The opinion of the court was delivered by: Timothy R. Rice, United States Magistrate Judge.
This case involves the issue of what equitable relief, if any, is available when a jury finds a defendant liable for creating a retaliatory hostile work environment and awards no compensatory damages to a plaintiff who was not constructively discharged. For the following reasons, I deny back pay damages, but grant equitable relief in the form of enhanced training for certain managers in the United States Postal Service and a requirement that the Postal Service post notices of the verdict in certain regional offices.
In 2002, plaintiff Jamie Hare filed a Title VII action against defendant. The United States Court of Appeals for the Third Circuit reversed the District Court's grant of summary judgment for defendant and remanded as to three claims: whether defendant retaliated against plaintiff for not selecting her for a career advancement program; whether defendant retaliated against plaintiff by creating a hostile work environment; and whether defendant retaliated against plaintiff based on her gender. Hare v. Potter, 220 Fed.Appx. 120 (3d Cir.2007).
After the parties agreed to drop the gender retaliation claim, a jury returned a split verdict in September, 2007, ruling for defendant on the career advancement claim and ruling for plaintiff on the hostile work environment claim. The jury awarded no compensatory damages, and pursuant to Spencer v. Wal-Mart Stores, Inc., 469 F.3d 311, 315 (3d Cir.2006), I reserved the issue whether any equitable claim, such as back pay, should be awarded.
A. Constructive Discharge and Back Pay Award
Back pay is a remedy available to prevailing Title VII plaintiffs. Spencer, 469 F.3d at 315. It is a form of equitable relief awarded at the "discretion of the court." Id.*fn1 Back pay is designed to make a plaintiff whole, Gunby v. Pa. Elec. Co., 840 F.2d 1108, 1122 (3d Cir.1988) (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975)), and "restore the plaintiff ... to the position he otherwise would have been in absent discrimination." Gunby, 840 F.2d at 1122. Back pay is appropriate where the plaintiff establishes "the discrimination was ... found to have some concrete effect on the plaintiff's employment status, such as a denied promotion, a differential in compensation, or termination." Landgraf v. USI Film Prods., 511 U.S. 244, 254, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). The amount of back pay awarded is the difference between the amount of wages and benefits a plaintiff would have earned absent the discrimination, and the amount the plaintiff actually earned. See Durham Life Ins. Co. v. Evans, 166 F.3d 139, 156 (3d Cir.1999); Gunby, 840 F.2d at 1122-24.*fn2
Spencer is the Third Circuit's most recent discussion of the interplay between back pay awards and constructive discharge in employment discrimination cases. The Court held a plaintiff cannot recover back pay for a hostile work environment claim absent actual or constructive discharge, meaning the plaintiff must be either fired or forced to quit due to the discriminatory conduct.*fn3 Spencer, 469 F.3d at 317. The plaintiff had alleged a violation of the Americans with Disabilities Act, claiming Wal-Mart did not reasonably accommodate her disability and subjected her to a hostile work environment. Id. at 313. At trial, the plaintiff prevailed on her hostile work environment claim and the jury awarded $15,000 in back pay. Id. The district court granted the defendant's motion to set aside the back pay award because back pay was an equitable remedy, which a jury could not award, and back pay was not available absent actual or constructive discharge. Id. at 314. The Third Circuit affirmed, holding a "successful hostile work environment claim alone, without a successful constructive discharge claim, is insufficient to support a back pay award." Id. at 317; accord Mallinson-Montague v. Pocrnick, 224 F.3d 1224, 1237 (10th Cir.2000) ("the equitable remedy of back pay is only available ... when the plaintiff has demonstrated that she was constructively discharged"); Hertzberg v. SRAM Corp., 261 F.3d 651, 659 (7th Cir.2001) (the victim of discrimination must show constructive discharge to be awarded back pay). The Third Circuit reasoned "if a hostile work environment does not rise to the level where one is forced to abandon the job, loss of pay is not an issue." Spencer, 469 F.3d at 317; see also Hertzberg, 261 F.3d at 660 (absent constructive discharge "a plaintiff subjected to sexual harassment, no matter how egregious, is not `made whole' by the equitable remedy of back pay" (quoting Caviness v. Nucor-Yamato Steel Co., 105 F.3d 1216, 1219 (8th Cir.1997))).
In Spencer, however, the court did not specify whether its holding applied to both pre- and post-termination back pay or only to post-termination back pay. Spencer, 469 F.3d at 317. Plaintiff contends Spencer applies only if a plaintiff seeks post-termination back pay, but not if a plaintiff seeks pre-termination back pay. Plaintiff's Brief in Support of Back Pay and Other Damages at 8, Hare v. Potter, No. 02-CV-7373, 2007 WL 4760415 (E.D.Pa. Oct. 4, 2007) [hereinafter Plaintiff's Brief]. She reasons that pre-termination back pay is the wages and benefits a plaintiff would have earned from the time of discrimination to the time of resignation, whereas post-termination back pay is the wages and benefits a plaintiff would have earned from the time of resignation to the date of judgment. See Derr v. Gulf Oil Corp., 796 F.2d 340, 343 (10th Cir.1986) (permitting the plaintiff to recover damages prior to, but not after, resignation); Boehms v. Crowell, 139 F.3d 452, 461 (5th Cir.1998) (the plaintiff could not recover back pay "beyond the date of his retirement").
It is unclear from the Third Circuit and trial court decisions in Spencer whether the damages sought by the plaintiff were pre- or post-termination back pay. See Spencer, 469 F.3d at 317 (discussing Spencer's back pay request and award without specifying the time period); Spencer v. Wal-Mart Stores, Inc., 2005 WL 697988, at *2 (D.Del. Mar.11, 2005) (Wal-Mart argued Spencer was not entitled to back pay after what Wal-Mart "characterized as a voluntary termination"); but cf. Petition for Writ of Certiorari, Spencer v. Wal-Mart Stores, Inc., 2007 WL 1379721, at *19-20 (May 8, 2007) (it is "uncontested ... Ms. Spencer was still an employee of Wal-Mart, although she was still on unpaid medical leave"). Here, plaintiff seeks pre-termination back pay-or more precisely "pre-resignation" back pay-alleging she suffered economic damages as a result of a retaliatory hostile work environment before her voluntary resignation in 2004. These alleged damages consist of a salary differential she would have earned if she had received higher paying temporary assignments.
The court's failure in Spencer to distinguish between pre- and post-resignation back pay is irrelevant. As in Spencer, the plaintiff alleges a hostile work environment, not another type of discriminatory conduct that might allow an award of back pay for the period she endured discrimination. The cases distinguishing between pre- and post-termination damages do so in the context of a discriminatory failure to promote or provide equal pay, and not a hostile work environment. See, e.g., Jurgens v. E.E.O.C., 903 F.2d 386, 389 (5th Cir.1990) (denial of promotion); Bourque v. Powell Elec. Manuf. Co., 617 F.2d 61, 66 (5th Cir.1980) (unequal pay). Unlike plaintiffs in hostile work environment cases, in discriminatory promotion or equal pay cases, plaintiffs who leave their employment absent a constructive discharge could be entitled to "a remedy covering the period during which the discrimination occurred up to the date of resignation."*fn4 E.E.O.C. v. L.B. Foster Co., 123 F.3d 746, 755 (3d Cir.1997) (quoting Ezold v. Wolf, Block, Schorr & Solis-Cohen, 758 F.Supp. 303, 307 (E.D.Pa.1991)) (discussing the constructive discharge rule applied by other circuits); accord Jurgens, 903 F.2d at 389 n. 4 (5th Cir.1990) (to recover back pay beyond the date of his retirement or resignation, i.e. post-termination back pay, an employee must be constructively discharged); Derr, 796 F.2d at 343 (unless plaintiff "was constructively discharged, she is entitled to only the difference in pay between what she earned as an accounting clerk and what she would have earned as an associate lease analyst until she resigned").
Sound policy reasons support the availability of pre-termination back pay in failure to promote and equal pay cases. Plaintiffs who challenge promotions or equal pay decisions must do so consistent with the policy of halting discrimination "within the context of existing employment relationships." Bourque, 617 F.2d at 66; Ezold, 758 F.Supp. at 307. Plaintiffs in that posture are encouraged to "work with superiors within the existing job setting and employment relationship in an effort to overcome resistance within that workplace and to eradicate discrimination." Thorne v. City of El Segundo, 802 F.2d 1131, 1134 (9th Cir.1986); Ezold, 758 F.Supp. at 307. Moreover, where "an employer discriminatorily denies promotion to an employee that employee's duty to mitigate damages encompasses remaining on the job." Jurgens, 903 F.2d at 389; see Bourque, 617 F.2d at 66. Because a plaintiff who is unlawfully denied a promotion or denied equal pay for equal work should attempt to eradicate discrimination from within the workplace and has a duty to mitigate damages, it would be unfair to deny wages and benefits lost prior to resignation, i.e. pre-termination back pay. See Jurgens, 903 F.2d at 389 n. 4; Thorne, 802 F.2d at 1134.
Unlike a plaintiff in a denial of promotion or equal pay case, a plaintiff who alleges a hostile work environment, but who is not constructively discharged, cannot prove the discrimination had a "concrete effect on the plaintiff's employment status." Caviness, 105 F.3d at 1219 (quoting Landgraf, 511 U.S. at 254, 114 S.Ct. 1483). In a denial of promotion or equal pay case, a plaintiff must prove the employer denied the plaintiff a promotion or equal pay for equal work, and the plaintiff's protected status was a motivating factor in the denial. 42 U.S.C. §§ 2000e-2(a)(1), 2000e-2(h), 2000e-2(m); Desert Palace, Inc. v. Costa, 539 U.S. 90, 94, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003); Third Circuit Model Jury Instructions § 5.1.1 (2007). In a hostile work environment case, a plaintiff must prove the employer subjected the plaintiff to adverse treatment, the adverse treatment was due to a discriminatory reason, and the conduct was subjectively and objectively severe or pervasive. Third Circuit Model Jury Instructions § 5.1.5; Weston v. Pennsylvania, 251 F.3d 420, 425-26 (3d Cir.2001) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). Therefore, in a denial of promotion or equal pay case, a plaintiff must prove a connection between the discriminatory conduct and the "concrete effect on [the] plaintiff's employment status," i.e. the denial of promotion or differential in compensation. See 42 U.S.C. §§ 2000e-2(a)(1), 2000e-2(h), 2000e-2(m). However, in a hostile work environment case, a plaintiff must prove discrimination in the workplace, but is not required to prove, and often cannot connect the ...