defense consisted chiefly of testimony of UHS employees who stated that [the male doctor] was paid the bonus because they believed he was returning. The jury’s broad authority permitted it to conclude that the testimony offered by UHS was not credible and that UHS simply failed to carry its burden.” The panel also affirms the district court’s finding that the employer did not meet its burden of “good faith” and that an award of liquidated damages was mandatory. The case is remanded for a recalculation of attorneys fees.