Emmanuel Joseph v. Publix Super Markets, Inc. , 151 F. App'x 760 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Nos. 04-12042 & 04-13262 September 16, 2005
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 00-07327 CV-DMM
EMMANUEL JOSEPH,
Plaintiff-Appellee,
versus
PUBLIX SUPER MARKETS, INC.,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(September 16, 2005)
Before TJOFLAT, PRYOR and ALARCÓN*, Circuit Judges.
PER CURIAM:
Publix Super Markets, Inc. (“Publix”) appeals from the denial of its motion
for judgment as a matter of law pursuant to Rule 50(b)(2)(B) of the Federal Rules
of Civil Procedure1, and the final judgment entered by the District Court. The jury
found that Emmanuel Joseph’s race and color were substantial or motivating
factors in denying him a transfer to a higher volume store that would increase his
compensation. Publix also seeks reversal of the orders granting back pay and front
pay, attorney’s fees and costs, as well as prejudgment interest.
Publix contends that the evidence presented at trial was not legally
sufficient for a reasonable jury to find that Mr. Joseph was not transferred to a
higher volume store because of his race. Publix also seeks reversal of the District
Court’s final judgment based on the prejudicial impact of its erroneous evidentiary
rulings.
We affirm the order denying the motion for judgment as a matter of law
1
Fed. R. Civ. P 50(b) states:
Renewing Motion for Judgment After Trial; Alternative Motion for
New Trial. If, for any reason, the court does not grant a motion for
judgment as a matter of law made at the close of all the evidence, the
court is considered to have submitted the action to the jury subject to
the court's later deciding the legal questions raised by the motion. The
movant may renew its request for judgment as a matter of law by
filing a motion no later than 10 days after entry of judgment--and may
alternatively request a new trial or join a motion for a new trial under
Rule 59. In ruling on a renewed motion, the court may:
(1) if a verdict was returned:
(A) allow the judgment to stand,
(B) order a new trial, or
©) direct entry of judgment as a matter of law; or
(2) if no verdict was returned:
(A) order a new trial, or
(B) direct entry of judgment as a matter of law.
2
because we conclude that a reasonable jury could have found, based on sufficient
relevant and admissible evidence, that Publix discriminated against him because
he is an African-American. We reverse the District Court’s final judgment and
remand for a new trial, however, because it abused its discretion in admitting
evidence whose prejudicial effect substantially outweighed its probative value.
I
Mr. Joseph was promoted to the position of produce manager for Publix in
November 1993. He was assigned to a “no-chart store.” Publix rates its stores on
sales volume and determined the monetary bonuses a manager was eligible to
receive on the store’s earnings and profitability. No-Chart Stores were stores that
had less than $20,000 in sales volume. Category C Stores were stores that had
between $20,000 and $40,000 in sales volume. Category A stores were stores that
had over $80,000 in sales volume.
Mr. Joseph filed this action in the District Court on December 8, 2000
pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §
20000 et seq., and the Civil Rights Act of 1871, 42 U.S.C. § 1981. He alleged that
he had been repeatedly denied a transfer to a Category A Store because of his race
and color. In his complaint he requested compensatory damages, payment for
emotional distress and mental anguish, back pay and front pay, prejudgment
3
interest, as well as attorney’s fees and costs.
Prior to the filing of this action, the Equal Employment Opportunities
Commission (“EEOC”) filed a claim against Publix for pattern and practice
discrimination. The EEOC claim was settled. Over Publix’s objection, Mr. Joseph
offered into evidence a document referred to at trial as the “Kemp Notice.” It was
written by Mr. Howard Jenkins, Publix’s Chief Executive Officer. The Kemp
Notice summarized the terms and conditions of the settlement agreement.
The district court allowed Mr. Joseph to enter the following quotation from
Mr. Howard’s letter into evidence:
So, as the EEOC investigation progressed, the EEOC
focused upon the rate of promotions of blacks from full-
time employment into retail management jobs. Based upon
their analyses, EEOC contended that in some years, and in
some locations, promotions of full time black associates to
or within management lagged behind the rate of promotion
of non-black associates.
At trial, Mr. Joseph testified that he overheard former Publix district
manager Richard Cabel refer to Mr. Joseph as a “nigger.” Specifically, Mr. Joseph
testified that when he asked Mr. Cabel about a transfer to a new store, his reaction
was “this nigger keep on bugging them about a promotion and he will never
amount to be nothing.” Publix objected to this testimony on the grounds that it was
hearsay, elicited by someone who was not a decision maker. Mr. Cabel was Mr.
4
Joseph’s district manager in 1992 or 1993. Mr. Cabel retired from working for
Publix prior to the rejection of Mr. Joseph’s requests for a transfer at issue in this
case.
In response to a special verdict form, the jury found by a preponderance of
the evidence that race was a substantial and motivating factor in the denial of Mr.
Joseph’s request for a transfer to a higher volume store. The jury did not award
Mr. Joseph any damages for emotional pain and mental anguish. The District
Court awarded Mr. Joseph back and front pay, attorney’s fees and costs, as well as
prejudgment interest.
Publix has timely appealed the final judgment of the District Court. This
Court has appellate jurisdiction pursuant to 28 U.S.C. § 1291.
II
We first consider Publix’s contention that the District Court erred in
denying its motion for judgment as a matter of law. Were we to agree with Publix
regarding this issue, we would be required to reverse the judgment and instruct the
District Court to enter a final judgment in favor of Publix without deciding
whether it erred in its evidentiary rulings and in its award of back pay, front pay,
attorney’s fees and costs, as well as prejudgment interest.
Publix contends, based on discrete theories, that the District Court erred in
5
denying its motion for judgment as a matter of law. First, it argues that Mr. Joseph
offered evidence of job discrimination based on a pattern and practice instead of
an individual disparate discriminatory treatment claim. Second, Publix maintains
that Mr. Joseph failed to present sufficient evidence to establish a prima facie case
of individual employment discrimination for failure to transfer him to a store
where he would receive higher pay. Finally, Publix asserts that Mr. Joseph failed
to demonstrate that its reasons for failing to transfer Mr. Joseph were pretextual.
A
Publix contends that “[w]ith the court’s approval, Plaintiff tried a pattern-
and-practice case, all but ignoring his own individual claim.” Appellant’s Initial
Brief at 27 n.10 (emphasis added). Publix presented a similar contention in
attacking the allegations of the complaint in its unsuccessful motion for summary
judgment.
Mr. Joseph alleged in his complaint that he was denied a transfer to a
Category A Store based on his race and color. At trial, he presented evidence that
his repeated requests for a transfer were not granted, notwithstanding the fact that
he had more experience and was better qualified than non-African-Americans who
were transferred to Category A Stores as produce managers.
Publix appears to contend that the fact that Mr. Joseph presented the
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testimony of three other employees to demonstrate that Publix had a pattern and
practice of discriminating against African-Americans converted his individual
disparate treatment claim into a disparate impact claim. We disagree.
Pattern and practice evidence is admissible to demonstrate that an
employer’s employment decision conformed to a general policy of discrimination
against African-Americans and that “the presumptively valid reasons for [an
employee’s] rejection were in fact a coverup for a racially discriminatory
decision.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805 (1973). As we
explain below, Mr. Joseph presented sufficient evidence to persuade a reasonable
jury that his requests for a transfer were denied because of his race and color.
Evidence of Publix’s general policy and practice with respect to requests for a
transfer to Category A Stores was admissible to demonstrate that Publix’s reasons
for denying Mr. Joseph’s requests were pretextual. Publix has failed to
demonstrate that Mr. Joseph abandoned his disparate treatment claim by offering
evidence of Publix’s discriminatory pattern and practice to rebut Publix’s evidence
of a legitimate business reason for declining to transfer Mr. Joseph.
B
Publix further maintains that Mr. Joseph failed to present sufficient
evidence to demonstrate a prima facie case of employment discrimination of
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disparate treatment because of his race and color. In their presentations to this
Court, both parties have ignored the rule announced in United States Postal
Service Board of Governors v. Aikins, 460 U.S. 711 (1983), that the question
whether a plaintiff has failed to establish a prima facie case is not relevant “when
the defendant fails to persuade the district court to dismiss the action for lack of a
prima facie case, and responds to the plaintiff’s proof by offering evidence of the
reason for the plaintiff’s rejection[.] [T]he factfinder must then decide whether the
rejection was discriminatory within the meaning of Title VII. At this stage, the
McDonnell-Douglas presumption drops from the case.” Id. at 714-15 (internal
quotations and footnote omitted); see also Cleveland v. Home Shopping Network,
Inc., 369 F.3d 1189, 1194 (11th Cir. 2004) (holding that, in a suit brought under
the Americans with Disabilities Act, “[a]fter a trial on the merits, an appeals court
should not revisit whether the plaintiff established a prima facie case. . . . The only
relevant question becomes whether the [employee’s] termination was motivated by
her disability.”).
C
Thus, in a disparate treatment case fully tried on the merits, our review of
the validity of a judgment as a matter of law is limited to the question whether the
plaintiff presented sufficient evidence to prove each element of his or her claim.
8
Collado v. United Parcel Service Co., No. 04-11297, 2005 U.S. App. LEXIS
15850, at *18 (11th Cir. August 2, 2005). Publix maintains that the district court
erred in denying his motion for judgment as a matter of law because Mr. Joseph
failed to present sufficient evidence to persuade a reasonable jury that it failed to
transfer Mr. Joseph to a Category A Store because of his race and color.
After the jury returned its verdict, Publix renewed its motion for judgment
as a matter of law pursuant to Rule 50(b)(2)(B). The District Court denied the
motion on February 12, 2003. A judgment as a matter of law may be issued by a
district court if “there is no legally sufficient evidentiary basis for a reasonable
jury” to find for the non-moving party or any element of the cause of action. Fed.
R. Civ. P. 50(a)(1).
If, for any reason, the court does not grant a motion for
judgment as a matter of law made at the close of all the
evidence, the court is considered to have submitted the
action to the jury subject to the court’s later deciding the
legal questions raised by the motion.
Fed. R. Civ. P. 50(b).
A district court may enter judgment as a matter of law if a
party has been fully heard on an issue and there is no
legally sufficient basis for a reasonable jury to find in favor
of that party on that issue. When considering such a
motion, the court must evaluate all of the evidence,
together with any logical inferences therefrom, in the lights
most favorable to the nonmoving party.
9
Carter v. DecisionOne Corp., 122 F.3d 997, 1003 (11th Cir. 1997).
In this matter, the District Court correctly instructed the jury regarding the
elements of a Title VII claim. Jury Instruction No. 6 reads as follows:
In this case the Plaintiff makes a claim under the
Federal Civil Rights statutes that prohibit employers from
discriminating against employees in the terms and
conditions of their employment because of the employee’s
race.
More specifically, the Plaintiff claims that he was
denied a transfer to a higher volume store by the Defendant
because of the Plaintiff’s race.
The Defendant denies that the Plaintiff was
discriminated against in any way and asserts that the
Plaintiff was transferred to a higher volume store and was
offered a second transfer to an even higher volume store.
In order to prevail on this claim, the Plaintiff must
prove each of the following facts by a preponderance of the
evidence:
First: That the Plaintiff was denied a
transfer to a higher volume store
by the Defendant; and
Second: That the Plaintiff’s race was a
substantial or motivating factor
that prompted the Defendant to
take that action.
In Collado, this Court noted that the first step of the McDonnell-Douglas
burden-shifting framework of a prima facie claim of employment discrimination
includes components that are not elements of a Title VII claim. Collado, 2005 U.S.
10App. LEXIS 15850, at *28. “At the end of a trial . . . the question whether the
plaintiff properly made out a prima facie case . . . is no longer relevant.” Id.(citation and quotation marks omitted). This rule “serves as a bar, prevents a look
back, where a component of the prima facie case that is not an element of the
claim is concerned.” Id. In Collado, this Court illustrated the difference between
the circumstantial evidence – evidence that creates a rebuttable presumption of
discriminatory motive under McDonnell-Douglas – and the elements of a Title VII
claim, as follows:
An example that comes to mind is a Title VII
discriminatory failure to promote claim. The components
of the prima facie case are: (1) that the plaintiff is a
member of a protected class; (2) that he was qualified for
and applied for the promotion; (3) that he was rejected; and
(4) that other equally or less qualified employees who were
not members of the protected class were promoted. Combs,
106 F.3d at 1539 n.11. The fourth component, the one
requiring outside-the-class comparators, is not an element
of the claim itself. Once a district court has denied a Rule
50(a) motion for failure to show a prima facie case, neither
that court nor this one may conclude that judgment as a
matter of law should be granted under Rule 50(b) solely
because no outside-the-class comparators were shown.
Although the absence of comparators may be relevant to
whether the plaintiff has proven that his failure to be
promoted was the result of discrimination, it is not
necessarily a claim-killing fact at the post-Rule 50(b) stage.
Difficult as it might be to prove, a promotion could be
denied for discriminatory reasons even though no one
outside the protected class was promoted – even though
11
there were no comparators and therefore no prima facie
case.
Id. at *29-30.
Publix contends that Mr. Joseph failed to identify “a specific position that
he was denied as a result of any alleged discrimination.” Appellant’s Initial Brief
at 31. Clearly, if a plaintiff does not request a transfer to a vacant position, he or
she cannot demonstrate that the failure to transfer was based on race or color.
“Unless the individual plaintiff can point to some specific instance of
discrimination, there is no wrong for the court to remedy.” Carmichael v.
Birmingham Saw Works, 738 F.2d 1126, 1131 (11th Cir. 1984).
Mr. Joseph presented evidence that would support an inference that non-
African-American’s who had less experience than he had as a produce manager
were transferred to Category A. Stores. He also presented evidence that no
African-American was transferred to serve as a produce manager in a Category A
Store until after he filed a complaint with the EEOC. Because Publix did not
publish a notice of available positions for produce manager, however, Mr. Joseph
could not identify each specific transfer he was denied as a result of racial
discrimination.
Tanya Piniero Brown was called as witness by Mr. Joseph. She testified that
12
she was a human resources investigator for Publix. She stated that between 1993
and 1997, Publix did not publish a notice to its employees when vacancies in
produce manager positions in existing stores became available. Ms. Brown also
stated that Publix did not have a testing process for transfers to higher volume
stores. She further testified that the only African-American transferred to a
produce manager position at a high volume store was Albert Brown. Mr. Brown
was transferred in March 1999, after Mr. Joseph filed a complaint with the EEOC
in November 1998 alleging discriminatory treatment by Publix against African-
Americans because of their race and color. Prior to Mr. Brown’s transfer to a
Category A store, no African-American produce manager had served as such in a
Category A Store.
Mr. Joseph testified that he trained Randy Quinn as a produce manager. Mr.
Quinn was thereafter transferred to Store 432, a Category A Store, while Mr.
Joseph was transferred to a Category C Store. Other white employees who were
serving as produce clerks received transfers to higher volume stores while Mr.
Joseph was passed over.
After Mr. Joseph filed a claim of discriminatory treatment with the EEOC in
November 1998, he was offered a transfer to Store 267, a Category A Store. Mr.
Joseph requested time to speak to his attorney and his wife before he could make a
13
decision. He was given twenty minutes to do so. Mr. Joseph was not able to
contact his attorney. He did contact the produce manager at Store 267 to find out
the volume of business in the produce department. Mr. Joseph was informed that
the volume was good but the bonus he would receive was not much different than
he was receiving in his present position at Store 114. Mr. Joseph was also told that
in about five or six months Publix was going to open a new store about two miles
away which would have a negative impact on the sales volume at Store 267. After
receiving this information, Mr. Joseph declined the transfer to Store 267. On
cross-examination, Mr. Joseph stated he wanted to confer with his attorney about
the transfer offer because it did not include reimbursement for his attorney’s fees
or compensation for all his emotional distress.
Contrary to Publix’s contention, Mr. Joseph did present evidence of specific
transfers to Category A Stores that he was denied before he filed his claim with the
EEOC. He presented evidence that he was denied a transfer to Category A Store
90 in 1999. Publix offered evidence that it did not offer the position to Mr. Joseph
because “Mr. Joseph had not expressed any interest in a transfer to district
manager Glass until after the vacancy had been filled.” Specifically, Mickey Glass,
who had the authority to make the transfer decision, testified that before he
decided who would fill the opening at Store 90, Mr. Joseph had not made a
14
transfer request. Publix did not offer any evidence to demonstrate that it posted a
notice that there was a vacancy at Store 90.
Mr. Joseph also presented evidence that a vacancy at Store 70, a Category A
Store, was filled in July of 1999 by Shakir Hussein. Mr. Hussein was appointed as
a produce manager in 1995. Thus, he had two years less experience in that position
than Mr. Joseph. A reasonable jury could have concluded that Mr. Joseph was not
transferred to Category A Store 70 because of Publix’s highly informal procedures
for transfers to higher volume stores enabled it to engage in highly subjective and
discriminatory employment decisions. “The failure to establish ‘fixed or
reasonably objective standards and procedures for hiring’ is a discriminatory
practice.” Watson v. National Linen Service, 686 F.2d 877, 881 (11th Cir. 1982)
(quoting Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377, 1382 (4th
Cir. 1972).
Viewing the evidence in the light most favorable to Mr. Joseph, the record
shows that he repeatedly informed his Publix supervisors, orally and in writing,
that he wanted a transfer to the next available position as a produce manager.
Without notice of vacant positions, or an objective criteria for eligibility for a
transfer to a Category A Store, it was not possible for Mr. Joseph to apply for a
transfer to a specific location before it was filled.
15
In Carmichael, this Court held that the failure of an employer to use formal
procedures for posting notice of available promotions or for determining who
would be offered a promotion “can lead to racial discrimination, both because
important information may be available only to whites and because such
procedures place no check on individual biases.” Carmichael, 738 F.2d at 1133.
This Court also noted in Carmichael that “when there is not formal notice of the
job’s availability, the plaintiff may have no means within his own knowledge of
showing whether the employer considered him or not.” Id. We are persuaded that
the principles announced in this Court’s Title VII jurisprudence concerning hiring
and promotions also requires employers to post adequate notice of vacant
positions that are available for lateral transfer to better paying jobs, and to
promulgate objective standards for an employer to determine his or her eligibility
and ranking in order to provide an employee with access to facts that may
demonstrate a discriminatory animus. Because Publix failed to post notice of
vacancies for produce managers in higher volume stores, Mr. Joseph was not
required to demonstrate that he asked for a transfer “when he did not know about
and when there was no formal mechanism for expressing his interest.” Id. at 1132-
33.
Mr. Joseph presented evidence at trial that he had positive performance
16
reviews as a produce manager, that he was equally, if not more, qualified than the
white employees that were promoted to Category A Stores over him, and that three
other black produce managers with similar qualifications to Mr. Joseph had also
been denied transfers to Category A Stores. Mr. Joseph also submitted evidence
that in the twenty-year period prior to the date he filed his claim, Publix never
promoted a black produce manager to a Category A Store and that it had no black
store managers, district managers, regional managers or executives.
Viewed in the lights most favorable to Mr. Joseph, the evidence presented at
trial of (1) the failure to post notice of vacancies in Category A Stores, (2) the
failure to follow objective procedures in rating the employees who were eligible
for such transfers, (3) the failure to honor Mr. Joseph’s repeated requests for a
transfer, and (4) the failure to offer to any African-American such a position prior
to the initiation of EEOC procedures by Mr. Joseph was sufficient to persuade a
reasonable jury to find that his race was a substantial or motivating factor in
Publix’s failure to transfer him to a Category A Store. The district court did not err
in denying the motion for Rule 50(b)(2)(B) for judgment as a matter of law.
III
Publix seeks reversal of the judgment in favor of Mr. Joseph on the ground
that the district court committed prejudicial error in admitting portions of the
17
Kemp Notice in violation of 42 U.S.C. § 2000e-5(b), and also receiving evidence
of racial slurs.
A district court’s evidentiary rulings are reviewed under the abuse of
discretion standard. Piamba Cortes v. American Airlines, 177 F.3d 1272, 1305-06
(11th Cir. 1999). This Court has explained that
[w]e review a district court’s ruling on the
admissibility of evidence for abuse of discretion, and
evidentiary rulings will be overturned only if the moving
party establishes that the ruling resulted in a “substantial
prejudicial effect.” Judd v. Rodman, 105 F.3d 1339, 1341
(11th Cir.1997). When applying an abuse of discretion
standard, “we must affirm unless we at least determine that
the district court has made a ‘clear error of judgment,’ or
has applied an incorrect legal standard.” SunAmerica Corp.
v. Sun Life Assurance Co. of Canada, 77 F.3d 1325, 1333
(11th Cir.1996) (citation omitted).
Id.42 U.S.C. §2000e-5(b) provides in part:
If the Commission determines after [an] investigation that
there is reasonable cause to believe that the charge [of
unlawful employment practices] is true, the Commission
shall endeavor to eliminate any such alleged unlawful
employment practice by informal methods of conference,
conciliation, and persuasion. Nothing said or done during
and as part of such informal endeavors may be made
public by the Commission, its officers or employees, or
used as evidence in a subsequent proceeding without the
consent of the persons concerned.
18
42 U.S.C. §2000e-5(b) (emphasis added). Because the excerpted portion of the
Kemp Notice clearly reiterated something “said or done” by the EEOC, it was
inadmissible “as evidence in a subsequent proceeding.” See Olitsky v. Spencer
Gifts, Inc., 842 F.2d 123, 126 (5th Cir. 1988) (reviewing plaintiff’s age
discrimination case brought under Title VII, and holding that Section 706(b)
“clearly prohibits any use of EEOC conciliation material in subsequent litigation,
even by the parties to the agency proceeding”). In light of this holding, it is
unnecessary for us to determine whether the Kemp notice should not have been
admitted for the additional reasons articulated by Publix.
Publix maintains that the testimony regarding Mr. Cabel’s reference to Mr.
Joseph as a “nigger” was not relevant because Mr. Cabel was a supervisor who
retired from Publix prior to Publix’s alleged discrimination against Mr. Joseph
between 1996 and 1999. We agree. Because of the temporal remoteness of the
racial slur, and the fact that it was uttered by a person who had no role in
determining whether Mr. Joseph’s requests for a transfer should be honored, the
statement was not relevant to prove any element of Mr. Joseph’s Title VII claim.
Pursuant to Rule 402 of the Federal Rules of Evidence, “[e]vidence which is not
relevant is not admissible.” Furthermore, admission of the racial slur was highly
prejudicial and should have been excluded under Rule 403 even if the District
19
Court concluded in the exercise of its discretion that it was relevant; the
statement’s “probative value, if any, was substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the jury . . . .”
Fed.R.Evid. 403.
The cumulative effect of the erroneous admission of the Kemp Notice and
the racial slurs by a person who did not participate in the transfer decisions at
issue in this case had a substantial prejudicial effect. The jury may have viewed
Mr. Howard’s recitation of the EEOC’s contention of discrimination as a
concession of liability to Mr. Joseph by Publix. Mr. Joseph’s counsel argued to the
jury that the excerpt from the Kemp Notice “confirmed the racism of [Publix].”
The admission of the racial slurs may have caused the jury to infer that the
decision makers at Publix were biased against African-Americans. Accordingly,
we conclude that the district court abused its discretion in admitting evidence of
the EEOC’s contention in unrelated settlement proceedings, and allowing the jury
to hear what Publix has properly characterized as noxious racial slurs. Because of
the prejudicial impact of these erroneous rulings, we conclude that we must set
aside the judgment. Since the judgment must fall, we also must vacate the award
of back pay and front pay, attorney’s fees and costs, and prejudgment interest.
For the guidance of the parties and the district court in the event of a retrial,
20
we address Publix’s contention that the district court abused its discretion in
calculating its award of back pay. The district court based its calculation of back
pay on the difference between Mr. Joseph’s average bonuses at low volume stores
and the 1997 bonus of Chris Teague, which represented the highest bonus of any
produce manager during the 1996-99 period. There is no evidence, however, that
Mr. Joseph would have earned the equivalent of Mr. Teague’s bonus for six
consecutive years if he had not been denied a transfer. An award of back pay is
designed to make a plaintiff whole, not to give the plaintiff a windfall or to punish
the employer. Franks v. Bowman Trans. Co., 424 U.S. 747, 763-66 (1976).
The district court also erred in awarding Mr. Joseph back pay from the onset
of the limitations period for his § 1981 action and the date of the judgment. Back
pay is designed to “place the injured party in the position he or she would have
been in absent the discriminatory actions.” EEOC v. Smith Pontiac GMC, Inc., 896
F.2d 524, 529 (11th Cir. 1990) (quotations omitted). The district court should have
calculated Mr. Joseph’s back pay with reference to the first discriminatory act
within the limitations period, rather than with reference to the onset of the
limitations period.
The parties shall bear their own costs.
AFFIRMED in part, and REVERSED in part.
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