     Case: 17-60697   Document: 00514888165     Page: 1   Date Filed: 03/26/2019




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


                                 No. 17-60697                         FILED
                                                                 March 26, 2019
                                                                 Lyle W. Cayce
SHEANETER J. BOGAN.,                                                  Clerk

             Plaintiff - Appellant

v.

MTD CONSUMER GROUP, INCORPORATED,

             Defendant - Appellee




                Appeal from the United States District Court
                  for the Northern District of Mississippi


Before WIENER, SOUTHWICK, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:
      Sheaneter Bogan filed suit alleging that she was fired because of her race
and sex. A jury found in her favor but awarded her just $1. The district court
then denied Bogan both reinstatement and front pay, leaving her with no
remedy. We review the district court’s decision not to award prospective relief.
Because two of the reasons the district court relied on in denying reinstatement
do not support that result, we remand for reconsideration.
                                     I.
                                     A.
      Bogan worked at MTD Consumer Group, a manufacturer of outdoor
power equipment, for about 20 years.       She started with the company in
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unskilled positions, but while working took full-time classes at a community
college so she could obtain a skilled position.     After she completed that
coursework, MTD eventually promoted Bogan to be a machinist in the Tool and
Die department. She remained in that job for about two years until her
termination in April 2013.
      While pursuing the Tool and Die position, Bogan also began going to
school for a degree in social work. Her supervisors initially accommodated her
class schedule with flexible work hours. But in fall 2012, human resources
notified Bogan that, based on company policy only allowing flexible hours for
work-related schooling, she had to work a normal shift.
      Despite this decision, Bogan still worked some irregular hours.         So
Bogan’s supervisors reminded her that she had to work the regular 5:00 a.m.
to 3:30 p.m shift and could not attend classes during work hours. But on
occasion Bogan would squeeze class time into her lunch break.           When a
supervisor learned about this, he suspended Bogan. MTD then terminated
her, ostensibly because she came back from lunch late. Bogan unsuccessfully
appealed her termination to an employee review board.
                                    B.
      After receiving a right-to-sue letter from the EEOC, Bogan filed this suit
alleging race and sex discrimination. MTD sought summary judgment. The
district court denied that motion, concluding that the evidence could support a
finding that MTD’s reason for the termination was pretextual. For example,
other employees “routinely” took lunch breaks that lasted longer than thirty
minutes, but Bogan was the only one punished for doing so. The court also
pointed to doubts about the accuracy of information in Bogan’s personnel file.
      A four-day trial followed that resulted in the jury finding that MTD
“discriminated against [Bogan] on the basis of her race and/or gender.” The


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jury awarded her $1, perhaps because of a jury instruction on the consequences
of a failure to mitigate, an argument that MTD pushed.
      Bogan then asked the court for reinstatement or front pay. The district
court held a hearing after which it denied both requests. It cited four factors
that it believed counseled against reinstatement and refused to order that
remedy. For front pay, the court held that MTD established that Bogan did
not mitigate her damages.
                                     II.
      Reinstatement and front pay are equitable remedies.         The ultimate
exercise of a court’s equitable power is reviewed for abuse of discretion.
Deloach v. Delchamps, Inc., 897 F.2d 815, 822 (5th Cir. 1990). An error of law
or application of an incorrect legal standard rises to that level. Klier v. Elf
Atochem N. Am., Inc., 658 F.3d 468, 474 (5th Cir. 2011). But the factual
findings that underlie the decision to grant or deny relief are reviewed only for
clear error. Sellers v. Delgado Cmty. Coll., 839 F.2d 1132, 1138 (5th Cir. 1988).
                                     A.
      That deferential standard for review of factual determinations disposes
of Bogan’s appeal of the front pay ruling.       Bogan argues she did make
reasonable efforts to obtain work and tried to keep up with her training. She
makes some good points, but there was also evidence to support the district
court’s contrary conclusions. We thus see no clear error in the court’s finding
that Bogan did not use reasonable diligence to obtain “substantially equivalent
employment.” Id.
                                     B.
      That leaves her challenge to the ruling on reinstatement. Reinstatement
is the preferred equitable remedy under Title VII. Hansard v. Pepsi-Cola
Metro. Bottling Co., 865 F.2d 1461, 1469 (5th Cir. 1989). Reinstatement more
tightly fits the termination injury. It does not require answering the front pay
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question of “whether and for how long a plaintiff will work in the future,” for
which a bad guess means either that plaintiff is “left without a remedy” or
“end[s] up with a windfall.” Duke v. Uniroyal Inc., 928 F.2d 1413, 1423 (4th
Cir. 1991); see also Reneau v. Wayne Griffin & Sons, Inc., 945 F.2d 869, 870
(5th Cir. 1991) (noting that front pay is “necessarily speculative in nature” and
requires the court to engage in “intelligent guesswork”). And reinstatement
restores not just the financial benefits of a job but also the “psychological
benefits” of work. Allen v. Autauga Cty. Bd. of Educ., 685 F.2d 1302, 1306
(11th Cir. 1982).    Ergo, reinstatement is most consistent with Title VII’s
“‘make-whole’ philosophy.” Hansard, 865 F.2d at 1469.
      This case presents an unusual situation in which no prospective (or
meaningful retrospective) relief was awarded after a finding of discrimination.
Our caselaw contemplates that one form of prospective relief will ordinarily be
appropriate when it is requested. We have often said that the trial court’s
remedial discretion in this area involves the “selection between reinstatement
and front pay.” Brunnemann v. Terra Int'l, Inc., 975 F.2d 175, 180 (5th Cir.
1992) (emphasis added); see also Palasota v. Haggar Clothing Co., 499 F.3d
474, 489 (5th Cir. 2007) (quoting Brunnemann); Weaver v. Amoco Prod. Co., 66
F.3d 85, 88 (5th Cir. 1995) (same).     The typical “either/or” nature of this
remedial choice is also seen in our statement that “if reinstatement is not
feasible, front pay is the appropriate award.”        Weaver, 66 F.3d at 88;
Brunnemann, 975 F.2d at 180 (“Generally, if reinstatement is not feasible,
front pay will be awarded.”); see also Weaver v. Casa Gallardo, Inc., 922 F.2d
1515, 1528 (11th Cir. 1991) (“[P]revailing Title VII plaintiffs are presumptively
entitled to either reinstatement or front pay.”). In discussing another federal
employment statute (the retaliation provision of the Fair Labor Standards
Act), Judge Wisdom went so far as to say that “it is impossible for us to imagine


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cases when a denial of both reinstatement and reimbursement would be
justified.” 1 Goldberg v. Bama Mfg. Corp., 302 F.2d 152, 156 (5th Cir. 1962).
       Yet given the equitable nature of these remedies and the limits of our
imagining the full variety of situations that arise in the workplace, there may
be outlier situations in which no prospective relief is appropriate for a victim
of discrimination. Indeed, although the parties could point to no case from our
court in which a plaintiff sought either form of prospective relief but received
neither, 2 we found one such case involving an award of punitive damages that
the district court concluded was enough to make the victim whole. Hadley v.
VAM P T S, 44 F.3d 372, 376 (5th Cir. 1995). The Supreme Court has also
identified one scenario: when after termination the employer obtains evidence
of serious employee misconduct. McKennon v. Nashville Banner Publ’g Co.,
513 U.S. 352, 361–62 (1995). 3 But our consistent signaling is that the usual
case involves a district court’s choosing which of the two options better serves



       1  When Judge Wisdom made that observation, the FLSA did not allow damages for
retaliation. 29 U.S.C. § 216(b); Pub. L. 95-151 (1977) (adding provision that allows for both
legal and equitable remedies). It now does, as does Title VII since the Civil Rights Act of
1991. 42 U.S.C. § 1981a(a)(1); Pub. L. No. 102-166 (1991). Yet most of the cases cited above
discussing equitable Title VII remedies arose after the 1991 amendments allowed damages.
        2 MTD cited two examples at oral argument, Giles v. Gen. Elec. Co., 245 F.3d 474 (5th

Cir. 2001) and Hansard, 865 F.2d 1461. In Giles, the plaintiff was denied back pay, but
received front pay. We indicated that it may have been appropriate to deny front pay, but it
was not an abuse of discretion to allow it. 245 F.3d at 489. In Hansard, we reduced a
plaintiff’s back pay for failure to mitigate and remanded the issue of front pay to the district
court to consider mitigation. 865 F.2d at 1468. Neither of these cases foreclose the possibility
that a plaintiff may be denied a prospective remedy. But neither considered or affirmed a
judgment in which a plaintiff was denied any prospective remedy.
        3 There are also examples from other circuits. The Eighth Circuit held that evidence

of post-termination misconduct (as opposed to McKennon’s after-acquired evidence of pre-
termination misconduct) that would render the plaintiff ineligible for reinstatement may also
justify denying both equitable remedies. Sellers v. Mineta, 358 F.3d 1058, 1064 (8th Cir.
2004). The Seventh Circuit upheld denial of both reinstatement and front pay when the jury
found the plaintiff’s earning capacity was not harmed as he had changed careers and started
receiving a higher salary. Although he later alleged he had trouble holding that job, the court
said his employer was not required to “insure his future employment success.” McKnight v.
Gen. Motors Corp., 973 F.2d 1366, 1372 (7th Cir. 1992).
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the “purpose of Title VII to make persons whole for injuries suffered on account
of unlawful employment discrimination.” Albemarle Paper Co. v. Moody, 422
U.S. 405, 418 (1975); Brunnemann, 975 F.2d at 180.
      Before we can assess whether the district court abused its discretion in
not reinstating Bogan, we review each factor it cited in support of that ruling.
The first two are ones that do counsel against reinstatement. Because Bogan’s
position no longer “exists as it did during her employment,” the district court
properly considered that reinstatement would require training on new
machines and that the company did not have a present opening in the Tool and
Die department. See Palasota, 499 F.3d at 489. It was also permissible for the
court to rely on its finding that Bogan had intended to change careers to social
work. Id.
      The third reason the district court cited is MTD’s argument that it
“would have terminated Plaintiff in the absence of any purported
discrimination” because of “her inability to follow the rules and her attitude.”
See 42 U.S.C. § 2000e-5(g)(2)(B). Yet the district court did not find that MTD
proved this statutory defense, it only noted it as MTD’s position.         More
fundamentally, the district court could not find in favor of MTD on this issue
because the jury had rejected it. It 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.” See also FIFTH CIRCUIT
PATTERN JURY INSTRUCTIONS (Civil Cases) 11.13 (2014); Price Waterhouse v.
Hopkins, 490 U.S. 228, 253 (1989). The jury thus must have rejected this
defense in finding that MTD was liable for discrimination.         It would be
improper for the court to override the jury’s factfinding on this question when
deciding equitable relief. Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d
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955, 965 (10th Cir. 2002) (“[W]hen legal and equitable issues to be decided in
the same case depend on common determinations of fact . . . the court in
resolving the equitable issues is then bound by the jury's findings on them.”);
In re Lewis, 845 F.2d 624, 630 (6th Cir. 1988) (“In the context of employment
discrimination cases, it is well-settled that a jury's findings of discrimination
are binding on a court considering reinstatement.”); Hussein v. Oshkosh Motor
Truck Co., 816 F.2d 348, 355 (7th Cir. 1987) (“[I]n deciding whether to grant
equitable relief under Title VII, the district court [is] prohibited from
reconsidering any issues necessarily and actually decided by the jury.”);
Lindsey v. Am. Cast Iron Pipe Co., 810 F.2d 1094, 1097–98 (11th Cir. 1987)
(holding that a district court’s rejection of liquidated damages in an age
discrimination case was improper because it relied on factual findings “that
conflicted with the jury’s findings”); Gibson v. Mohawk Rubber Co., 695 F.2d
1093, 1101 (8th Cir. 1982) (stating that the district court “cannot base its
decision on its own factual findings that conflict with those expressly made by
the jury”). Allowing MTD to relitigate the verdict during the remedial phase
was error.
      The final reason the district court cited in denying reinstatement—
“discord between the parties”—is also problematic because of the apparent
source of that acrimony. For understandable reasons, hostility between the
parties that is likely to disrupt the workplace if the employee returns can be a
reason for denying reinstatement. See, e.g., Deloach, 897 F.2d at 822. Such
acrimony is often cited by courts that award front pay rather than requiring
the plaintiff to return to a discriminatory employer. Id. (addressing employer’s
appeal of front pay award in which it argued that reinstatement was preferable
even though the district court had found there was too much discord between
the parties for that remedy); see also Walther v. Lone Star Gas Co., 952 F.2d


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119, 127 (5th Cir. 1992) (addressing employer’s argument that reinstatement
should have been imposed rather than front pay award).
      What makes this a challenging area is that the post-lawsuit context in
which this question arises usually sees some friction between the parties.
Antagonism is a natural by-product of lawsuits, often even more so for ones
alleging discrimination. If the hostility common to litigation were sufficient
for “denial of reinstatement, reinstatement would cease to be a remedy except
in cases where the defendant felt like reinstating the plaintiff.” EEOC v.
Century Broad. Corp., 957 F.2d 1446, 1462 (7th Cir. 1992); see also Weaver v.
Amoco Prod. Co., 95 F.3d 52, 1996 WL 459345 at *2 (5th Cir. 1996)
(unpublished) (noting that the hostility must “exceed the animosity level that
commonly arises between opposing parties throughout the litigation process”).
And for reasons we have just explained, the finding of discord cannot rely on
reasons rejected by the jury, such as hostility stemming from the employee’s
alleged misconduct that the jury found to be pretextual. Cf. Ray v. Iuka Special
Mun. Separate Sch. Dist., 51 F.3d 1246, 1254 (5th Cir. 1995) (recognizing that
finding of discord could not be based “upon reasons rejected by the jury,”
though concluding that is not what the district court’s ruling relied on). So
more than the friction that typically results from litigation or the employee’s
termination is required for the discord to be a reason not to order
reinstatement.
      The acrimony must rise to the level at which the parties’ relationship is
“irreparably damaged.” Walther, 952 F.2d at 127; see also Allen, 685 F.2d at
1306 (“Unless we are willing to withhold full relief from all or most successful
plaintiffs in discharge cases, and we are not, we cannot allow actual or expected
ill-feeling alone to justify nonreinstatement.”).    That “lingering hostility”
existed when a plaintiff had alleged that his employer “attempted to black-ball
him in the industry” and the employer alleged the plaintiff filed falsified
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expense reports, something that it did not allege was a justification for the
plaintiff’s actual termination but could have been. Palasota, 499 F.3d at 490. 4
       The 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.                Walther, 952 F.2d at 127
(stating that a court should cite “specific instances of discord” for the acrimony
to justify denying reinstatement). It did describe MTD’s hostility towards
Bogan as “palpable,” but the only example cited was the remedial-phase
testimony of the human resources manager when he “discussed the human
resources issues he would face if the employee review process were to be
negated by reinstating Plaintiff.” It is not clear that this problem is one of
hostility rather than inconvenience. And the concern that a court order of
reinstatement would be inconsistent with, and thus undermine, the employer’s
own dispute resolution procedures that resulted in termination would
seemingly always exist. More than that common situation is needed to find
that the relationship between the parties is so broken that it has reached the
point of no return. Id. Finally, 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. Without evidence that the relationship between Bogan and
MTD exceeded that which normally accompanies trials, this factor does not
militate against the preferred remedy of reinstatement.



       4 Examples from other circuits highlight how severe the hostility usually is when
courts use it to deny reinstatement. See Hunter v. Town of Mocksville, N.C., 897 F.3d 538,
562 (4th Cir. 2018) (denying reinstatement when the plaintiff made social media posts
following his termination calling the city for which he worked a “crooked [expletive] hole of a
town” and questioning the judgement of law enforcement decisions); Hammond v. Northland
Counseling Ctr., Inc., 218 F.3d 886, 892 (8th Cir. 2000) (finding sufficient acrimony to
preclude reinstatement in a False Claims Act case when there was evidence of attempts by
the plaintiff’s coworkers to “intimidate and harass” her after she filed her suit).
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      Because the district court should not have considered two of the four
factors it relied on in denying reinstatement, we cannot review its conclusion
that Bogan’s reinstatement would not further the remedial goals of Title VII.
The remedial discretion is vested in the district court, and we do not know how
it would exercise that authority with two fewer factors on the “no
reinstatement” side of the scale. We thus remand for further proceedings
without suggesting how the district court should exercise its discretion based
on the two factors that remain or other permissible considerations that the
district court may find relevant.
                                     ***
      AFFIRMED in part, VACATED and REMANDED in part.




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