*4 that, because of her fail- informed HATCHETT, Chief Judge: questions, to answer his DCYS would ure successfully polygraph her to take a examina- Appellee require Rhonda Lathem day, during prelimi- next appellant Georgia Department sued of Ju- tion. The Justice, examin- Department nary polygraph venile interview with the Chil- f/k/a (DCYS) er, & dren Youth Services for Title Lathem admitted that she had lied questioned sex when he her about her appeals VII discrimination. DCYS Nix The evidentiary relationship Cary, two of the district rul- with and Beavers. court’s then ings, speak of its mo- examiner called Brendle in to court’s denial tions for with Lathem. Lathem she again as a matter of law and admitted * Keith, parties dispute do not was a Honorable J. U.S. Cir- that Beaver Damon Senior Circuit, Judge by sitting cuit for the stayed Sixth DCYS client when at Lathem's he designation. house. parties Cary 1. The debate was whether during emancipation. client his boys stay at
let her on house several DCYS did begin any re- investigation occasions. Brendle prepared an internal garding the relationship. investigation report for Nix detailing his Several later, months DCYS investigat- findings regarding Lathem’s misconduct. ed Smith when several DCYS mem- staff In June apparently after Brendle bers accused him of additional serious report, issued his Nix gave nevertheless misconduct, including having a sexual re- Lathem a favorable evaluation and recom- lationship juvenile clients, with possessing her mended for a merit On increase. Oc- pornographic material, wiretapping, en- 29, 1993, however, tober Nix suspended gaging in hire, arson for smuggling drugs pay, citing with Lathem’s rela- and failure perform job his duties. tionship Cary with and Beavers and her Brendle headed the investigation and ulti- “failure to cooperate” with a DCYS inves- mately uncovered evidence of Smith’s tigation. DCYS terminated Lathem’s em- misconduct. Although initially sus- ployment 15,1994. on January pended Smith with while the investi- Lathem filed a charge of discrimination gation was underway, DCYS later rein- with the Equal Employment Opportunity stated him and transferred him (EEOC) Commission and Georgia’s Com- Rome, Georgia DCYS office. A short mission on Equal (CEO), Opportunity al- later, time Smith voluntarily resigned. *5 that leging DCYS against discriminated that contends Smith resigned while her based sex on because DCYS had not the investigation was still underway, and Smith, terminated Larry a male employee that if Smith had not resigned, DCYS whom she contended was similarly-situat- would have taken disciplinary action ed and had more egregious committed vio- against him, perhaps terminating his em- lations of DCYS’s anti-fraternization rule. ployment. Lathem, hand, on the other Smith was a DCYS unit director and was asserts that after DCYS transferred Lathem’s supervisor. direct Shir- Smith to office, the Rome Nix informed ley MeGarity reported to Nix that Smith her and other employees that the investi- was having an inappropriate relationship gation of Smith was over. with her daughter, Jones, Rhonda a DCYS The EEOC and the CEO both investi- client who was then years fifteen old.2 gated complaint.4 Lathem’s The CEO re- MeGarity saw Smith and Jones sitting in a port that concluded reasonable cause did together, car which was a violation of not exist to believe that DCYS violated the DCYS policy. Nix confronted Smith about Fair Employment Practices Act of 1978. these charges, and Smith denied the See Ga.Code Ann. § 45-19-29. The charges.3 According to DCYS’s version of EEOC also rendered a no-cause determi- events, Nix then requested that nation and issued Lathem a right-to-sue MeGarity give him names of people with 19,1995. letter on January whom he could speak regarding her allega- tions of Smith’s misconduct. DCYS II. PROCEDURAL HISTORY claimed that MeGarity never contacted Nix with any follow-up information to On September 18, 1995, counter Lathem filed a Smith’s denial of the allegations, and Title this VII action alleging that DCYS en- was the reason that Nix did not gaged initiate an in sex discrimination through dispa- official investigation of Smith. rate discipline, and also alleging various claims that MeGarity did speak with Nix state law claims. On 1, 1996, November again after the initial allegation, but that the district court denied DCYS’s motion who headed disciplinary proceed- 4.Lathem contends that investigators ings Lathem, against was Smith’s direct su- failed to important interview witnesses and pervisor. specific make findings regarding her case. 3. Notably, Smith later married Jones. law, as a matter of or judgment to the Title summary judgment as VII (3) alternative, trial;
claim, pendent Lathem’s a new La- admitting but dismissed also claims. The testimony regarding discriminatory state law them’s DCYS’s motion for reconsideration alleges denied acts that DCYS occurred outside juryA summary judgment ruling. the statute of limitations for a Title VII trial, During action; (4) the district trial commenced. admitting testimony Lathem’s court denied DCYS’s motion for allegedly pretrial contradicted the or- law, also denied DCYS’s (5) as a matter of her pleadings; awarding der and La- motion to introduce Lathem’s no-cause de- (6) them back pay; granting into terminations evidence. costs. trial,
During
regarding
Lathem testified
employ-
of another male
discipline
DCYS’s
DISCUSSION
IV.
ee,
Reed,
engaged
alleged
Mark
whom she
Evidentiary
A.
determinations
pre-
in conduct similar to Lathem’s. The
allegation
trial
Lathem’s
order contained
DCYS first
that the
dis
personal
that in 1990 or 1991 Reed had
refusing
trict court
its
abused
discretion
client,
with a
but that
relationship
request
to admit the EEOC’s and the
discipline
even
DCYS did not terminate or
Although
CEO’s no-cause determinations.
trial,
presented
Reed. At
evidence
trial courts admit EEOC determinations in
juvenile
stayed
who
with Reed
trials,
admissibility
liberal
bench
rule
part
DCYS client in 1991 and
was not a
apply
jury
trials.5 See
Walker
on rebuttal
1990. Lathem testified
Florida,
v. NationsBank
in 1989.
relationship also occurred
(11th Cir.1995). Instead,
the district
the relation-
that Reed had
admissibility
court must make the
determi
client in 1989. La-
ship with was DCYS
*6
basis,
an
considering
nation on
individual
inap-
them
Smith’s
regarding
also testified
probative
the evidence’s
value and the dan
her and DCYS
propriate conduct toward
ger
prejudice.
of unfair
See
Barfield
that Smith met
clients. Lathem testified
644,
Orange County, 911 F.2d
650
with female clients behind closed doors in Cir.1990),
denied,
954, 111
cert.
500 U.S.
policy,
inappropri-
violation of DCYS
made
(1991).
2263,
III. ISSUES admissibility to the of evidence. respect Decks, Inc., Hines v. Brandon Steel The issues are whether the district court See (11th Cir.1989), (1) cert. refusing in: to admit the EEOC’s erred denied, 971, 112 S.Ct. 503 U.S. and CEO’s no-cause determinations into (1992). (2) of evidence; Because denying for L.Ed.2d requests DCYS’s agencies. applies 5. We hold the same rule to the deter- employment state minations of discrimination erroneously con- legitimate why reports
fered reason the it because at trial Lathem may unfairly case, prejudiced have her we male com- tended Reed was another find that the district court did abuse of parator. living accused to in discretion when it refused admit not a DCYS with Reed was client late jury trial the no- EEOC’s and CEO’s 1991; stayed 1990 or if the client with cause determinations. during period, this time Reed did not Reed therefore, policy, violate DCYS and the argues DCYS also that the dis comparison was invalid. We hold that trict court erred in Lathem to allowing argument DCYS’s is meritless because: introduce evidence of sexual harassment (1) relatively Reed was a minor character discriminatory discipline and that occurred (2) trial, Smith was the dominant more than 180 days before Lathem filed (3) comparator, may err witness complaint. her EEOC A plaintiff may re testifying regarding when dates events damages only cover under Title VII years prior. Oppos- that occurred several known unlawful practices that occurred ing discrepancies counsel can these discuss days filing complaint. within 180 2000e-5(e)(l) (1994). jury urge § with the jury See 42 A can U.S.C. may trial court the testimony assessing exclude relevant evidence consider when substantially Moreover, when probative “its value is credibility. witness’s outweighed by danger preju of unfair object testimony, failed to to the or make a dice.” Fed.R.Evid. 403. argues motion to strike it at Accordingly, trial. testimony that Lathem’s that Smith made the district court did not err when al- inappropriate comments to her to testify regarding lowed Lathem Reed. pornographic showed her materials—pre sumably days more than 180 before she Judgment B. as a Matter of Law complaint—was filed her inflammatory and prejudicial jury may and that have that Lathem did not testimony justify used this its verdict. produce sufficient evidence to support her instructions, however, jury During the dis claim of intentional discrimination. The trict court jury clarified should case, disparate seminal treatment McDon only decide issues of discrimination related Green, Douglas nell Corp. v. articulated to Lathem’s curative termination. A in the procedure plaintiff for a put forth a *7 may prejudicial struction render remarks ;prima case of discrimination. 411 facie Thomas, harmless. See v. United States 792, 802, 1817, U.S. 93 S.Ct. 36 L.Ed.2d (11th 1332, Cir.1995), 62 F.3d 1343 cert. (1973). 668 “Demonstrating prima a facie denied, 1166, 1058, 516 U.S. 116 S.Ct. 134 onerous; case is not requires only it that (1996). Accordingly, L.Ed.2d 202 DCYS the plaintiff adequate establish facts cannot show the admission of this evidence permit an inference of discrimination.” prejudiced it. Reno, 1555, v. 115 F.3d 1562 Holifield (11th Cir.1997). plaintiffs Title VII estab argues DCYS next the that district prima lish a case they when demon court abused discretion when allowed facie (1) strate: plaintiff that the present belongs to a Lathem to evidence disparate of (2) protected VII; class under treatment Title that allegedly contradicted plaintiff qualified the job; claims she in her was for the pleadings made the and and (3) that the pretrial argues misconduct for which the order. when em ployer discharged plaintiff on rebuttal that a the was testified former the at living similarly DCYS client was Reed’s same or house in similar what situat 1989, in, the effectively pretrial employee engaged she amended ed but the em order, the client stayed ployer which stated that did the discipline employ other at Reed’s either 1990 or house in 1991. ee similarly. Holifield, See 115 F.3d at DCYS argues disparity prejudiced that the DCYS asserts that
793
correctly that Smith and La-
of element
court found
through misapplication
erred
similarly
case.
them were
situated.
prima
three of the
facie
employ
that if two
DCYS next
that La-
DCYS claims
titles, they are not
job
proof
pre
of
ees have different
them did not have sufficient
situated,
La-
similarly
accordingly,
and
judgment
text to survive
as a matter of
discriminatory intent
prove
them cannot
plaintiff
prima
law. Once a
establishes a
em
action,
treatment.
If two
through differential
disparate
case in a
treatment
facie
situated,”
“similarly
are not
ployees
employer
provide
specific, legit
must
workplace
of
rules
application
different
nondiscriminatory
imate
reason for disci
illegal
not constitute
discrimination.
plining
employees differently.
See
See Nix v. WLCY
Commu
Community
Radio/Rahall
v.
Dep’t
Texas
Bur
Affairs
(11th
nications,
1181,
Cir.
738 F.2d
1186
dine,
254-55,
1089,
248,
U.S.
101 S.Ct.
450
1984).
is not whether
inquiry
The relevant
(1981).
because she suffered disability from a dur cessfully for comparable employment with the ing pay period. back Generally, a numerous private businesses. DCYS ar- Title plaintiff VII can recover pay back that gues Lathem should also have applied only for the period plaintiff the is “avail at other government state agencies be- able willing to accept substantially cause secretarial positions were open dur- equivalent employment” elsewhere; courts ing the period. relevant DCYS asserts periods exclude where plaintiff is un that Lathem could have position obtained a work, available to such as periods of dis with another state agency “had made she ability, from the back pay See any award. effort.” In a pay back dispute, the Marsh, 490, (11th Miller v. 766 F.2d 492 burden is on the defendant prove that Cir.1985). claimants, Successful Title VII the plaintiff did not use reasonable dili- however, are presumptively entitled to gence to obtain comparable work. See pay. back See v. Massey Yardley EEOC Gallardo, Weaver 1515, Casa 922 F.2d Chrysler Inc., Plymouth, 1244, 117 Cir.1991). F.3d 1527 addition, we hold (11th Cir.1997). 1251 Courts resolve un mitigation requirement does not certainties in back pay in favor of the apply ato Title VII plaintiff where the discrimination victim. See Pettway v. defendant’s discriminatory conduct result- American Co., Cast Iron Pipe ed in the disability prevents plain- 211, (5th Cir.1974), denied, 260-61 cert. 439 tiff from finding employment. other See 1115, U.S. 1020, 99 S.Ct. 59 74 L.Ed.2d Maturo v. Inc., National Graphics, (1979). court, The district after reviewing F.Supp. (D.Conn.1989) (finding evidence, all the specifically found that plaintiff Title VII is required to miti- DCYS’s conduct caused Lathem’s disabili gate damages where employer caused ty and that this disability precluded her her disability). from obtaining other employment. Ac cordingly, we hold that a Title VII claim D. Costs ant is entitled an award of back pay Lastly, that the dis where the defendant’s discriminatory con trict court abused its discretion when it duct See, caused the disability. e.g., Sow awarded Lathem costs because 42 U.S.C. Kemira, Inc., ers v. 701 F.Supp. 2000e-5(k) § precludes Lathem from re (S.D.Ga.1988) (finding that excluding a covering taxable costs under Federal Rule back award based upon plaintiffs 54(d). of Civil Procedure The Local Rules disability would be unfair when the defen of the Northern District of Georgia require dant caused Therefore, the disability). that the party 54(d) requesting rule costs district court did not in awarding err La- file bill of cost within days after
them back pay. entry of judgment, which Lathem failed to
DCYS also argues that the dis do. 54.1, See Loc.R. N.D.Ga. The district trict court abused its court, discretion when it however, correctly noted determined that Lathem exercised plain reason language 2000e-5(k) of section ' able diligence in seeking substantially not distinguish between taxable and non equivalent employment. Title re costs; VII taxable if Congress to limit wanted quires plaintiffs to mitigate their damages Title plaintiffs’ VII recovery to non-taxable through reasonably diligent costs, efforts to seek it could have Further, so.6 done employment that is substantially equiva Lathem’s failure to file bill of costs did *9 lent. See Nord v. United Steel not prejudice States DCYS because Lathem’s rel Corp., (11th Cir.1985). F.2d atively small cost request did unex Lathem testified that she applied pectedly unsuc- expose DCYS great to a increase 2000e-5(k) reads, 6. Section pertinent in part: prevailing party ... a reasonable attor- any "In or proceeding action ney’s fees) under sub- fee (including expert part court, chapter discretion, in its may allow costs....” Evans, Dallas, addition, R. Robert the late submis- Howard Shaw liability. in Evans, LLC, Atlanta, GA, & for not affect DCYS’s deci- Plaintiff- the bill did sion of verdict; Appellee. DCYS filed a appeal sion Lathem submitted appeal of before
notice request. her cost also support offer sufficient evidence did not the costs were neces her assertion of the action. prosecution sary to HULL, Before CARNES and Circuit reasonable costs in Plaintiffs can recover HENDERSON, Judges, and Senior City cases. See Dowdell v. rights civil Judge. Circuit Florida, 1181, 1190 Apopka, Cir.1983). court reviewed The district ORDER: itemization, the cost removed thoroughly anoth item and reduced questionable one case, opinion above-styled on to its sound er. We defer currently published which is at 157 F.3d were reasonable.
whether Lathem’s costs (11th Cir.1998), VACATED, is and the case is resubmitted to the court for a V. CONCLUSION decision. we hold that the foregoing, Based on the not abuse its discretion did evidentiary making
when determina- tions, ample evidence to presented claim, treatment
support disparate her correctly awarded La- the district court and costs. them back AFFIRMED. America, UNITED STATES
BIRCH, concurring: Judge, Circuit Plaintiff-Appellee, concur, I dubitante.
v. ESPINOSA, Defendant-Appellant.
Fidel No. 96-5208 Non-Argument Calendar. CLOVER, Plaintiff-Appellee, D. Lisa Court of Appeals, United States Eleventh Circuit. SERVICES, INC., TOTAL SYSTEM 15, 1999. April Defendant-Appellant.
No. 97-9229. Appeals, United States Court of Eleventh Circuit. 15, 1999.
April Jr., Calhoun, George C. Marcus B. Columbus, GA, Jr., Boyd, Defendant- Appellant.