Jon Everhart v. Board of Education of Prince George’s County

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1285
JON EVERHART,
Plaintiff – Appellee,
v.
BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY,
Defendant – Appellant,
and
PRINCE GEORGE’S COUNTY EDUCATOR’S ASSOCIATION,
Defendant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:11-cv-01196-PJM)
Submitted: September 12, 2016 Decided: September 16, 2016
Before NIEMEYER and SHEDD, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Linda Hitt Thatcher, Robert J. Baror, Wayne B. Wiseman, THATCHER
LAW FIRM, LLC, Greenbelt, Maryland, for Appellant. Bryan A.
Chapman, LAW OFFICE OF BRYAN A. CHAPMAN, Washington, D.C., for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jon Everhart, a former English teacher at Largo High
School, filed this action against the Board of Education of
Prince George’s County, Maryland (the Board), asserting he was
harassed on the basis of his race and retaliatorily discharged
after complaining of the harassment, in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e
to 2000e-17 (2012) (Title VII). After a nearly week-long trial,
a jury returned a $350,000 verdict in Everhart’s favor on the
retaliatory discharge claim, but in the Board’s favor on the
harassment claim. The Board filed a motion for judgment
notwithstanding the verdict (motion for JNOV), in accordance
with Fed. R. Civ. P. 50, which was summarily denied by the
district court. The district court awarded Everhart $198,170 in
backpay. The Board timely appealed.
The Board asserts that the district court erred when it
denied its motion for JNOV because, according to the Board,
Everhart’s evidence established he may have been terminated
because of his race, but was insufficient to establish he was
terminated in retaliation for his race discrimination
complaints. The Board also asserts that even if this court
agrees that the Board is liable for retaliatory discharge, the
matter should be remanded to the district court because Everhart

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failed to mitigate his damages and, thus, the Board asserts that
Everhart should not have been awarded backpay.
A district court may grant a motion for JNOV if it finds
that “no reasonable jury would [] have a legally sufficient
evidentiary basis to find for the [non-moving] party[.]” Fed.
R. Civ. P. 50(a)(1). We review de novo the denial of a motion
for JNOV, see Randall v. Prince George’s Cty., Md., 302 F.3d
188, 201 (4th Cir. 2002), and will affirm the denial if “giving
the non-movant the benefit of every legitimate inference in his
favor, there was evidence upon which a jury could reasonably
return a verdict for him[.]” Abasiekong v. Shelby, 744 F.2d
1055, 1059 (4th Cir. 1984) (internal quotation marks and
brackets omitted). Thus, we will not disturb a jury verdict
“unless, without weighing the evidence or assessing witness
credibility, we conclude that reasonable people could have
returned a verdict only for [the moving party].” Cooper v.
Dyke, 814 F.2d 941, 944 (4th Cir. 1987).
In reviewing a district court’s order to deny a motion for
JNOV, we are “not permitted to retry factual findings or
credibility determinations reached by the jury.” Cline v.
Wal-Mart Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998).
Rather, this court must “assume that testimony in favor of the
non-moving party is credible, unless totally incredible on its
face, and ignore the substantive weight of any evidence

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supporting the moving party.” Id. (internal quotation marks
omitted).
Admittedly, “Title VII retaliation claims must be proved
according to traditional principles of but-for causation,
[which] . . . requires proof that the unlawful retaliation would
not have occurred in the absence of the alleged wrongful action
or actions of the employer.” Univ. of Tex. Sw. Med. Ctr. v.
Nassar, __ U.S. __, __, 133 S. Ct. 2517, 2533 (2013). While the
evidence at trial established that Simpson-Marcus possessed
discriminatory animus against Everhart, we find that the record
contains sufficient evidence from which a reasonable jury could
have reached the conclusion that Everhart’s employment would not
have been terminated “but for” its retaliation for Everhart’s
many race discrimination complaints. Accordingly, we discern no
error in the district court’s decision to deny the Board’s
motion for JNOV.
A successful Title VII plaintiff is generally entitled to
backpay “as a matter of course, unless the defendant comes
forward with evidence that the plaintiff did not exert
reasonable efforts to mitigate [his] damages.” Martin v.
Cavalier Hotel Corp., 48 F.3d 1343, 1358 (4th Cir. 1995)
(internal quotation marks and citations omitted). Thus,
although a failure to diligently seek new employment precludes
an award of backpay for the period during which employment was

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not sought, the duty to mitigate is not without limits. See
Miller v. AT & T Corp., 250 F.3d 820, 838 (4th Cir. 2001). For
example, a plaintiff “need not go into another line of work,
accept a demotion, or take a demeaning position[.]” Ford Motor
Co. v. EEOC, 458 U.S. 219, 231 (1982).
To be awarded backpay, a discharged employee must first
introduce evidence in support of his claim by, for example,
establishing that he was unable to find comparable work.
Edwards v. Sch. Bd. of Norton, Va., 658 F.2d 951, 956 (4th Cir.
1981). Once a prima facie entitlement to backpay has been made,
however, the defendant bears the burden of demonstrating that
the plaintiff failed to fulfill the duty to mitigate. See
Miller, 250 F.3d at 838. We review a district court’s decision
to award backpay for abuse of discretion. Dennis v. Columbia
Colleton Med. Ctr., Inc., 290 F.3d 639, 651 (4th Cir. 2002). We
have reviewed the district court’s order awarding Everhart
backpay and discern no abuse of discretion in the district
court’s award.
Based on the foregoing, we affirm the district court’s
final order of judgment. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED

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