## Facts

- In June 2001, Marinell Richardson was terminated from Tricom Pictures & Productions, Inc.
- Richardson sued Tricom in federal district court, asserting claims under Title VII of the Civil Rights Act of 1964 and other state and federal laws, alleging (among other theories) a hostile work environment and retaliation for complaints.
- While the case was pending, Richardson obtained substantially equivalent employment with WLRN, Inc. at an annual salary of $32,000—about $2,000 more than her salary at Tricom.
- Richardson was terminated from WLRN after approximately three months for failing to cooperate with and respect other employees.
- Richardson later obtained another substantially equivalent job with Barton G., also at a $32,000 annual salary, and was later terminated for reasons not established in the record summaries.
- In 2003, the case was tried to a jury. The jury found for Tricom on most claims but found Tricom liable for retaliatory discharge under Title VII.
- The jury also returned an advisory back-pay award of $20,000 under Title VII.
- After trial, Richardson moved to increase equitable relief (including back pay), and Tricom filed a cross-motion asking the court to reduce the advisory back-pay figure and for remittitur.
- The court addressed the parties’ post-trial motions in an order focused on equitable remedies, back pay, and mitigation.

## Issues

1. How should the court calculate Title VII back pay as an equitable remedy when the jury’s back-pay award is advisory?
2. How do interim earnings from post-termination, substantially equivalent employment affect the amount of back pay under 42 U.S.C. § 2000e-5(g)(1)?
3. Did Tricom establish a failure-to-mitigate defense based on Richardson’s efforts to obtain and keep suitable employment after discharge, warranting a reduction in back pay?

## Decision

- The court treated Title VII back pay as an equitable remedy for the judge to decide and did not treat the jury’s back-pay number as binding.
- The court applied the standard back-pay method: determine what Richardson would have earned absent the retaliatory discharge and subtract actual interim earnings.
- The court considered Tricom’s mitigation arguments, including evidence related to Richardson’s subsequent substantially equivalent employment and the circumstances of her separation from those jobs.
- The court adjusted the back-pay analysis to account for interim earnings and amounts “earnable with reasonable diligence,” resulting in a reduction from the amount sought by Richardson.

## Legal Principles

- Back pay under Title VII is an equitable remedy determined by the court under 42 U.S.C. § 2000e-5(g)(1); a jury’s back-pay award may be advisory.
- In calculating back pay, the court determines what the employee would have earned absent the unlawful employment action and subtracts the employee’s actual interim earnings.
- Title VII requires that “interim earnings or amounts earnable with reasonable diligence” reduce back pay.
- Failure to mitigate is an affirmative defense; the employer bears the burden to show the plaintiff did not exercise reasonable diligence to obtain suitable employment and to keep a suitable job once obtained.
- If the employer proves the plaintiff did not make reasonable efforts to obtain work, the employer need not also prove that substantially equivalent jobs were available during the period at issue.

## Conclusion

Richardson held Tricom liable for retaliatory discharge under Title VII, but the court—acting in equity—independently evaluated back pay, offset interim earnings, and reduced the recovery based on the statutory mitigation requirement and the employer’s showing that the plaintiff did not act with reasonable diligence in obtaining and maintaining suitable post-termination employment.


Richardson v. Tricom Pictures & Productions, Inc., 334 F. Supp. 2d 1303 (2004)