                             UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished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Unpublished opinions are not binding precedent in this circuit.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

                                                3
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



                                             4
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.



                                                7
           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).



                                                    9
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).



                                   10
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.

                                   11
                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).



                                              12
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




                                        13
