     Case: 15-30948      Document: 00513586039         Page: 1    Date Filed: 07/11/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals

                                      No. 15-30948
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                             July 11, 2016

APRIL OVERMAN,                                                              Lyle W. Cayce
                                                                                 Clerk
              Plaintiff - Appellee

v.

CITY OF EAST BATON ROUGE; MELVIN "SKIP" HOLDEN, Mayor,

              Defendants - Appellants




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:13-CV-614


Before KING, JOLLY, and ELROD, Circuit Judges.
PER CURIAM:*
       The plaintiff, April Overman, filed this action against the city of Baton
Rouge, Louisiana, and Mayor Melvin “Skip” Holden, in his official capacity,
under Title VII of the Civil Rights Act of 1964, and the Louisiana Employment
Discrimination Law (“LEDL”). Overman alleges that the defendants chose not
to hire her as the Baton Rouge police chief because she is a woman. After a
bench trial, the district court rendered judgment for Overman. The defendants


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 15-30948
appeal the judgment, arguing (1) that the district court erred in finding that
Overman successfully rebutted the defendants’ proffered nondiscriminatory
reasons for refusing to hire her; and (2) that the district court erred in finding
that, following the defendants’ decision not to hire her, Overman undertook
reasonable efforts to mitigate her damages.
      For the reasons that follow, we affirm the district court’s finding of
liability under Title VII. We, however, vacate the district court’s award of
damages and remand for reconsideration in the light of this opinion.
                                        I.
      Overman is a career law enforcement officer. From 1985 to 2010, she
worked for the New Orleans Police Department (“NOPD”). Overman started
as a patrol officer, and was promoted to narcotics detective in 1987. In 1991,
Overman was promoted to her first supervisory position in the NOPD, when
she became a sergeant. Overman was promoted to lieutenant in 2004, and
captain in 2005, which is the rank she held until she retired from the NOPD
in 2010. Before joining the NOPD, Overman earned a bachelor’s degree in
sociology and a juris doctorate from Tulane University; she also received a
master’s degree in sociology from Tulane University while working at the
NOPD.
      In early 2011, Overman applied, tested, and interviewed for the position
of police chief for the city of Baton Rouge, Louisiana. Overman received the
highest score among all thirty applicants on the civil service police chief
examination. A committee, appointed by Mayor Holden and consisting of local
business leaders, community figures, and government officials, interviewed
Overman and ten other candidates—all of them male—in a group interview
format. The committee ranked Overman as one of its top five candidates.
These candidates were then referred to a smaller, five-member committee,
which included Mayor Holden, for further consideration. Each candidate was
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                                    No. 15-30948
interviewed separately by the small committee. After the small committee
interviews, Mayor Holden announced that he had selected another candidate,
Dewayne White, as the new police chief.
      White started his law enforcement career as a traffic and patrol officer
at the Baton Rouge Police Department in 1983. In 1990, he left the Baton
Rouge Police Department to become a state trooper with the Louisiana
Department of Public Safety (“LDPS”).            White was promoted to his first
supervisory position in 1998, when he became a unit supervisor of the weights
and standards department at the LDPS. White was thereafter promoted to the
rank of captain, then major, within the LDPS’s emergency services unit, where
he supervised matters related to environmental safety and hazardous
materials. White held this position until he became the new Baton Rouge
Police Chief. White has a high school diploma, and recorded the eighteenth
highest score on the civil service exam administered to all thirty applicants for
the police chief position.
      In September 2013, Overman filed suit under Title VII and the LEDL,
alleging that the defendants had discriminated against her during the hiring
process on the basis of her sex. The parties consented to try this case before a
magistrate judge, and waived a jury trial. A bench trial was held on March
16–17, 2015. During the trial, Overman testified that, during both the small
and the large committee interviews, she received numerous questions
regarding how, as a woman, she would be able to adequately command a police
department composed predominantly of male employees. 1 She also testified
that, during the small committee interview, Mayor Holden asked her to “talk




      1Overman’s testimony on this point was reinforced by the testimony of at least one
committee member, who recalled Overman being asked gender-based questions in the small
committee meeting without objection from Mayor Holden.
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                                        No. 15-30948
about men,” and quizzed her about problems that he heard Overman had with
supervisors at the NOPD because she was a woman.
       Mitigation of damages was also a major issue at trial. Accordingly,
Overman testified regarding her efforts to find other employment after not
being hired as the Baton Rouge police chief. Overman asserted that, after not
being hired as the police chief, she applied for numerous other jobs, and
eventually accepted a position as an instructor at a law enforcement training
academy in Mississippi. Overman, however, resigned from this position in
September 2012, and instead enrolled in classes full-time in an effort to finish
her PhD in urban studies, which she was already working toward when she
applied for the police chief position.             Overman testified that she left the
training academy job because of constant downsizing, and the inevitability that
her position at the academy would soon be cut as well. Overman was not
employed while working toward her PhD; she did, however, begin drawing on
her state retirement pension. Overman also cared for and relocated her elderly
mother during this time frame. After receiving her PhD in May 2014, Overman
again started seeking employment; she eventually found a job as a professor
in criminal studies.
       The district court, after presiding over the bench trial and receiving post-
trial briefing, rendered judgment in favor of Overman, and awarded her
$272,148 in back pay and lost pension earnings. The district court found that
the defendants’ proffered legitimate reasons for not selecting Overman were
pretextual because they were inconsistent or otherwise not credible. 2                      The
district court concluded that, following the defendants’ decision not to hire her,




       2 The district court also found that Overman was “clearly more qualified” than White
for the position of police chief, which, standing alone, can be sufficient to rebut a defendant’s
proffered nondiscriminatory reasons for refusing to hire the plaintiff.
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                                       No. 15-30948
Overman had demonstrated reasonable efforts to mitigate her damages by
seeking equivalent work. The defendants appealed.
                                           II.
        “The standard of review for a bench trial is well established: findings of
fact are reviewed for clear error and legal issues are reviewed de novo.” One
Beacon Ins. Co. v. Crowley Marine Servs., Inc., 648 F.3d 258, 262 (5th Cir. 2011)
(quotation marks and citation omitted); see also Fed. R. Civ. P. 52(a)(6) (stating
that, following a bench trial, “[f]indings of fact, whether based on oral or other
evidence, must not be set aside unless clearly erroneous”). Under the “clearly
erroneous” standard, “we will uphold a finding so long as it is plausible in light
of the record as a whole, or so long as this court has not been left with the
definite and firm conviction that a mistake has been made.” See Chemtech
Royalty Assoc., L.P. v. United States, 766 F.3d 453, 460 (5th Cir. 2014) (internal
quotation marks and citations omitted); see also In re Luhr Bros., Inc., 325 F.3d
681, 684 (5th Cir. 2003) (“‘Where there are two permissible views of the
evidence, the factfinder’s choice between them cannot be clearly erroneous.’”
(quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573–74 (1985))).
                                           III.
        The defendants contend that the district court clearly erred in (1) finding
that      Overman       successfully     rebutted     the       defendants’    proffered
nondiscriminatory reasons for refusing to hire Overman, and (2) finding that
Overman undertook reasonable efforts to mitigate her damages. We examine
each argument in turn.
                                            A.
        The district court found that the defendants violated Title VII and the
LEDL by deciding not to hire Overman because she is a woman. The
defendants concede that Overman has established a prima facie case of


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                                       No. 15-30948
employment discrimination under Title VII. 3                 The defendants, however,
contend that they offered evidence of several nondiscriminatory reasons for
refusing to hire Overman, and that the district court clearly erred in finding
that Overman had successfully rebutted these proffered reasons by showing
that they were pretextual.
       Under Title VII, “[e]stablishing the prima facie case raises an inference
of unlawful discrimination, and the burden of production then shifts to the
defendant-employer to proffer a legitimate, nondiscriminatory reason for the
challenged employment action.” Blow v. City of San Antonio, 236 F.3d 293,
296–97 (5th Cir. 2001) (citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S.
248, 254 (1981)).         If the defendant-employer establishes a legitimate,
nondiscriminatory reason, the plaintiff must then produce evidence to
establish either: “(1) that the employer’s proffered reason is not true but is
instead a pretext for discrimination; or (2) that the employer’s reason, while
true, is not the only reason for its conduct, and another ‘motivating factor’ is
the plaintiff’s protected characteristic.” Alvarado v. Tex. Rangers, 492 F.3d
605, 611 (5th Cir. 2007).
       After a careful review of the record, we hold that the district court did
not clearly err in finding that the defendants’ proffered reasons for refusing to
hire Overman were pretextual. In its opinion, the district court set out each of
the defendants’ proffered nondiscriminatory reasons, and explained why
Overman had offered evidence showing that each reason was lacking in
credibility, and thus pretextual.           See ROA.1279–90.           For example, the
defendants asserted that they had selected White for the position of police chief



       3The LEDL applies the same standards and burden shifting framework used for Title
VII claims. See Baker v. FedEx Ground Package Sys. Inc., 278 F. App’x 322, 327 (5th Cir.
2008). Thus, in keeping with the district court’s opinion and the parties’ briefing on appeal,
we focus our analysis on Overman’s Title VII claim.
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                                 No. 15-30948
simply because he had “local experience,” which would allow for an easier
transition period between chiefs. The district court, however, reasoned that
Mayor Holden’s own inconsistent statements suggested that this basis was
pretextual; when seeking candidates for the police chief job, Holden announced
that he was conducting a “nationwide” search for the best candidate, indicating
that he was not concerned about fielding candidates with local experience.
Moreover, at the time White was hired, he had not worked for the Baton Rouge
Police Department in the past twenty years, and there was no evidence that
White’s later employment with the LDPS—in positions that the district court
concluded were principally administrative in nature, and largely unrelated to
urban policing—bestowed upon him any further “local experience.” Finally,
Mayor Holden could not even recall when and for what period of time White
had worked for the Baton Rouge Police Department, further undercutting
Holden’s purported emphasis on past local experience when evaluating
applicants’ credentials.
      The above example is illustrative of the rigorous examination that the
district court afforded each of the defendants’ other alleged nondiscriminatory
reasons. Having reviewed the record, and having concluded that there is no
clear error with respect to the district court’s findings, we need not reexamine
each of the defendants’ proffered reasons here. We do, however, note that the
district court found credible Overman’s testimony that, during the committee
interviews, she was subjected to a repetitive line of questioning based solely on
doubts over whether, as a woman, she could be an effective police chief. The
district court reasoned that Holden and other committee members’ willingness
to overtly and repeatedly express these gender-specific concerns when
interviewing Overman “supports and solidifies the finding that the
[defendants’] legitimate, nondiscriminatory reasons are not credible,” and were
instead pretextual.
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                                       No. 15-30948
       We agree.       That committee members repeatedly asked Overman to
address whether, as a woman, she could confidently manage and supervise
male subordinates undermines the defendants’ contentions that their
employment         decision      was      predominantly         influenced       by     other,
nondiscriminatory considerations. At a minimum, the district court did not
commit clear error in finding that this prominent line of questioning about
gender-specific concerns was further evidence of pretext. 4
       The defendants urge that we should discount Overman’s testimony
about what transpired during the committee interviews because it is self-
serving or otherwise dubious in the light of the record, and that, in any event,
we should draw different inferences from the content of her testimony. As
noted, however, the district court determined that Overman’s testimony was
credible; the inferences the district court drew from that testimony are, at least
to some extent, based on that credibility finding.                   We have previously
emphasized that “the clearly erroneous standard of review following a bench
trial requires even ‘greater deference to the trial court’s findings when they are
based upon determinations of credibility.’” Guzman v. Hacienda Records and
Recording Studio, Inc., 808 F.3d 1031, 1036 (5th Cir. 2015) (quoting In re Luhr
Bros., Inc., 157 F.3d 333, 338 (5th Cir. 1998)).



       4  Having concluded that the district court did not clearly err in finding that the
defendants’ purported “legitimate” reasons for refusing to hire Overman lacked a credible
basis, and thus were pretextual, we need not consider the district court’s alternative
reasoning that Overman’s clearly superior qualifications were, standing alone, indicative of
intentional discrimination. See Sanders v. Anadarko Petrol. Corp., 108 F. App’x 139, 143 (5th
Cir. 2004) (“Pointing to clearly superior qualifications is one way to demonstrate intentional
discrimination, but it is not the only way. A plaintiff may also establish pretext by presenting
evidence that the employer’s proffered explanation is false or unworthy of credence, because
it is not the real reason for the adverse employment action.” (internal quotation marks and
citations omitted)). To the extent that the district court merely considered Overman’s
exceptional resume as being one factor of many rendering not credible the defendants’
proffered reasons for refusing to hire Overman, the district court did not commit reversible
error.
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                                 No. 15-30948
      We cannot say that the district court committed clear error in finding
that the committee’s gender-specific line of questioning took place, and was, in
itself, indicative of discriminatory animus. Accordingly, we affirm the district
court’s finding of liability under Title VII and the LEDL. We now consider
whether the district court clearly erred in finding that Overman undertook
reasonable efforts to mitigate her damages following the defendants’ decision
not to hire her.
                                        B.
      The defendants next argue that, assuming liability under Title VII, the
district court erred in not reducing its award of damages because Overman
failed to engage in reasonable efforts to mitigate her losses stemming from the
adverse employment decision. “A Title VII plaintiff has a duty to mitigate her
damages by using reasonable diligence to obtain substantially equivalent
employment.” Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1045 (5th Cir. 1998)
(citing Sellers v. Delgado Coll., 902 F.2d 1189, 1193 (5th Cir. 1990)).
“Substantially equivalent employment is that employment which affords
virtually   identical     promotional       opportunities,   compensation,      job
responsibilities, working conditions, and status as the position from which the
Title VII claimant has been discriminatorily terminated.” Sellers, 902 F.2d at
1193 (internal quotation marks omitted). The reasonableness of a Title VII
claimant’s diligence must be evaluated in the light of the “individual
characteristics of the claimant and the job market.” Id. (internal quotation
marks omitted). The employer bears the burden of proving that a plaintiff
failed to undertake reasonable efforts to mitigate her losses, and the district
court’s finding is, once again, subject to the clearly erroneous standard of
review. See id. at 1193–94.
      It is undisputed that Overman undertook reasonable efforts to mitigate
her damages from May 2011 until September 2012. In late September,
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                                  No. 15-30948
however, Overman resigned from her position as an instructor at the
Mississippi training academy to enroll in school on a full-time basis. The
defendants contend that, at this point, Overman failed further to undertake
reasonable efforts to mitigate her damages because she removed herself from
the labor market.      The district court, however, held that, considering
Overman’s individual circumstances, her decision to leave employment to
enroll in school as a full-time student was consistent with the duty to take
reasonable efforts to mitigate her damages resulting from lack of employment.
      Contrary to the defendants’ suggestions, a Title VII plaintiff’s decision
to attend school on a full-time basis does not always bar back pay during the
period of enrollment. See Dailey v. Societe Generale, 108 F.3d 451, 456–57 (2d
Cir. 1997) (“[T]here is no per se rule that finds inherently incompatible the duty
of a Title VII plaintiff to use reasonable diligence in securing comparable
employment and such a plaintiff’s decision to attend school on a full-time basis.
Rather, the central question a court must consider when deciding whether a
student-claimant has mitigated her damages is whether an individual’s
furtherance of his education is inconsistent with his responsibility ‘to use
reasonable diligence in finding other suitable employment.’” (quoting Ford
Motor Co. v. EEOC, 458 U.S. 219, 231 (1982))); see also Green v. Admin. of
Tulane Educ. Fund, 284 F.3d 642, 659 (5th Cir. 2002), overruled on other
grounds by Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53 (2006).
      There is a distinction, however, between attending school only after a
diligent, but ultimately unsuccessful, job hunt, and a plaintiff who takes
herself out of the job market to attend school in the hope of gaining access to
higher paying jobs, foregoing comparable employment in the meantime.
Compare Dailey, 108 F.3d at 456–57 (affirming an award of back pay when the
plaintiff quit the job market to attend school only after an extensive job hunt
failed to offer any comparable employment), with Miller v. Marsh, 766 F.2d
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490, 492–93 (11th Cir. 1985) (affirming denial of back pay award to plaintiff
who withdrew from temporary employment to begin attending law school
without first pursuing a comparable position as a legal stenographer).
      In fashioning Title VII remedies, we are mindful that back pay under
Title VII is an equitable, or “make whole,” remedy. See Albemarle Paper Co. v.
Moody, 422 U.S. 405, 419 (1975). As such, its purpose is to place the plaintiff
in the position that she would have been in but for the defendant’s illegal
conduct. Id. at 418–19. When a plaintiff recovers back pay for the period of
time when she has taken herself out of the relevant job market, the remedial
purpose of back pay under Title VII, that is to “make whole” from the loss of
the job, can be abnegated. See, e.g., Taylor v. Safeway Stores, Inc., 524 F.2d
263, 267–68 (10th Cir. 1975) (“If a discharged employee accepted employment
elsewhere, there is little doubt that this would cut off any back pay award. If
not, the employee would be receiving a double benefit for the same period of
time. Likewise, when an employee opts to attend school, curtailing present
earning capacity in order to reap greater future earnings, a back pay award for
the period while attending school also would be like receiving a double
benefit.”).
      We cannot discern from the record whether the district court
appropriately considered whether Overman’s decision to obtain her doctorate
degree and change fields of employment from police work to full-time academia
is consistent with the equitable principles of back pay under Title VII. It
appears that the district court avoided this discussion despite Overman’s
admission that, following her decision to leave her job at the training academy,
she did not undertake further efforts to seek employment until she completed
her doctorate and took a position on the faculty of Southern New Hampshire




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University. 5 See Dist. Ct. Op. at 36 (“After obtaining her doctorate the plaintiff
could apply for higher-salaried positions at colleges, universities, and other
institutions. The evidence shows that this is in fact what the plaintiff did.
Plaintiff received her doctorate in May 2014 and then began looking for
employment in higher education.”).
      Moreover, the district court relies on Overman’s personal prerogatives—
such as her decision to renovate her home and her need to relocate her elderly
mother to another state—when deciding that Overman’s decision to leave
employment at the training academy was “reasonable” in the light of her duty
to mitigate damages. See Dist. Ct. Op. at 35 (reasoning that the plaintiff made
a reasonable effort to mitigate her damages, in part because she “left the
training academy and devoted all her time to . . . renovating her home to sell
and relocating her mother”).           If these circumstances reasonably forced
Overman to leave her job at the training academy, however, it follows naturally
that they would have also prevented her from satisfying her duty to mitigate
her damages by accepting other comparable work if available, or from
remaining as the Baton Rouge police chief in the event that the defendants had
instead hired her for the position. See Winbush v. State of Iowa by Glenwood
State Hosp., 66 F.3d 1471, 1486–87 (8th Cir. 1995) (finding that the district
court clearly erred in awarding the plaintiff back pay under Title VII following
her decision to leave the work force voluntarily to care for her elderly mother).
      If Overman’s decision to attend school resulted from a diligent, but
ultimately fruitless, job hunt, then her duty to mitigate damages under Title
VII may have been fulfilled. See Dailey, 108 F.3d at 457. Conversely, if
Overman chose to pursue her PhD instead of pursuing comparable available


      5Furthermore, at the time Overman left work at the Mississippi training academy in
September 2012, a full year had passed since she last tested the job market for comparable
employment.
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employment, then she did not fulfill her duty to mitigate. See Taylor, 524 F.2d
at 267–68. The district court, however, did not conduct this analysis, and
instead generalized that Overman’s efforts to mitigate were “reasonable” in the
light of her personal responsibilities and other individual circumstances.
Accordingly, we vacate the district court’s award of damages, and remand the
case for further consideration of whether Overman’s decision to attend school
on a full-time basis is consistent with her duty to mitigate damages under Title
VII. In conducting this inquiry, the district court may hear additional
testimony and consider additional evidence to the extent it deems appropriate.
                                      C.
      Finally, we note that the record does not provide a clear understanding
of how the district court calculated its damages award for “loss of pension
increase.” According to Overman’s own testimony, her pension should have
been calculated by taking 3.33% of the average of her highest three years of
salary, and then multiplying that by years of service.      The district court,
however, relying on Overman’s off-hand estimation that her pension would
have “come very close to doubling,” simply added $60,000 to Overman’s
existing yearly pension sum of $61,909. This made Overman’s present yearly
pension benefits nearly $20,000 more than the $102,276 yearly salary that the
district court concluded she would have earned as Baton Rouge police chief. It
is difficult to understand how, in retirement, Overman would have earned
more than her active salary as police chief would have been. On remand, the
district court should make an effort to explain more fully its rationale in the
treatment of these pension benefits, and consider taking additional evidence
regarding how pension benefits are calculated.
                                      IV.
      In sum, the district court did not clearly err in finding that Overman
established that the defendants’ proffered reasons for not hiring her were
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pretextual. We thus AFFIRM the district court’s finding of liability under Title
VII.   We, however, VACATE the district court’s award of damages, and
REMAND this action for reconsideration of whether Overman undertook
reasonable efforts to mitigate her damages after leaving employment to enroll
in school.
                                       AFFIRMED in part; VACATED in part;
                                                                  REMANDED.




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