IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-60697

SHEANETER J. BOGAN., 

 Plaintiff - Appellant

v.

MTD CONSUMER GROUP, INCORPORATED, 

 Defendant - Appellee

Appeal from the United States District Court

for the Northern District of Mississippi

Before WIENER, SOUTHWICK, and COSTA, Circuit Judges.

GREGG COSTA, Circuit Judge:

Sheaneter Bogan filed suit alleging that she was fired because of her race 

and sex. A jury found in her favor but awarded her just $1. The district court 

then denied Bogan both reinstatement and front pay, leaving her with no 

remedy. We review the district court’s decision not to award prospective relief. 

Because two of the reasons the district court relied on in denying reinstatement 

do not support that result, we remand for reconsideration. 

I.

A.

Bogan worked at MTD Consumer Group, a manufacturer of outdoor 

power equipment, for about 20 years. She started with the company in

United States Court of Appeals

Fifth Circuit

FILED

March 26, 2019

Lyle W. Cayce

Clerk

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unskilled positions, but while working took full-time classes at a community 

college so she could obtain a skilled position. After she completed that 

coursework, MTD eventually promoted Bogan to be a machinist in the Tool and 

Die department. She remained in that job for about two years until her 

termination in April 2013. 

While pursuing the Tool and Die position, Bogan also began going to 

school for a degree in social work. Her supervisors initially accommodated her 

class schedule with flexible work hours. But in fall 2012, human resources 

notified Bogan that, based on company policy only allowing flexible hours for 

work-related schooling, she had to work a normal shift.

Despite this decision, Bogan still worked some irregular hours. So 

Bogan’s supervisors reminded her that she had to work the regular 5:00 a.m. 

to 3:30 p.m shift and could not attend classes during work hours. But on 

occasion Bogan would squeeze class time into her lunch break. When a 

supervisor learned about this, he suspended Bogan. MTD then terminated 

her, ostensibly because she came back from lunch late. Bogan unsuccessfully

appealed her termination to an employee review board.

B.

After receiving a right-to-sue letter from the EEOC, Bogan filed this suit 

alleging race and sex discrimination. MTD sought summary judgment. The 

district court denied that motion, concluding that the evidence could support a 

finding that MTD’s reason for the termination was pretextual. For example, 

other employees “routinely” took lunch breaks that lasted longer than thirty 

minutes, but Bogan was the only one punished for doing so. The court also 

pointed to doubts about the accuracy of information in Bogan’s personnel file.

A four-day trial followed that resulted in the jury finding that MTD 

“discriminated against [Bogan] on the basis of her race and/or gender.” The 

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jury awarded her $1, perhaps because of a jury instruction on the consequences 

of a failure to mitigate, an argument that MTD pushed.

Bogan then asked the court for reinstatement or front pay. The district 

court held a hearing after which it denied both requests. It cited four factors 

that it believed counseled against reinstatement and refused to order that 

remedy. For front pay, the court held that MTD established that Bogan did 

not mitigate her damages.

II.

Reinstatement and front pay are equitable remedies. The ultimate 

exercise of a court’s equitable power is reviewed for abuse of discretion. 

Deloach v. Delchamps, Inc., 897 F.2d 815, 822 (5th Cir. 1990). An error of law 

or application of an incorrect legal standard rises to that level. Klier v. Elf 

Atochem N. Am., Inc., 658 F.3d 468, 474 (5th Cir. 2011). But the factual 

findings that underlie the decision to grant or deny relief are reviewed only for 

clear error. Sellers v. Delgado Cmty. Coll., 839 F.2d 1132, 1138 (5th Cir. 1988). 

A.

That deferential standard for review of factual determinations disposes 

of Bogan’s appeal of the front pay ruling. Bogan argues she did make 

reasonable efforts to obtain work and tried to keep up with her training. She 

makes some good points, but there was also evidence to support the district 

court’s contrary conclusions. We thus see no clear error in the court’s finding 

that Bogan did not use reasonable diligence to obtain “substantially equivalent 

employment.” Id.

B.

That leaves her challenge to the ruling on reinstatement. Reinstatement 

is the preferred equitable remedy under Title VII. Hansard v. Pepsi-Cola 

Metro. Bottling Co., 865 F.2d 1461, 1469 (5th Cir. 1989). Reinstatement more 

tightly fits the termination injury. It does not require answering the front pay 

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question of “whether and for how long a plaintiff will work in the future,” for 

which a bad guess means either that plaintiff is “left without a remedy” or 

“end[s] up with a windfall.” Duke v. Uniroyal Inc., 928 F.2d 1413, 1423 (4th 

Cir. 1991); see also Reneau v. Wayne Griffin & Sons, Inc., 945 F.2d 869, 870 

(5th Cir. 1991) (noting that front pay is “necessarily speculative in nature” and 

requires the court to engage in “intelligent guesswork”). And reinstatement

restores not just the financial benefits of a job but also the “psychological

benefits” of work. Allen v. Autauga Cty. Bd. of Educ., 685 F.2d 1302, 1306 

(11th Cir. 1982). Ergo, reinstatement is most consistent with Title VII’s 

“‘make-whole’ philosophy.” Hansard, 865 F.2d at 1469. 

This case presents an unusual situation in which no prospective (or 

meaningful retrospective) relief was awarded after a finding of discrimination. 

Our caselaw contemplates that one form of prospective relief will ordinarily be 

appropriate when it is requested. We have often said that the trial court’s 

remedial discretion in this area involves the “selection between reinstatement 

and front pay.” Brunnemann v. Terra Int'l, Inc., 975 F.2d 175, 180 (5th Cir. 

1992) (emphasis added); see also Palasota v. Haggar Clothing Co., 499 F.3d 

474, 489 (5th Cir. 2007) (quoting Brunnemann); Weaver v. Amoco Prod. Co., 66 

F.3d 85, 88 (5th Cir. 1995) (same). The typical “either/or” nature of this 

remedial choice is also seen in our statement that “if reinstatement is not 

feasible, front pay is the appropriate award.” Weaver, 66 F.3d at 88;

Brunnemann, 975 F.2d at 180 (“Generally, if reinstatement is not feasible, 

front pay will be awarded.”); see also Weaver v. Casa Gallardo, Inc., 922 F.2d 

1515, 1528 (11th Cir. 1991) (“[P]revailing Title VII plaintiffs are presumptively 

entitled to either reinstatement or front pay.”). In discussing another federal 

employment statute (the retaliation provision of the Fair Labor Standards 

Act), Judge Wisdom went so far as to say that “it is impossible for us to imagine 

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cases when a denial of both reinstatement and reimbursement would be 

justified.”1 Goldberg v. Bama Mfg. Corp., 302 F.2d 152, 156 (5th Cir. 1962).

Yet given the equitable nature of these remedies and the limits of our 

imagining the full variety of situations that arise in the workplace, there may 

be outlier situations in which no prospective relief is appropriate for a victim 

of discrimination. Indeed, although the parties could point to no case from our 

court in which a plaintiff sought either form of prospective relief but received 

neither,2 we found one such case involving an award of punitive damages that 

the district court concluded was enough to make the victim whole. Hadley v. 

VAM P T S, 44 F.3d 372, 376 (5th Cir. 1995). The Supreme Court has also 

identified one scenario: when after termination the employer obtains evidence 

of serious employee misconduct. McKennon v. Nashville Banner Publ’g Co., 

513 U.S. 352, 361–62 (1995).3 But our consistent signaling is that the usual

case involves a district court’s choosing which of the two options better serves

 

1 When Judge Wisdom made that observation, the FLSA did not allow damages for 

retaliation. 29 U.S.C. § 216(b); Pub. L. 95-151 (1977) (adding provision that allows for both 

legal and equitable remedies). It now does, as does Title VII since the Civil Rights Act of 

1991. 42 U.S.C. § 1981a(a)(1); Pub. L. No. 102-166 (1991). Yet most of the cases cited above 

discussing equitable Title VII remedies arose after the 1991 amendments allowed damages.

2 MTD cited two examples at oral argument, Giles v. Gen. Elec. Co., 245 F.3d 474 (5th 

Cir. 2001) and Hansard, 865 F.2d 1461. In Giles, the plaintiff was denied back pay, but 

received front pay. We indicated that it may have been appropriate to deny front pay, but it 

was not an abuse of discretion to allow it. 245 F.3d at 489. In Hansard, we reduced a 

plaintiff’s back pay for failure to mitigate and remanded the issue of front pay to the district 

court to consider mitigation. 865 F.2d at 1468. Neither of these cases foreclose the possibility 

that a plaintiff may be denied a prospective remedy. But neither considered or affirmed a 

judgment in which a plaintiff was denied any prospective remedy.

3 There are also examples from other circuits. The Eighth Circuit held that evidence 

of post-termination misconduct (as opposed to McKennon’s after-acquired evidence of pretermination misconduct) that would render the plaintiff ineligible for reinstatement may also 

justify denying both equitable remedies. Sellers v. Mineta, 358 F.3d 1058, 1064 (8th Cir. 

2004). The Seventh Circuit upheld denial of both reinstatement and front pay when the jury 

found the plaintiff’s earning capacity was not harmed as he had changed careers and started 

receiving a higher salary. Although he later alleged he had trouble holding that job, the court 

said his employer was not required to “insure his future employment success.” McKnight v. 

Gen. Motors Corp., 973 F.2d 1366, 1372 (7th Cir. 1992).

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the “purpose of Title VII to make persons whole for injuries suffered on account 

of unlawful employment discrimination.” Albemarle Paper Co. v. Moody, 422 

U.S. 405, 418 (1975); Brunnemann, 975 F.2d at 180.

Before we can assess whether the district court abused its discretion in 

not reinstating Bogan, we review each factor it cited in support of that ruling. 

The first two are ones that do counsel against reinstatement. Because Bogan’s 

position no longer “exists as it did during her employment,” the district court 

properly considered that reinstatement would require training on new 

machines and that the company did not have a present opening in the Tool and 

Die department. See Palasota, 499 F.3d at 489. It was also permissible for the 

court to rely on its finding that Bogan had intended to change careers to social 

work. Id.

The third reason the district court cited is MTD’s argument that it 

“would have terminated Plaintiff in the absence of any purported 

discrimination” because of “her inability to follow the rules and her attitude.” 

See 42 U.S.C. § 2000e-5(g)(2)(B). Yet the district court did not find that MTD 

proved this statutory defense, it only noted it as MTD’s position. More 

fundamentally, the district court could not find in favor of MTD on this issue

because the jury had rejected it. It was instructed that “[i]f you find by a 

preponderance of the evidence that MTD Consumer Group Inc has proved it 

would have terminated Ms. Bogan’s employment even if it had not considered 

her race and/or gender, you must find for the Defendant, MTD Consumer 

Group Inc, and go no further in your deliberations.” See also FIFTH CIRCUIT 

PATTERN JURY INSTRUCTIONS (Civil Cases) 11.13 (2014); Price Waterhouse v. 

Hopkins, 490 U.S. 228, 253 (1989). The jury thus must have rejected this 

defense in finding that MTD was liable for discrimination. It would be 

improper for the court to override the jury’s factfinding on this question when 

deciding equitable relief. Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 

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955, 965 (10th Cir. 2002) (“[W]hen legal and equitable issues to be decided in 

the same case depend on common determinations of fact . . . the court in 

resolving the equitable issues is then bound by the jury's findings on them.”);

In re Lewis, 845 F.2d 624, 630 (6th Cir. 1988) (“In the context of employment 

discrimination cases, it is well-settled that a jury's findings of discrimination 

are binding on a court considering reinstatement.”); Hussein v. Oshkosh Motor 

Truck Co., 816 F.2d 348, 355 (7th Cir. 1987) (“[I]n deciding whether to grant 

equitable relief under Title VII, the district court [is] prohibited from 

reconsidering any issues necessarily and actually decided by the jury.”); 

Lindsey v. Am. Cast Iron Pipe Co., 810 F.2d 1094, 1097–98 (11th Cir. 1987) 

(holding that a district court’s rejection of liquidated damages in an age 

discrimination case was improper because it relied on factual findings “that 

conflicted with the jury’s findings”); Gibson v. Mohawk Rubber Co., 695 F.2d 

1093, 1101 (8th Cir. 1982) (stating that the district court “cannot base its 

decision on its own factual findings that conflict with those expressly made by 

the jury”). Allowing MTD to relitigate the verdict during the remedial phase 

was error.

The final reason the district court cited in denying reinstatement—

“discord between the parties”—is also problematic because of the apparent

source of that acrimony. For understandable reasons, hostility between the 

parties that is likely to disrupt the workplace if the employee returns can be a 

reason for denying reinstatement. See, e.g., Deloach, 897 F.2d at 822. Such 

acrimony is often cited by courts that award front pay rather than requiring 

the plaintiff to return to a discriminatory employer. Id. (addressing employer’s 

appeal of front pay award in which it argued that reinstatement was preferable 

even though the district court had found there was too much discord between 

the parties for that remedy); see also Walther v. Lone Star Gas Co., 952 F.2d 

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119, 127 (5th Cir. 1992) (addressing employer’s argument that reinstatement 

should have been imposed rather than front pay award).

What makes this a challenging area is that the post-lawsuit context in 

which this question arises usually sees some friction between the parties. 

Antagonism is a natural by-product of lawsuits, often even more so for ones

alleging discrimination. If the hostility common to litigation were sufficient 

for “denial of reinstatement, reinstatement would cease to be a remedy except 

in cases where the defendant felt like reinstating the plaintiff.” EEOC v. 

Century Broad. Corp., 957 F.2d 1446, 1462 (7th Cir. 1992); see also Weaver v. 

Amoco Prod. Co., 95 F.3d 52, 1996 WL 459345 at *2 (5th Cir. 1996) 

(unpublished) (noting that the hostility must “exceed the animosity level that 

commonly arises between opposing parties throughout the litigation process”). 

And for reasons we have just explained, the finding of discord cannot rely on 

reasons rejected by the jury, such as hostility stemming from the employee’s 

alleged misconduct that the jury found to be pretextual. Cf. Ray v. Iuka Special

Mun. Separate Sch. Dist., 51 F.3d 1246, 1254 (5th Cir. 1995) (recognizing that 

finding of discord could not be based “upon reasons rejected by the jury,” 

though concluding that is not what the district court’s ruling relied on). So 

more than the friction that typically results from litigation or the employee’s 

termination is required for the discord to be a reason not to order 

reinstatement.

The acrimony must rise to the level at which the parties’ relationship is

“irreparably damaged.” Walther, 952 F.2d at 127; see also Allen, 685 F.2d at

1306 (“Unless we are willing to withhold full relief from all or most successful 

plaintiffs in discharge cases, and we are not, we cannot allow actual or expected 

ill-feeling alone to justify nonreinstatement.”). That “lingering hostility” 

existed when a plaintiff had alleged that his employer “attempted to black-ball 

him in the industry” and the employer alleged the plaintiff filed falsified 

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expense reports, something that it did not allege was a justification for the 

plaintiff’s actual termination but could have been. Palasota, 499 F.3d at 490.4

The district court did not find that the relationship between Bogan and 

MTD rose to the level at which it was irreparably damaged and exceeded the 

antagonism that normally results from trials. Walther, 952 F.2d at 127 

(stating that a court should cite “specific instances of discord” for the acrimony 

to justify denying reinstatement). It did describe MTD’s hostility towards 

Bogan as “palpable,” but the only example cited was the remedial-phase 

testimony of the human resources manager when he “discussed the human 

resources issues he would face if the employee review process were to be 

negated by reinstating Plaintiff.” It is not clear that this problem is one of 

hostility rather than inconvenience. And the concern that a court order of 

reinstatement would be inconsistent with, and thus undermine, the employer’s 

own dispute resolution procedures that resulted in termination would 

seemingly always exist. More than that common situation is needed to find 

that the relationship between the parties is so broken that it has reached the 

point of no return. Id. Finally, it is the jury’s finding of discrimination that 

contradicted the employee review process, so allowing that disagreement to 

defeat reinstatement runs the risk we have already discussed of not honoring 

the jury’s verdict. Without evidence that the relationship between Bogan and 

MTD exceeded that which normally accompanies trials, this factor does not 

militate against the preferred remedy of reinstatement.

 

4 Examples from other circuits highlight how severe the hostility usually is when 

courts use it to deny reinstatement. See Hunter v. Town of Mocksville, N.C., 897 F.3d 538, 

562 (4th Cir. 2018) (denying reinstatement when the plaintiff made social media posts 

following his termination calling the city for which he worked a “crooked [expletive] hole of a 

town” and questioning the judgement of law enforcement decisions); Hammond v. Northland 

Counseling Ctr., Inc., 218 F.3d 886, 892 (8th Cir. 2000) (finding sufficient acrimony to 

preclude reinstatement in a False Claims Act case when there was evidence of attempts by 

the plaintiff’s coworkers to “intimidate and harass” her after she filed her suit).

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Because the district court should not have considered two of the four 

factors it relied on in denying reinstatement, we cannot review its conclusion 

that Bogan’s reinstatement would not further the remedial goals of Title VII. 

The remedial discretion is vested in the district court, and we do not know how 

it would exercise that authority with two fewer factors on the “no 

reinstatement” side of the scale. We thus remand for further proceedings

without suggesting how the district court should exercise its discretion based 

on the two factors that remain or other permissible considerations that the 

district court may find relevant.

***

AFFIRMED in part, VACATED and REMANDED in part.

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