The original Title VII was centered on injunctive relief, principally putting protected-class employees to work. So this Fifth Circuit case is a valuable one, reminding us of the roots of the law and why reinstatement remains the presumptive remedy in discrimination cases.
Bogan v. MTD Consumer Group, Inc., No. 17-60697 (5th Cir. Mar. 26, 2019): As the panel opinion notes, “[t]his case presents an unusual situation in which no prospective (or meaningful retrospective) relief was awarded after a finding of discrimination.”
A Black woman machinist was fired, supposedly for leaving the workplace during lunch breaks (to take outside classes) and returning late. The record showed that other employees who “‘routinely’ took lunch breaks that lasted longer than thirty minutes” kept their jobs. After a four-day trial, a jury found the employer liable for race and sex discrimination but only “awarded her $1, perhaps because of a jury instruction on the consequences of a failure to mitigate, an argument that [defendant] MTD pushed.”
On post-trial motions, the judge denied MTD judgment as a matter of law, while it also rejected any prospective relief – reinstatement or front pay – on findings that a return to work was impracticable and that plaintiff failed to mitigate by looking actively for alternative work. The plaintiff took an appeal from the latter order.
The Fifth Circuit vacates and remands. It commences with the standard (if seldom recognized) formula that “[r]einstatement is the preferred equitable remedy under Title VII,” because it requires less in the way of speculation than front pay – replacing future income that might have been earned – and “restores not just the financial benefits of a job but also the ‘psychological benefits. of work.”
It then holds that two of the four reasons the court gave for denying reinstatement were contrary to the record and thus clear error. It upholds the district court’s findings that her position no longer “exists as it did during her employment” (thus requiring training on new machines) and “that Bogan had intended to change careers to social work.” But it finds insufficient basis in the record to support the findings that (1) it would have terminated plaintiff anyway, and (2) thre was “discord between the parties” that would prevent a successful return to work.
On (1), the panel holds that the court’s finding is directly contradicted by the jury’s denial of the employer’s same-decision affirmative defense. The jury was instructed that “[i]f you find by a preponderance of the evidence that MTD Consumer Group Inc has proved it would have terminated Ms. Bogan’s employment even if it had not considered her race and/or gender, you must find for the Defendant, MTD Consumer Group Inc, and go no further in your deliberations.” Under Seventh Amendment principles, a court may not countermand the jury’s findings at the equitable remedy phase.
On (2), while such discord may be pertinent to the viability of reinstatement, here “[t]he district court did not find that the relationship between Bogan and MTD rose to the level at which it was irreparably damaged and exceeded the antagonism that normally results from trials.” Further, the argument that the employee bypassed the company’s internal dispute-resolution process did not support the finding. Indeed, “it is the jury’s finding of discrimination that contradicted the employee review process, so allowing that disagreement to defeat reinstatement runs the risk we have already discussed of not honoring the jury’s verdict.”
Thus the case is remanded back to the district court to make further findings on prospective relief.