PER CURIAM:[fn*] [fn*] 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Pursuant to a written plea agreement, Lorman Tyrone Miles pleaded guilty to bank robbery and stipulated to committing three other bank robberies. Miles appeals the 210-month sentence imposed pursuant to an upward departure under U.S.S.G. § 4A1.3.
We review the district court's sentencing decisions for reasonableness under an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 46, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). A district court acts within its discretion in departing upward pursuant to § 4A1.3 if its reasons for departure advance the objectives of sentencing set forth in 18 U.S.C. § 3553(a)(2) and are justified by the facts of the case. United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006).
Although Miles states that his sentence is unreasonable because the reasons for the departure fail to advance the objectives of § 3553(a)(2), he argues that it is unreasonable because it fails to advance the objectives of other subsections of § 3553(a), specifically § 3553(a)(1), (a)(4)(A), and (a)(6). To the extent he argues that the district court failed to consider these other factors and that the district court erred in its application of § 4A1.3, these are procedural errors that he did not preserve by objection or other argument in the district court. See Gall, 552 U.S. at 51, 128 S.Ct. 586 (listing failure to consider the § 3553(a) factors and improperly calculating the guidelines as procedural errors). Accordingly, these arguments are reviewed for plain error. See Puckett v. United States, ___ U.S. ___, ___, 129 S.Ct. 1423, 1428, 173 L.Ed.2d 266 (2009).
The district court stated that it had considered the § 3553(a) factors in selecting the 210-month sentence and addressed specifically the guidelines range, its reasons and method of departing pursuant to § 4A1.3, and Miles's history and characteristics. Thus, Miles has not shown that the district court erred, plainly or otherwise, by failing to consider the § 3553(a) factors. Nor has Miles shown that the district court erred in determining that an upward departure was warranted under § 4A1.3 or in applying the incremental approach to the upward departure.
Although the 210-month sentence was a substantial departure from the 100 to 125 month range calculated without the § 4A1.3 upward departure, the facts of Miles's case justify the extent of the upward departure. As described in the presentence report (PSR) and considered by the district court, Miles has an almost 20-year history of committing numerous crimes and of being in and out of prison. Those crimes included numerous theft and credit card abuse offenses, a drug offense, assault offenses, and an escape offense, for which Miles either received or spent very little time in prison. This pattern of criminal behavior escalated in July 2007 when he committed four bank robberies. Thus, the upward departure is justified by the facts of Miles's case. Additionally, the record reflects that the district court reviewed Miles's PSR, listened to his attorney's arguments at sentencing, considered the documents submitted in support of Miles at sentencing, listened to Miles's statements to the court, and consulted the § 3553(a) factors. Moreover, the sentence imposed advances the purposes of § 3553(a)(2), including the need to promote respect for the law, the need for adequate deterrence, and the need to protect the public from future crimes by Miles. Accordingly, Miles has not shown that the district court abused its discretion by upwardly departing to the extent it did or that the 210-month sentence is substantively unreasonable. See Zuniga-Peralta, 442 F.3d at 347.
AFFIRMED.
ule/archives/eci_nr.htm. Thus, a 3% rate would serve as a reasonable means of adjusting Hylind's annual salary estimates to account for inflation and wage growth over time. Accordingly, the Court adjusts Hylind's compensation upward at a rate of 3% annually over the relevant period. In declining to further increase Hylind's compensation estimates to account for merit-based increases above the rate of inflation and average wage growth, the Court notes that Hylind will also receive, as described
infra, pre-judgment interest, through judgment, for all back pay awarded over the relevant period.
As for lost benefits, the Court will add to each year's base salary a percentage of that base salary representing employer contributions to Hylind's 401(k) and her cash balance retirement account. For the 401(k), the contribution rate was 3% per year from 1995 to 2002. For the cash balance retirement account, the contribution was 5% per year from 1995 to 2002. Combined, these two percentages result in additional yearly benefits of 8% of salary.
C. Whether Xerox Is Entitled to an Offset for Disability Payments to Hylind
Xerox argues that it is entitled to an offset against the back pay award for payments Hylind received under Xerox's disability plan, while Hylind argues that these payments were from a collateral source and therefore should not be offset against the back pay award. The Court concludes that these payments ultimately came from Xerox, not from a collateral source, and therefore should be offset against the back pay award.
The "collateral source rule" provides that "when the victim of a tort receives payment for his injuries from a collateral source, that is, a source independent of the tortfeasor, the payment should not be deducted from the damages owed by the tortfeasor." Ward v. Allied Van Lines, Inc., 231 F.3d 135, 139 (4th Cir. 2000). Collateral funds are "those received from a source distinct from the employer." Szedlock v. Tenet, 61 Fed. App'x 88, 93 (4th Cir. 2003). In light of the "make-whole" purpose of the back pay award, "[i]f an employer's payment would not have been made had the employee continued working, it exceeds the damages necessary to make the plaintiff whole, and failure to offset it would necessarily lead to a windfall." Fariss v. Lynchburg Foundry, 769 F.2d 958, 966 (4th Cir. 1985). "Otherwise, plaintiff would enjoy the rewards from the employer both of working and not working." Id. at 967.
Hylind has requested that the Court employ the five-part Allen test, which weighs various factors, to determine whether the disability payments should be considered a collateral source. While some district courts in this Circuit have applied the Allen test in evaluating collateral source issues, see, e.g., Calef v. FedEx Ground Package System, Inc., 2007 WL 2570185, at *2 (N.D. W. Va. Aug. 31, 2007); Reed v. E.I. Du Pont de Nemours and Co., 109 F. Supp. 2d 459, 467 (S.D. W. Va. 2000), they did so in the context of deciding issues under state law. In the context of deciding collateral source issues under federal law, the Fourth Circuit was asked to apply the Allen test in Szedlock but did not do so. 61 Fed. App'x at 94. This Court also declines to apply the Allen test here.
The test considers: (1) whether the employee made any contribution to the funding of the disability payment; (2) whether the benefit plan arose as the result of collective bargaining activity; (3) whether the plan and payments thereunder cover both work-related and non-work-related injuries; (4) whether payments from the plan are contingent upon length of service of the employee; and (5) whether the plan contains any specific language contemplating a set-off of benefits received under the plan against a judgment recovered in a tort action. Allen v. Exxon Shipping Co., 639 F. Supp. 1545, 1548 (D. Me. 1986).
The Court also notes that, even if it were to apply the Allen test here, there is no evidence in the record that would permit the Court to balance the test's five factors. Xerox notes that Hylind's wage statements from Xerox show disability payments, but refers to no other documentation relating to the upstream source(s) of those funds. Hylind counters that she has "always believed that insurance companies . . . provided the funds," but refers to no documentation or testimony in the record supportive of that conclusion. In the absence of any additional information in the record regarding the source(s) of the disability payments, their precise purpose(s), or the details of their calculation and administration, the Court would have no means of applying the Allen factors to the facts of this case.
The evidence on this issue suggests that the disability payments received by Hylind came from Xerox. The disability plan was a benefit she received as an employee of Xerox, and she herself admitted that Xerox was the payor of the disability benefits, as reflected in her annual earnings statements. See Hylind Test. (June 14, 2007) 136:2-138:11. Beyond Hylind's suggestion that insurance companies provided the benefits — a suggestion that, even if true, would not necessarily require a finding that the funds came from a collateral source — she provides no relevant documentation or other evidence in support of that proposition. Under the circumstances, with the record providing no concrete evidence that the funds came from a source
The caselaw is not clear on the question of whether the collateral source rule bars offsets against back pay awards for disability or other insurance benefits where the employer is both the benefit provider (or premium payor) and the wrongdoer. Compare Flowers v. Komatsu Mining Sys., Inc., 165 F.3d 554, 558 (7th Cir. 1999) (noting that, "[i]n an employment case, if the employer is the source of the funds at issue, then the payments can be deducted from the award," and asserting that, at least in age discrimination cases, it is within the district court's discretion to set off — or not set off — disability insurance payments), with Phillips v. Western Co. of N. Am., 953 F.2d 923, 931-34 (5th Cir. 1992) (noting that, "where the tortfeasor contributes toward the benefit, . . . the justifications for denying a setoff become less compelling," but nevertheless suggesting that a setoff may not be appropriate where the employer's payments into an insurance fund were not made for the purpose of insuring against legal liability). In any event, the Court again notes that the only available evidence suggests that the benefits at issue were paid by Xerox. Beyond Hylind's mere assertion that she has "always believed that insurance companies . . . provided the funds," the record in this case contains no evidence that the funds came from some other source, nor does it provide any evidence with regard to the purpose(s) of the funds, how they were calculated, or how they were distributed or administered.
other than Xerox, the Court cannot conclude that the payments were received from a source "independent" or "distinct" from Xerox, that is, that they came from a collateral source. Hylind received these payments because she could not work and she would not have received them if she had continued working. Failure to acknowledge an offset would give her the benefit "both of working and not working," an unfair windfall for her and an unfair penalty for Xerox. Accordingly, for each year as to which back pay is awarded. Hylind's award of salary and benefits will be reduced by the amount of disability pay she received in that year.
The parties have suggested that it may be appropriate to adjust the offset to include premiums or contributions paid in order to fund the disability benefits. The Court finds no evidence in the record as to the specific amounts, if any, either party paid in premiums or contributions, and the Court makes no further adjustment in this regard.
Hylind's annual disability payments were $34,819 ($2,901.55 per month). See Hylind Test. (Aug. 28, 2007) 88:21-:23; 100:19-101:3. While the take-home amount she received has fluctuated in some years due to various unrelated deduction or additions, the amount representing her disability pay has remained constant at $34,819. The Court will therefore use that amount as the offset amount.
As indicated in footnote 3, supra, the 8-year back pay period for which Hylind received disability pay technically started in June 1995, when she became disabled, and ran to May 2003. As with the base salary calculation, for the sake of simplicity in calculating the disability offset over the 8-year period, the Court will treat the back pay period as if it began in the beginning of 1995 and ran through the end of 2002.
The Court notes that Hylind has received disability pay up through the present, i.e., through September 2010. Although the Court has decided to offset the disability payments for the years 1995 to 2002 — the back pay period — the Court will not offset any disability payments made after the back pay period, i.e., after 2002. As the Court emphasizes in footnote 2, supra, the determination of the back pay period is based solely upon the wrongful conduct at issue in this case and the applicable legal standards for back pay awards in Title VII cases. Emphatically, this does not mean that Hylind has not been and is not currently disabled due to causes outside the scope of this case, such as alleged conduct by Xerox employees which occurred outside the statute of limitations, the preexisting nature and extent of Hylind's migraine headaches, or other harmful stressors which were not at issue in, or are not part of the record in, this case. Hylind may also be deemed disabled pursuant to some other metric of medical review, such as that established by the disability plan. The disability payments which were made during the years of the back pay period have been deducted from the back pay award since, for that period and that period only, the Court has determined that Hylind's disability was caused by Xerox's actionable conduct. The Court considers the disability payments made during that period as essentially advance payments on the back pay award, and they are being deducted so that Hylind does not inappropriately receive a double recovery for that period. At the same time, since the disability payments made to her after the back pay period may be attributable to causes outside of the legal and factual scope of this case, they are arguably payments Hylind would have received regardless of whether Xerox had committed the actionable wrongs at issue here.
D. Rate of Pre-judgment Interest
Pre-judgment interest is a matter within the court's discretion, taking into account the "make-whole" policy of Title VII. Maksymchuk v. Frank, 987 F.2d 1072, 1077 (4th Cir. 1993) (quoting Albemarle, 422 U.S. at 421). While not bound by state law, the court may choose to apply the interest rate provided for by state law. See Quesinberry v. Life. Ins. Co. of N. Am., 987 F.2d 1017, 1031 (4th Cir. 1993) (upholding application of Virginia pre-judgment interest rate); E.E.O.C. v. Liggett Myers Inc., 690 F.2d 1072, 1074 (4th Cir. 1982) (upholding application of North Carolina pre-judgment interest rate). The legal rate of interest in Maryland is 6% per annum, Md. Const. art. III, § 57, which reflects the lost time-value of money in this State. Hylind has lost the time-value of considerable sums of money. The Court will therefore apply a 6% per annum rate for pre-judgment interest in this case.
The Court declines to suspend the award of pre-judgment interest for the period that this matter was proceeding before administrative agencies. While that process took an inordinate amount of time, and while Hylind may have been able to request a right-to-sue letter earlier than she did, the Court will not penalize her for allowing the administrative proceedings to run their full course.
In light of the "make-whole" purpose of Title VII, the Court will also compound the interest annually instead of awarding simple interest. "Common sense and the equities dictate an award of compound interest." Cooper v. Paychex, Inc., 960 F. Supp. 966. 975 (E.D. Va. 1997) (Title VII case where court applied state pre-judgment interest rate but compounded interest to reflect fact that "an award of interest on interest, i.e., compound interest, is necessary to make [plaintiff] whole"), aff'd, 163 F.3d 598, 1998 WL 637274 (4th Cir. 1998) (table decision). But for Xerox's conduct, Hylind would have had access to this money during the back pay period and would have been able to earn interest not only on the principal amounts, but also on accumulated interest. Compounding the interest reflects this economic reality and reasonably furthers the goal of placing Hylind in the position where she would otherwise have been.
Unlike pre-judgment interest, which is left to the Court's discretion, post-judgment interest is governed by statute, see 28 U.S.C. § 1961; Quesinberry, 987 F.2d at 1031. Therefore, to the extent that any post-judgment interest may be due, it will be governed by the statutory rate.
E. Calculation of the Back Pay Award
Based on the above determinations, the Court calculates Hylind's back pay award as follows: Year Base Salary Compensation Compensation Offset Compensation + (Adjusted 3% (Base Salary + Offset by 6% Pre-judgment Annually) 8% Benefits) Disability Pay Interest Compounded (-$34,819 / Year) Annually Through Judgment (Sept. 2010) 1995 $77,037 $83,200 $48,381 $115,949 1996 $79,349 $85,696 $50,877 $115,029 1997 $81,729 $88,267 $53,448 $114,001 1998 $84,181 $90,915 $56,096 $112,877 1999 $86,706 $93,643 $58,824 $111,665 2000 $89,308 $96,452 $61,633 $110,376 2001 $91,987 $99,346 $64,527 $109,016 2002 $94,746 $102,326 $67,507 $107,596 Total $896,509 The Court, then, awards Hylind $896,509 in back pay and will enter judgment in that amount in her favor with respect to economic damages.
For a more detailed presentation of the Court's back pay award calculation, see attached Exhibit A, Detailed Back Pay Award Calculation.
This will, of course, be in addition to the $300,000 awarded as compensatory damages.
IV. Plaintiff's Motion for Injunctive Relief
Hylind seeks two types of injunctive relief. First, she seeks to enjoin Xerox from retaliating against her or any other Xerox employees (current or former) who testified on her behalf or otherwise supported her case. Second, she wants the Court to order Xerox to take company-wide steps to prevent situations like hers from occurring in the future. These steps would include: giving employees written "receipts" whenever they engage in protected activity: informing company employees about the receipt policy; notifying employees of the statute of limitations of potential legal claims they might have; encouraging employees who are not given receipts to file charges with the EEOC or some other appropriate administrative agency; allowing employees who engage in protected activities with respect to their managers to change managers; appointing an ombudsman to oversee discrimination policies: establishing a "hotline" for employees to make complaints of discrimination; keeping discrimination-related matters confidential and sanctioning employees who "gossip" about such matters: giving employees the option of receiving "no-fault severance packages" when discrimination matters become "too sensational:" and changing the language Xerox uses regarding how it handles complaints.
The Court declines to issue injunctive relief.
The Court understands it has certain discretion in this matter. "If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate." 42 U.S.C. § 2000e-5(g)(1). "Injunctive relief is a matter left to the discretion of a trial court," though the trial court must "exercise its discretion in light of the prophylactic purposes of the Act to ensure that discrimination does not recur." Spencer v. General Elec. Co., 894 F.2d 651, 660 (4th Cir. 1990). Injunctive relief is most appropriate "[i]n cases presenting abundant evidence of consistent past discrimination." See Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1561 (11th Cir. 1986). Conversely, injunctive relief is least appropriate where there is "no indication that defendants have indulged in any similar discrimination in the past, or that they are likely to do so in the future," such as in a case which "appears to represent an isolated incident." See E.E.O.C. v. Financial Assurance, Inc., 624 F. Supp. 686, 695 (W.D. Mo. 1985).
As to Hylind's request for an injunction preventing Xerox from retaliating against Hylind or those who helped her in this case, Title VII already prevents employers from retaliating against individuals who pursue or assist others in pursuing discrimination claims. 42 U.S.C. § 2000e-3(a) ("It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter."). This protection extends not just to current employees, but also to former employees. Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997). Absent evidence suggesting that Xerox intends to retaliate against Hylind or those who assisted her by participating in the suit, a further layer of protection in the form of an injunction is not necessary. See Does 1-7 v. Round Rock Indep. Sch. Dist., 540 F. Supp. 2d 735, 745-46 (W.D. Tex. 2007) (declining to grant an injunction which "would be nothing more than an injunction to `follow the law'" where it was unclear whether unlawful conduct would reoccur).
Hylind has suggested that Xerox can still retaliate against her by cutting off her disability benefits and that any decision to change or terminate her disability payments must be construed as retaliation. The Court, however, declines to rewrite the provisions of the disability plan or to dictate how it is to be administered. As indicated in footnote 2, supra, the Court makes no determination as to Hylind's continued eligibility for disability payments and leaves that determination to the plan administrator or other appropriate decisional authority in light of the terms and conditions of the plan, Hylind's medical status, applicable law, and any other relevant factors. Apart from this, again, Hylind remains protected against retaliation by both 42 U.S.C. § 2000e-3(a), as well as applicable provisions of the Employee Retirement Income Security Act of 1974, Pub.L. 93-406, 88 Stat. 829. As with Hylind's general concern regarding retaliation, absent evidence indicating that Xerox will unlawfully cancel her disability coverage once the case is over, adding an injunction on top of the other available protections already in place is unnecessary. See Round Rock, 540 F. Supp. 2d at 745-46.
In support of her claim that Xerox may retaliate against her through her disability benefits, Hylind relates an incident from 2004 when Xerox sent her a form letter erroneously telling her that she was eligible for Medicare benefits and that her disability payments would be offset by the Medicare benefits she would receive. It appears that when Hylind informed Xerox that she was not in fact eligible for Medicare, her disability pay was not reduced. Hylind says this was not simply an accident or a clerical error but was an intentional attempt to retaliate against and harass her. Aside from the fact that this "evidence" is outside the record, since the matter was resolved in Hylind's favor after the error was pointed out and her benefits were not reduced, Xerox appears well able to comply with its legal obligations.
As for Hylind's request for an injunction requiring Xerox to set new company-wide policies and procedures for handling discrimination cases, the Court finds such global injunctive relief inappropriate. This was not a "pattern or practice" suit brought under 42 U.S.C. § 2000e-6, and the suit did not address sex discrimination concerns at a company-wide level. Rather, the case focused on Hylind's singular experience. Wholesale injunctive relief might have been appropriate in a "pattern or practice" case or a class action with broad evidence shedding light upon company-wide conduct, if indeed there was any suggestion that Xerox had been engaged in widespread unlawful conduct. The unlawful conduct in the present case, however, was directed at only one individual, and it occurred over 15 years ago in a limited timeframe (early 1995) in a limited geographic area (suburban Maryland), and was committed by at most a few of Xerox's managers. In other words, this suit is not an appropriate vehicle for the type of broad injunction Hylind seeks. See Spencer, 894 F.2d at 660 (stating that "[t]his is not a case of systematic company-wide discrimination, but rather this case presents an isolated incident of one supervisor run amok" and declining to grant injunctive relief); Brown v. Trs. of Boston Univ., 891 F.2d 337, 361 (1st Cir. 1989) (vacating as too broad injunction applying to all faculty members of school when plaintiffs case only "established that she alone had been the victim of sex discrimination").
To be sure, the Court recognizes that one of the purposes of Title VII is to prevent conduct such as that suffered by Hylind from occurring in the future. See Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 546 (1999) (noting "Title VII's objective of motivating employers to detect and deter Title VII violations") (quotation marks and brackets omitted). But that deterrence will certainly flow from the magnitude of the jury verdict and the Court's decision in this case. Hylind has been awarded $300,000 in compensatory damages and $896.509 in back pay, and Xerox now faces the further prospect of attorney's fees. Though not as direct as an injunction, substantial awards such as these unquestionably motivate companies to ensure that their employment practices conform with the law, lest they face similar judgments in the future. See Albemarle, 442 U.S. at 417-18 (discussing how monetary judgments can provide "the spur or catalyst which causes employers and unions to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges of an unfortunate and ignominious page in this country's history") (quoting United States v. N.L. Indus., Inc., 479 F.2d 354, 379 (8th Cir. 1973)).
V. Plaintiff's Other Motions
Hylind has filed miscellaneous additional motions, including: Motion for the Court to Take Notice of New Legislation [Paper No. 353], Motion for the Court to Take Judicial Notice of New Supreme Court Decision [Paper No. 372], and Motion for Sanctions [Paper No. 363]. The first two seek various forms of relief, including permission for Hylind to amend her Complaint to add new claims, permission to reopen discovery and evidence, reconsideration of various prior decisions of the Court, and judgments notwithstanding the verdict (JNOVs) with respect to the claims for which the jury found in favor of Xerox and against Hylind. The final motion seeks sanctions against Xerox for alleged discovery violations. All these motions lack merit and may be denied with minimal discussion.
Hylind's first miscellaneous motion is based on the Lilly Ledbetter Fair Pay Act of 2009, 42 U.S.C. § 2000e-5(e)(3). That law altered the statute of limitations for filing claims of compensation discrimination. The present case, however, is not about compensation discrimination. Hylind's initial Complaint contained four counts: 1) hostile work environment sexual harassment; 2) quid pro quo sexual harassment; 3) retaliation; and 4) sex discrimination. There was no count for compensation discrimination. In any case, to the extent that Hylind suggests she may have been discriminated against in her pay, she never was able to flesh out such a claim in a timely fashion and none of the Court's prior decisions addressed the interplay between discriminatory compensation claims and the statute of limitations. The Court finds no reason to amend any of its previous decisions in light of the Lilly Ledbetter Fair Pay Act. Insofar as Hylind suggests the Act affects evidentiary matters, the Act deals only with the specific issue of the time for filing a compensation discrimination claim. It does not change or expand the rules of evidence, nor does it pertain to other types of claims. Finally, to the extent Hylind seeks leave to amend her Complaint to add new compensation discrimination claims, that request is denied. It is far too late to begin anew a case that began in this Court in January 2003 and is now at the post-trial stage. To quote the Court's Opinion of August 18, 2008 [Paper No. 340], which denied Hylind's previous post-trial motion to add claims, "[t]his case is over and will not be re-tried based on additional causes of action." Op. at 8. "This case has been fully litigated and is ready for closure." Id.
Xerox has filed a Motion to Strike [Paper No. 362] some of the exhibits attached to Hylind's motion discussing the Ledbetter Act. Since the Court is denying Hylind's motion, Xerox's Motion to Strike is MOOT.
In her second miscellaneous motion. Hylind contends that the Supreme Court's decision in Gross v. FBL Financial Services, 129 S.Ct. 2343 (2009). renders improper one of the jury instructions given by the Court. Specifically, she claims the Court should not have given a "pretext" instruction to the jury (requiring it to find that Hylind's gender was the determinative or but-for reason for Xerox's negative employment action or actions), but, instead, should have given the jury a "mixed-motive" instruction (which would have allowed the jury to find that the negative employment action was based on a mix of lawful and unlawful reasons, but which also would have provided Xerox a defense to the effect that it would have taken the same action against Hylind even if the discriminatory factors had not been present). In Gross, the Supreme Court determined that a mixed-motive instruction is not appropriate in an Age Discrimination in Employment Act ("ADEA") case. Id. at 2350. But, since this is a Title VII case, not an ADEA case, the Court finds that Gross in no way affects the Court's decision to give a pretext instruction in this case. In Title VII cases, a plaintiff may proceed under either a pretext theory or a mixed-motive theory. See Diamond v. Colonial Life Accident Ins. Co., 416 F 3d 310, 317-18 (4th. Cir. 2005) (holding that the contention that "all employment discrimination cases should be analyzed as mixed-motive cases" is "meritless"); Watson v. Se. Penn. Trans. Auth., 207 F.3d 207, 220 (3d Cir. 2000) (determining that both standards are viable and distinct ways of evaluating Title VII discrimination cases). Indeed, the Court gave Hylind a choice as to which theory she wished to proceed under, and she made the tactical decision to proceed under a pretext theory instead of a mixed-motive theory, presumably because the evidence appeared to justify it, and further because it denied Xerox the defense that it would have taken the same action against Hylind even without the discriminatory influence. Trial Tr. (June 25, 2007) 30:11-36:8 (charge conference discussing pretext and mixed-motive instructions). That this tactical decision may have resulted in findings for Xerox on certain counts does not constitute error requiring the Court to set aside the jury's verdict.
In her Motion for Sanctions, Hylind claims Xerox committed various discovery violations over the life of the case. Many of these claims appear to have been previously raised and rejected. See September 30, 2004 Order [Paper No. 115]; December 5, 2006 Order [Paper No. 200]. They are rejected here again. To the extent this motion raises new claims, they are denied as untimely. See Brandt v. Vulcan, Inc., 30 F.3d 752, 756 (7th Cir. 1994) (noting that while sanctions rule "does not establish any time limits within which a motion for sanctions must be filed, . . . unreasonable delay may render such a motion untimely," and denying post-trial motion for sanctions based on discovery violations); Mercy v. County of Suffolk, New York, 748 F.2d 52, 56 (2d Cir. 1984) (holding that a "motion for Rule 37 sanctions should be promptly made, thereby allowing the judge to rule on the matter when it is still fresh in his mind," and that "the motion should normally be deemed waived if it is not made prior to trial").
VI. Conclusion
Summing up:
Plaintiffs Motion for Economic Damages [Paper No. 298] is GRANTED IN PART and she is awarded $896,509 in back pay, allowing for compensation increases and interest, but setting off disability payments she received. An Order of Judgment will be entered in Hylind's favor and against Xerox in that amount, augmented by the award of $300,000 in compensatory damages, for a total of $1,196,509. The Motion for Economic Damages is DENIED in all other respects. Plaintiffs Motion for Injunctive Relief [Paper No. 297] is DENIED. Plaintiff's Motion for the Court to Take Notice of New Legislation [Paper No. 353] is DENIED. Plaintiff's Motion for the Court to Take Judicial Notice of New Supreme Court Decision [Paper No. 372] is DENIED. Plaintiffs Motion for Sanctions [Paper No. 363] is DENIED. Defendant's Motion to Strike [Paper No. 362] is MOOT.
The Court will entertain a motion from Hylind's former attorney for attorney's fees, to be filed as expeditiously as possible.
The Court emphasizes that it is Hylind's former attorney, Laurence S. Kaye, Esquire, who may file a motion for attorney's fees, not Hylind herself. Pro se plaintiffs are not entitled to recover attorney's fees for work they undertake on their own cases, and they are not otherwise entitled to compensation for the work they themselves perform pro se. See, e.g., Hawkins v. 1115 Legal Service Care, 163 F.3d 684, 694-95 (2d Cir. 1998).
A separate Order will ISSUE.
Exhibit A — Detailed Back Pay Award Calculation
1991 1992 1993 1994 Average $ 100,565.00 $ 56,670.00 $ 58,541.00 $ 68,866.00 $ 71,160.50 Actual salaries (1995 dollars): 1991 1992 1993 1994 Average $ 113,186.79 $ 61,924.84 $ 62,106.15 $ 70,931.98 $ 77,037.44 Adjusted base salaries: 1995 1996 1997 1998 1999 2000 2001 2002 Base amount: $ 77,037.44 $ 77,037.44 $ 77,037.44 $ 77,037.44 $ 77,037.44 $ 77,037.44 $ 77,037.44 $ 77,037.44 With annual increase: $ 77,037.44 $ 79,348.56 $ 81,729.02 $ 84,180.89 $ 86,706.32 $ 89,307.51 $ 91,986.73 $ 94,746.33 With benefits: $ 83,200.44 $ 85,696.45 $ 88,267.34 $ 90,915.36 $ 93,642.82 $ 96,452.11 $ 99,345.67 $ 102,326.04 Disability offset: $ (34,819.00) $ (34,819.00) $ (34,819.00) $ (34,819.00) $ (34,819.00) $ (34,819.00) $ (34,819.00) $ (34,819.00) Net: $ 48,381.44 $ 50,877.45 $ 53,448.34 $ 56,096.36 $ 58,823.82 $ 61,633.11 $ 64,526.67 $ 67,507.04 With interest: $ 115,948.92 $ 115,029.02 $ 114,001.48 $ 112,876.90 $ 111,665.18 $ 110,375.51 $ 109,016.45 $ 107,595.97 Total, with interest: $ 896,509.43 Annual increase %: 3.00% Pre-judgment interest %: 6.00% Benefits %: 8.00%
ORDER
Upon Consideration of the various pending motions in this case, and the corresponding opposition thereto, it is, for the reasons stated in the accompanying Opinion, this 17th day of September, 2010
ORDERED.
1. Plaintiff's Motion for Economic Damages [Paper No. 298] is
GRANTED IN PART and
DENIED IN PART;
2. Plaintiff's Motion for Injunctive Relief [Paper No. 297] is
DENIED;
3. Plaintiff's Motion for the Court to Take Notice of New Legislation [Paper No. 353] is
DENIED;
4. Plaintiff's Motion for the Court to take Judicial Notice of New Supreme Court Decision [Paper No. 372] is
DENIED;
5. Plaintiff's Motion for Sanctions [Paper No. 363] is DENIED; and
6. Defendant's Motion to Strike [Paper No. 362] is MOOT.
ORDER OF JUDGMENT
It is, for the reasons stated in the accompanying Opinion, this 17th day of September, 2010
ORDERED.
1. Judgment is ENTERED in favor of Plaintiff and against Defendant.
2. The Court will entertain a motion for attorney's fees from Plaintiff's former attorney, Laurence S. Kaye, Esquire, to be filed as expeditiously as possible.