UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) CARMEN JEAN-BAPTISTE, ) ) Plaintiffs, ) ) v. ) Civil No. 11-1587 (RCL) ) DISTRICT OF COLUMBIA ) ) Defendants. ) ) MEMORANDUM OPINION A jury found for plaintiff Carmen Jean-Bap tiste on her Title VII and D.C. Human Rights Act (DCHRA) sexual harassment claims, her Title VII and DCHRA retalia tion claims, and her D.C. Whistleblower Protection Act (WPA) claims. Jean-Baptiste now moves [187] for equitable relief pursuant to those three statutes.
I. BACKGROUND The facts of this case are outlined in detail in the Court’s April 2013 Memorandum Opinion denying the District’s motion for a new trial and granting a motion for remittitur. See Jean-Baptiste v. Dist. of Columbia , __ F. Supp. 2d __, 2013 WL 1092896 (D.D.C. Apr. 24, 2013). Thus, only a brief summary follows here. In 2006, Jean-Baptiste was hired as a lifeguard by the District of Columbia Department of Parks and Recreation (“DPR”). The parties di sputed whether she was hired as a seasonal or year-round employee. Jean-Baptiste reported to Assistant Pool Manager Rodney Weaver and alleged that Weaver sexually hara ssed her. After she reported Weaver’s conduct, she alleges that Weaver and the District retaliate d against her and ultimately te rminated her employment in mid-2 October 2006. Jean-Baptiste immediately reapplie d for a lifeguard position. She failed two parts of the lifeguard assessment that the Department administered, but complained about the way the assessment had been conducted. She was not re hired. The District argued that she was terminated because her employment was only seas onal and that she was not rehired because she failed the lifeguard assessment. A jury found for Jean-Baptiste on her hostile work environment and retaliation claims under Title VII and the DCHRA, as well as he r WPA claim. The $3.5 million verdict was limited to compensatory damages and did not di stinguish between the damages awarded under each statute. The jury also took the unusual step of making policy recommendations to the District of Columbia. Specifically, it recomme nded that the District “begin an EEO training program for all DPR managers,” “rewrite DPR personnel policies to remove ambiguities about the EEO complaint and investigatio n processes,” and “initiate a revi ew of the actions, or lack of action, taken by all DPR employees and manage rs at the Takoma Pool and Aquatic Program” over the period during and immediately following J ean-Baptiste’s employment. Verdict Form at 4, ECF No. 185. This Court denied the District ’s post-trial motion for new tr ial or new trial on damages, but granted the District’s motion for remittitur. Order, ECF No. 200. Jean-Baptiste subsequently accepted a reduced compensatory award of $350,000. Notice of Acceptanc e of Remittitur, ECF
No. 202. Jean-Baptiste now seeks equitable relief in th e form of (1) back pay, plus pre-judgment interest, from the date of her discharge to the date of final judgment in this case; (2) reinstatement into the position she would occupy absent the retaliation she suffered (including any training and re-certif ication required for that position, and front pay dur ing any such training3 or re-certification); (3) a permanent injunction or dering the District to re frain from any further sexual harassment of or retaliati on against her; and (4) an order requiring the District to take affirmative steps suggested by the jury in its attach ment to the jury verdict. Pl.’s Mot. Equitable Relief 1–2, ECF No. 187 [herei nafter Pl.’s Mot.]; see also Pl.’s Mem. P. & A. in Support of Mot. Equitable Relief 7, ECF No. 187 [hereinafter Pl.’s Mem.].
II. LEGAL STANDARD GENERALLY Title VII provides: If the court finds that the [employer] has intentionally engaged in . . . an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unla wful employment practice, and or der such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement . . . with or without back pay . . . , or any other equita ble relief as the cour t deems appropriate. 42 U.S.C. § 2000e-5(g)(1). Title VII gives district courts “wide discretio n to award equitable relief. The district court should fashion this relief so as to provide a victim of employment discrimination the most complete make-whole relief possible.” Barbour v. Merrill , 48 F.3d 1270, 1278 (D.C. Cir. 1995) (internal citations omitted). The DCHRA also provides for equitable reli ef including “hiring, reinstatement or upgrading of employees, with or without back pa y,” “admission to or participation in a program, apprenticeship training program, on-the-job training program or other occupational training or retraining program,” D.C. Code §§ 2-1403.13(a), 16(b), and, where necessary to “prevent irreparable harm,” temporary re straining orders and preliminar y injunctions, D.C. Code § 2-
1403.07. Finally, the WPA identifies available relief as reinstatement to the same position held before the prohibited personnel action or to an e quivalent position, restoration of lost benefits, back pay and interest on back pay, and inj unctions. D.C. Code § 1-615.54(a)(1)(A)–(E).4 III. DISCUSSION A. Reinstatement Jean-Baptiste seeks reinstatem ent into either a year-round li feguard position or a higher level CS-11 aquatics facility management pos ition. Pl.’s Mem. 9. She argues that a CS-11 position would offer her union protections and that sh e is qualified to serve in such a position. Id. She suggests that progression fro m lifeguard to a facility management position in the seven years since her termination would represent a career trajectory similar to that of Sean Link, who served as the “Aquatics Program Manager,” or “Aquatics Director.” Trial Tr. 58, Aug. 8, 2012. Should Jean-Baptiste require add itional certifications, she seeks front pay until she can receive the certifications and reimbur sement for the cost associated with the certifications. Id. at 9–10. The District opposes reinstatement, promoti on, or front pay, arguing that Jean-Baptiste lacks the qualifications to hold a lifeguard position. Def.’s Opp’n to Pl.’s Mot. Equitable Relief 4, ECF No. 211 (citing Franks v. Bowman Transp. Co., Inc. , 424 U.S. 747, 773 n.31 (1976)). 1 Moreover, the District argues that promotion would be unduly speculative, suggesting that plaintiff is unlike former Aquatics Director Sean Link who “ultimately served a supervisor at the end of his eighteen year period with DPR.” Def. ’s Opp’n 5. Finally, because the District avers

1 The District attempts to submit two documents as Exhib it 2 to its Opposition. The first is a letter prepared by David Brooks reporting that Jean-Baptiste failed a recent water skills eval uation and two versions of a written exam entitled “CPR/AED for the Professional Rescuer and First Aid.” The second document contains Jean-Baptiste’s responses to that written exam. Jean-Baptiste moves to stri ke the exhibit, arguing that it is an unsworn statement and that the defendant has not identified the qualifi cations of the person who prepared the document. Mot. Strike, ECF No. 216; Mot. Strike, ECF No. 223 . The District argues that the evidentiary standards cited by Jean-Baptiste do not apply to a motion for equitable relief and also submits an affidavit from Mr. Brooks to address the District’s concerns. See Def.’s Opp’n to Pl.’s Mot. Strike Def.’s Ex. Two 2, ECF No. 218. The affidavit of Mr. Brooks states that he is employed by DPR as a R ecruitment and Lifeguard Trainer and th at Jean-Baptiste attended a four-day, thirty two hour course he gave in April 2013. Jean-Baptiste urges the Court not to consider “this late-submitted evidence.” Pl.’s Mot. Strike Lodged Sealed Document 2, EC F No. 223. Jean-Baptiste also argues that the affidavit fails to state that “everything in the original letter is true or correct.” Id. at 3. The Court need not resolve this dispute and will deny the motions to stri ke as moot because, as explained in more detail below, the Court finds the exhibits irrelevant to its decision.5 that plaintiff lacks the qualifications to hold the lower ranked position of lifeguard, the District argues that Jean-Baptiste should not be promoted to any higher position. The District also opposes any aw ard of front pay, suggesting th at this is only appropriate where reinstatement is not feasible. Id. at 5. The District cites McKennon v. Nashville Banner Publishing Company , 513 U.S. 352 (1995), for the proposition that neither reinstatement nor front pay are appropriate where th e employer has alternative, lawf ul grounds for terminating the employee. Id. at 5–6. Again, because the plaintiff is allegedly unqualified to work as a lifeguard, the District seeks to avoid a front pay award. 1. Legal Standard In employment discrimination cases, “[r]eins tatement is the presumptive remedy to make a successful plaintiff whole, though courts have recognized that there are exceptional circumstances sufficient to rebut the presumption.” Glymph v. Dist. of Columbia , 374 F. Supp. 2d 219, 226 (D.D.C. 2005) (citing Robert Belton, Re medies in Employment Discrimination Law, § 7.16 at 236 (1992)); see also Squires v. Bonser , 54 F.3d 168, 173 (3d Cir.1995) (“[R]einstatement is the preferred remedy in the absence of special circumstances militating against it.”). “Title VII envisioned that making a victim whole would include his reinstatement to the position he would have held but for th e discrimination. Section 706(g), 42 U.S.C. § 2000e-5(g), the remedial provision of Title VII, specifically includes reinstatement as an appropriate judicial remedy.” Lander v. Lujan , 888 F.2d 153, 156 (D.C. Ci r. 1989). However, even where reinstatement to plain tiff’s original role is not feas ible for some reason, the employer may have a responsibility to find comp arable work for the plaintiff. Glymph, 374 F. Supp. 2d at
226.6 Alternatively, courts have ordered front pa y as a substitute for reinstatement where reinstatement is not a viable option. Pollard v. E.I. duPont de Nemours & Co. , 532 U.S. 843 (2001); see also Barbour , 48 F.3d at 1279 (“The presumption that back pay will extend through the date of judgment derives from the related pr esumption that the employer will then rectify the discrimination by hiring or reinstating the employee. When that preferred remedy is unavailable, front pay is appropriate.” (internal citations omitted)). 2. Analysis The Court will order that, within thirty days of today’s date, Jean-Baptiste be reinstated into a year-round lifeguard position, contingent upon her demonstrating that she satisfies the qualifications and requirements for such a position. This may include a requirement, if imposed on other employees, that Jean-Baptiste pass tests rela ted to her skills in CPR, AED, and first aid. The District may not impose unreasonable require ments on Jean-Baptiste or mandate that she meet a higher standard than that required for similarly situated employees or applicants. If Jean-Baptiste cannot show that she is qualif ied for the position of lifeguard, the District must offer her, within forty five days of toda y’s date, a position “comparable to the position she held and for which she is qualified.” Glymph , 374 F. Supp. 2d at 227. Such a position must offer pay and benefits at least as generous as those provided to ye ar-round lifeguards. The Court will retain jurisdiction to resolve any disputes between the parties as to the comparability of the offered position, plaintiff’ s qualifications for the position, plaintiff’s decision not to accept the offered position, etc. See id. at 228. The Court will not order that Jean-Baptiste be reinstated to a higher level position than the one she occupied prior to her terminatio n. The Court finds unduly speculative JeanBaptiste’s arguments that she would have been pr omoted to a facility management position in the7 time between her termination and the present. Plaintiff offers Sean Link as a comparator, but the District avers that Link “started working seasonal ly as a lifeguard and progressed over the years from an instructor, and then became a pool mana ger, site director, and ultimately served as a supervisor at the end of his eighteen y ear period with DPR.” Def.’s Opp’n 5. 2 Plaintiff counters this argument by asserting that Link “advanced fr om the position of Recreation Specialist to the Aquatic Director of DPR in just four years.” However, without more information about the duties of a recreation specialis t and the typical advancement of DPR employees, the Court cannot base a decision to promote Jean -Baptiste on such vague assertions. Because the Court orders prompt reinstatemen t to a lifeguard or comparable position, the Court will not order front pay.
B. Back Pay Jean-Baptiste seeks back pay from the date of her termination to the date of final judgment, plus pre-judgment interest. In calc ulating the back pay due, Jean-Baptiste uses her salary at the time of her discharge in 2006 ($13.50/hour) multiplied by forty hours per week. Pl.’s Mem. 7. She adds interest compounded daily at the “short-term federal rate” and makes deductions for interim earnings. Id. Without citation, Jean-Baptiste argues that, in pay periods where her earnings exceeded her back pay, the Court should se t the back pay amount at zero rather than allowing the excess earnings to c ount against her back pay award in other pay periods. Id. at 8. Based on these calculations, Jean-B aptiste seeks $119,157.50 in back pay as of

2 Mr. Link testified that he had begun working as a lifeguard in Maryland beginning in or around 1991. Trial Tr. 58–60, Aug. 8, 2012. He began working as a lifeguard for DPR in or around 1994. Id. He stated that, after joining DPR, he worked as a lifeguard and instructor, and progressed to become site director and supervisor. Id. At some point over the twelve year period betw een 1994 and 2006, he became an “acting pool manager” or “rec specialist.” Id. at 89. In April 2010, he became the Aquatics Director. Thus, it appear s that as many as fifteen years elapsed between the time he began lifeguarding and when he became an acting pool manager.8 September 4, 2012 and asks that the amount be incr eased to reflect intere st and back pay up to today’s date. The District opposes any award of back pa y, arguing that Jean-Baptiste was “no longer qualified for the lifeguard position” when she wa s discharged and that “the jury’s award was therefore sufficient ‘make whole’ relief.” Def.’s Opp’n 2. The District argues that the jury determined only that retaliation was a “motivati ng factor” in Jean-Baptis te’s discharge, thus leaving open the possibility that plaintiff woul d no longer have been employed as a lifeguard even absent retaliatory action. Id. at 2–3. Alternatively, should the Court award back pay, the District disputes the method JeanBaptiste used to calculate the amount. Id. at 3. The District argues that back pay should not be calculated to the date of final judgment, though it does not explain the basi s for this argument. The District also asserts that interest on back pay should be compounded annually rather than daily, arguing that the Eleventh Circuit approach relied on by J ean-Baptiste is not universally accepted. Id. 1. Legal Standard

a. Availability of b ack pay generally Both Title VII and the DCHRA allow for rein statement with or without back pay. The WPA also provides for back pay and e xplicitly states that interest on back pay shall be available. Although back pay “is not an automatic or mandatory remedy; . . . it is one which the courts may invoke in the exercise of their sound ‘discretion [which] is equitable in nature.” Ford
Motor Co. v. EEOC , 458 U.S. 219, 226 (1982) (internal quotation marks and citation omitted). Courts must exercise the power to grant back pay “‘in light of the large objectives of” Title VII. Id. (internal citation omitted). These objectives include ending employment discrimination and9 encouraging Title VII defendants to “promptly . . . make curative, unconditional job offers to Title VII claimants, thereby bringing defendants into ‘voluntary compliance’ and ending discrimination far more quickly than could liti gation proceeding at its often ponderous pace.” Id. Moreover, Title VII attempts to “make the victims of unlawful discrimination whole by restoring them, so far as possible to a position where they would have been were it not for the unlawful discrimination.” Id. at 230 (internal quotation marks omitted). 3 Although back pay is thus often available, “[i] nterim earnings or am ounts earnable with reasonable diligence by the [plaintiff] shall operate to reduce the back pay otherwise allowable.” 42 U.S.C. § 2000e-5(g)(1). Thus, Title VII subj ects claimants to a “statutory duty to minimize damages,” Ford Motor , 458 U.S. at 231, and claimants must “u se reasonable di ligence in finding other suitable employment,” id. at 231. Where a plaintiff could have found work but failed to do so, some courts have denied all back pay. See, e.g. , Hopkins v. Price Waterhouse , 920 F.2d 967, 981–82 (D.C. Cir. 1990). Nevertheless, the empl oyer has the burden of proving inadequate mitigation. Hopkins v. Price Waterhouse , 737 F. Supp. 1202, 1212 (D.D.C. 1990) aff’d , 920 F.2d 967 (D.C. Cir. 1990); see also Neal v. Dir., Dist. of Columbia Dep’t of Corr. , Civ. No. 93- 2420, 1995 WL 517249 (D.D.C. Aug. 9, 1995) (“Defendants have the burden of going forward with evidence to establish the amount of earnings to be deducted, a nd to establish that plaintiffs failed to exercise reasonable diligence, if a pplicable.”). As explained in more detail below, the amount of the “set off” for interim earnings may sometimes be difficult to calculate. b. Appropriate time period for back pay

3 Courts sometimes deny back pay on the basis of equitable considerations, however, this appears to be in limited circumstances. See Albemarle Paper Co. v. Moody , 422 U.S. 405, 421 (1975) (“[B]ackpay should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination.”).10 The Court will award back pay to Jean-Baptist e from the date of her termination until the date of today’s judgment. See Fogg v. Gonzales , 492 F.3d 447, 454 (D.C. Cir. 2007) (affirming a district court’s grant of back pay to the date of judgment and citing cases approving similar awards); see also Barbour , 48 F.3d 1270, 1279 (D.C. Cir. 1995) (“The presumption that back pay will extend through the date of judgment de rives from the related presumption that the employer will then rectify the discriminati on by hiring or reinstating the employee.”). 4 Although back pay will often exte nd to the date of judgment, it may be cut short if a plaintiff fails to properly mitigate damages. B ecause Title VII plaintiffs must use “reasonable diligence to maintain any suitable employment which is secured,” Brady v. Thurston Motor Lines, Inc. , 753 F.2d 1269 (4th Cir. 1985), a plaintiff wh o obtains employment prior to judgment but who is terminated after failure to make “r easonable and good faith effo rts to maintain that job” may not receive back pay after di scharge from the employment obtained. Id. at 1277; but see Johnson v. Spencer Press of Maine, Inc. , 364 F.3d 368, 382 (1st Cir. 2004) (“[B]ack pay is not permanently terminated when an employee is fired for misconduct or voluntarily quits interim employment.”). Again, however, failure to adequately mitigate is an affirmative defense which must be raised by the employer. Cf. Barbour , 48 F.3d at 1279–80 (“The defendant remains free to challenge the award’s amount, length, or interest rate, or to establish as an affirmative defense that the plaint iff failed to mitigate damages.”). From 2009 to June 2010, Jean-Baptiste had empl oyment that paid substantially better than the job from which she was terminated with DPR. The Court has no information regarding why this employment ended in June 2010. The Dist rict has not suggested that it was through any

4 In the National Labor Relations Act (NLRA) context, “bac kpay” was often awarded until the date of reinstatement, even if that occurred after judgment. Pollard , 532 U.S. at 849. The Title VII provision authorizing back pay closely tracked a similar provision in the NLRA. However, in the Title VII context, “‘backpay’ occurring after the date of judgment is known today as ‘front pay.’” Id.11 fault of Jean-Baptiste’s, and thus, the Court cannot find that back pa y should end prior to judgment. Given that back pay will extend from the date of Jean-Baptiste’s termination to today’s date, the maximum possible back pay award is $189,540. This represents the plaintiff’s prior compensation rate of $13.50 per hour, assuming forty hours per week of work, from the pay period ending November 3, 2006, until today. Because the Court will reduce this figure to account for interim earnings and will allow prejudgme nt interest, this is not the final back pay award for Jean-Baptiste.

c. Interim earnings set off calculation Where there is a short time period between the termination of a plaintiff and final judgment, or where interim earni ngs never exceed projected back pay, calculation of back pay is relatively straightforward. For example, some judges in our Circuit a ppear to have simply calculated the total estimated back pay award a nd deducted total interim earnings from that

amount. See, e.g. , Chadwick v. Dist. of Columbia , 56 F. Supp. 2d 69, 73 (D.D.C. 1999) (“The period between plaintiff’s construc tive discharge and the verdict was two years and 92 days. . . . [P]laintiff would have earned $66,980.61 over that pe riod. After subtracti ng the $3000 plaintiff earned in the interim as mitigated damages, the Court concludes that plaintiff should be awarded $63,980.61 in back pay, plus prejudgment interest.”). Other judges appear to have assessed back pay awards on an annual basis and have subtra cted annual interim earnings from annual total back pay to arrive at a final award. See Hopkins , 737 F. Supp. at 1215 (“[Plaintiff’s] back pay award for each fiscal year shall be determined by subtracting from the average Price Waterhouse12 partnership salary for her class as stipulat ed, $100,000, or her actual earnings, whichever is greater.”). 5 Calculation of back pay is more complicated when a plaintiff has interim earnings which sometimes exceed estimated back pay. The Sixth Circuit has denied all back pay compensation when a plaintiff’s interim earnings exceeded her estimated back pay. EEOC v. New York Times Broad. Serv., Inc. , 542 F.2d 356, 359 (6th Cir. 1976) (noti ng that plaintiff “clearly was not damaged monetarily” where she later earned mo re than she would have in the position she sought). The Eighth Circuit utilized an annual b ack pay calculation, such that if, in any given year, the plaintiff’s earnings exceed her back pay award, the excess would not reduce the back pay owed in any other year. Leftwich v. Harris-Stowe State Coll. , 702 F.2d 686, 693 (8th Cir. 1983) (“Under a year-by-year approach, when, as he re, a plaintiff’s interi m earnings in any year exceed the wages he or she lost due to the discrimination, that ‘excess’ must not be deducted from any back pay for other years to which the plaintiff is entitled.”); see also id. (noting that Fifth and Tenth Circuits had affirm ed district court cases using a si milar approach). On the other hand, the Eleventh Circuit has taken a slightly different approach, fo llowing the practice in NLRA cases to calculate back pay on a quarterly basis. 6 See Darnell v. City of Jasper, Ala. , 730

5 The court in Hopkins also held that back pay may be reduced by the amount the claimaint “could have” earned “with reasonable effort.” 737 F. Supp. at 1215. Because this is part of the affirmative defense of failure to mitigate, and because the District has presented no argument or ev idence on this point, the Court will not consider whether any theoretical earnings should reduce her back pay award.
6 The D.C. Circuit has described the evolution of back pay calculations in the NLRA context: Before 1950, the Board calculated backpay by subtracting what an employee actually earned during the entire backpay period from what she would have earned during that period had the unlawful action not occurred. The Board came to realize, however, that computing backpay in that manner encouraged employers to delay reinst ating wrongfully terminated employees: if the employer waited long enough, the employee could start earning more at her new job than she would have earned at her old job, decreasing the employer’s total backpay liability. To eliminate this perverse incentive, the Boar d announced a new approach in F.W. Woolworth , 90 N.L.R.B. 289 (1950), under which it subtracted what an employee actually made from what she would have made on a quarterly basis, with the condition that “[e]arnings in one particular quarter ... ha[d] no effect upon the back-pay liability for any other quarter.” Thanks to the Woolworth approach, an13 F.2d 653 (11th Cir. 1984). Under this approach, earnings exceeding back pay in any quarter will not reduce the pay owed in any other quarter. 7 The Court will use the annual method of calculating back pay endorsed by the Eighth Circuit and, apparently, at leas t one other court in our Circuit. 8 Thus, where Jean-Baptiste earned more in a given year than her estimated back pay, the excess will not reduce her award in any other year.

Year Estimated Back Pay Interim Earnings Estimated Back Pay Less Interim

Earnings 9 2006 $5,400 $600 $4,800 2007 $28,080 $9,826 $18,254 2008 $27,000 $11,964 $15,036 2009 $28,080 $43,000 0 2010 $29,160 $22,360 $6,800 2011 $28,080 $0 $28,080 2012 $28,080 $0 $28,080 2013 $15,660 $0 $15,660 TOTAL $189,000 $87,750 $116,170
d. Prejudgment interest
employer no longer benefitted if a wrongfully terminated employee eventually started making more money at her new job than she would have made at her old job—those additional earnings did not offset what the employer owed in backpay for any previous quarters. Deming Hosp. Corp. v. NLRB , 665 F.3d 196, 199–200 (D.C. Cir. 2011) (internal citations omitted). The D.C. Circuit does not appear to have applied such an approach in the Title VII context.
7 The Court is unaware of any court applying the method suggested by Jean-Baptiste, namely calculating back pay on a pay period basis, such that excess interim awards in any pay period do not affect the award of any other pay period. Again, Jean-Baptiste has provided no citation to support the use of this method.
8 Some courts have declined to follow this approach on the theory that it departs from the “make whole” principle of Title VII and thus may result in a windfall to plaintiffs. See, e.g. , Sinclair v. Ins. Co. of N. Am. , 609 F. Supp. 397, 402 n.3 (E.D. Pa. 1984) aff’d sub nom. Appeal of INA Corp. , 782 F.2d 1029 (3d Cir. 1986) and aff’d sub nom. Appeal of Sinclair , 782 F.2d 1031 (3d Cir. 1986) and aff’d sub nom. Sinclair v. Cigna Corp. , 782 F.2d 1031 (3d Cir. 1986) (“The Leftwich rule may assure that employers do not benefit from employee’s ‘excess’ earnings. However, in my opinion, it has an overriding disadvantage of discouraging mitigation.”). While equitable concerns may sometimes counsel against the use of such an approach, the Court does not believe they do so here. Here, defendant has not even raised the possibility that Jean-Baptiste failed to mitigate her damages. If the defendant were to raise these concerns, the Court could deny or reduce back pay on the grounds that Jean-Baptiste had failed to sufficiently mitigate her damages.
9 This number is set to zero if interim earnings exceeded estimated back pay in any given year.14 Title VII authorizes prejudgment interest as part of the back pay remedy in suits against private employers. Loeffler v. Frank , 486 U.S. 549, 557 (1988). Ind eed, prejudgment interest is presumptively available. Cf. Barbour , 48 F.3d 1270, 1278 (D.C. Cir. 1995) (noting, in the context of a claim under 42 U.S.C. § 1981 that “in view of [plain tiff’s] entitlement to makewhole relief and the general remedial principle th at ‘[p]rejudgment interest is an element of complete compensation,’ we agree . . . that prejudgm ent interest ‘must be an ordinary part of any award of back pay.’” (internal citations omitted)). How to compute prejudgment interest is within the discretion of the district court. Berger v. Iron Workers Reinforced Rodmen, Local
201 , 170 F.3d 1111, 1139 (D.C. Cir. 1999); Forman v. Korean Air Lines Co., Ltd. , 84 F.3d 446, 450 (D.C. Cir. 1996) (noting that th e use of the prime ra te is “well within the district court’s discretion”). 10 The D.C. Circuit has held that prejudgment in terest is available ag ainst state governments in addition to private employers. Jones v. Washington Metr o. Area Transit Auth. , 205 F.3d 428, 434 (D.C. Cir. 2000) (affirming award of prejudgmen t interest and noting that the circuit saw “no bar to awarding pre-judgment interest on back pa y assessed against a state under Title VII, as to which the Congress expressly and effectively abrogated Eleventh Amendment immunity, and which has long been recognized, in the absence of immunity, to authorize prejudgment interest

10 In a citation, Judge Facciola summari zed the approach taken by the judges of this Court in determining the appropriate prejudgment interest: See Chadwick v. District of Columbia , 56 F. Supp. 2d 69, 73 n. 2 (D.D.C.1999) (“Unless the parties agree otherwise, prejudgment interest shou ld be awarded at the prime rate for each year between plaintiff’s constructive discharge and the entry of judgment”); Jefferson v. Milvets System Technology , 986 F. Supp. 6, 9 (D.D.C.1997) (“Neither the plaintiff nor the defendant has suggested a methodology whereby the Court is to calculate pre-judgment interest. Therefore the Court holds that pre-judgm ent interest shall be calculated in accordance with 28 U.S.C. § 1961, which governs post-judgment interest”); Hartman v. Duffey , 8 F.Supp.2d 1, 3 (D.D.C.1998) ( “there is no unjust enrichment to the government in selecting the one-year Treasury Bill Rate as the rate of pre-judgment inte rest ... That rate was the pre- Forman recommendation of the experts and has been, over time, about one-half percent greater then the three month T Bill rate urged by the government.”). Griffin v. Washington Convention Ctr. , 2000 WL 1174967 (D.D.C. July 21, 2000).15 as part of its back pay remedy” (internal citations omitted)). Moreover, the District of Columbia has explicitly authorized interest on back pay awards under the WPA. D.C. Code § 1- 615.54(a)(1)(E). There is some authority to s uggest that interest on Title VI I back pay awards against the District of Columbia is capped at four percent per year. See King v. Palmer , 641 F. Supp. 186, 188 (D.D.C. 1986) (stating that interest on back pay is authorized by Title V II but that “the rate of interest on a Title VII judgmen t against the District of Columbia or its o fficials is fixed at 4 percent by D.C. Code § 28–3302”). A ssuming that this rule applies to interest on back pay and that it is not limited to postjudgm ent interest, this cap would appear to apply to back pay awarded under the DCHRA and WPA as well. In this case , the jury verdict did not distinguish between liability based on violations of Title VII and that based on violat ions of the DCHRA and WPA. Thus, the Court will assume that D.C. Code § 28-3302 limits the interest that may be imposed on the back pay awarded under any of the three statutes and the Court will use four percent as the applicable interest rate. The interest rates relied upon by plaintiff ranged from three to nine percent. Thus, four percent interest for the entire time period is not a significant de parture from that claimed by plaintiffs. 11 Moreover, the District appears to have c onceded that interest rates as high as six percent might be a reasonable interest ra te. Def.’s Opp’n 3 (citing with approval Berger v. Iron Workers Reinforced Rodmen, Local 201 , 170 F.3d 1111, 1139 (D.C. Cir. 1999), in which the Circuit affirmed the use of si x percent interest compounded annua lly). Finally, a four percent

11 If the Court were to use the interest rates supplied by plaintiff, compounded annually, the total interest awarded would be $16511.15, nearly the same as the amount arrived at using a four percent rate across all years.16 annual rate over the relevant tim e period is consistent with th e prime rate, which has been endorsed by other courts in our Circuit. 12 In short, the Court will use an interest rate of four pe rcent compounded annually and will award Jean-Baptiste $133,283 in backpa y and prejudgment interest thereon. Year Estimated Back Pay Minus

Interim Earnings 13 Estimated Back Pay Minus

Interim Earnings Plus Prior Year’s Total Annual Interest Total Amount Due

2006 $4,800 N/A $60.49 $4,860.49 2007 $18,254 $23,114.49 $924.58 $24,039.07 2008 $15,036 $39,075.08 $1,563 $40,638.08 2009 0 $40,638.08 $1,625.52 $42,263.60 2010 $6,800 $49,063.60 $1,962.54 $51,026.14 2011 $28,080 $79,106.14 $3,164.25 $82,270.39 2012 $28,080 $110,350.39 $4,414.01 $114,764.40 2013 $15,660 $130,424.40 $2,858.62 $133,283 TOTAL $116,710 N/A $16,573.02 $133,283
C. Permanent Injunction Jean-Baptiste requests a permanent injunctio n enjoining the District from further discrimination and retaliation against her. Pl.’ s Mem. 10. Jean-Baptiste argues that such a remedy is “typical” in this jurisdiction. Id. (citing Bass v. Tanoue , 2001 WL 1659158, at *7 (D.D.C. Dec. 21, 2001); Jones , 205 F.3d at 435 (D.C. Cir. 2000)). The District acknowledges that “injunctions are a typical remedy under Title VII when additional discrimination is antici pated,” Def.’s Opp’n 6 (citing Mitchell v. Sec’y of Commerce , 715 F. Supp. 409, 410 (D.D.C. 1989)). However, th e District argues that a permanent injunction is unnecessary here because there is “no reasonable exp ectation that future discriminatory acts

12 The prime rates were 7.96% in 2006, 8.05% in 2007, 5.09% in 2008, and 3.25% in 2009 through 2012. Calculating interest at these rates, and assuming a 3.25% rate for 2013 (which is consistent with current monthly prime rates) would result in an award of $15,539.74 in interest, or a difference of just over $1033.
13 This number is set to zero if interim earnings exceeded estimated back pay in any given year.17 are likely to occur.” Id. (citing Bundy v. Jackson , 641 F.2d 934, 953 n.13 (D.C. Cir. 1981)). The District also states that DP R no longer employs Jean-Baptiste ’s “alleged” harasser, Rodney Weaver, or any of the management staff who were at DPR during the relevant time period. 14
1. Legal Standard Title VII provides that if the “court finds that the respondent has intentionally engaged in . . . an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful empl oyment practice . . . .” 42 U.S.C.A. § 2000e5. 15 A request for an injunction “w ill be moot only where there is no reasonable expectation that the conduct will recur, or where interim ev ents have ‘completely and irrevocably eradicated the effects of the alleged violation.’” Bundy , 641 F.2d at 946 n.13 (citing United States v. W. T.
Grant Co. , 345 U.S. 629 (1953), Cnty. of Los Angeles v. Davis , 440 U.S. 625, 631 (1979)). In Bundy , the D.C. Circuit held that there was no cer tainty that the unlawful conduct would recur

14 The Court notes that, at leas t in the eyes of our jury system, Mr. Weaver is no longer the “alleged” harasser. The jury found that it was “more likely than not that Rodney Weaver subjected the plaintiff to unwelcome verbal or physical conduct” and that this “conduct was sufficiently severe or pervasive such that it created a hostile work environment . . . .” Verdict Form 1, ECF No. 185.
15 In the context of permanent injunctions generally, a four-factor test normally governs whether a permanent injunction may issue. See eBay Inc. v. MercExchange, L.L.C. , 547 U.S. 388, 391 (2006). The test requires that plaintiff show the following: (1) that [she] has suffered an irreparable injury ; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and the defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. Id. However, courts in our circuit do not appear to have ex plicitly applied this four-factor test in the Title VII context. There is some authority that it should be applied. For example, eBay held that the test “appl[ies] with equal force to disputes” under the Patent Act, which “expressly provides that injunctions ‘may’ issue ‘in accordance with the principles of equity’”). Id. at 391–92. Additionally, the District of Maine applied the four-factor test in the context of Title VII in EEOC v. DCP Medstream, L.P. , 608 F. Supp. 2d 107, 109 (D. Me. 2009). However, in DCP Medstream , the court held that the first three prongs of the four-factor test were met because the jury found an unlawful employment practice and because Title VII explic itly endorses equitable relief. The fourth prong was “likewise met because . . . ‘the public has an inte rest in the enforcement of federal statutes.’” Id. (internal citations omitted)). Thus, under DCP Medstream ’s analysis, the four-factor test would a ppear to be satisfied in any Title VII case in which a verdict is rendered for the plaintiff. Gi ven the general practice in our Circuit of granting Title VII injunctions without an explicit invocation of this test, th e Court finds it unnecessary to engage in the four-factor analysis. Nevertheless, the Court will address the factors briefly below.18 because the employer had “taken no affirmative steps to prevent recurrence of the harassment, and because all the harassing employees still work for the agency.” Id. The Court noted that an Order issued by the Mayor did “not provide any certainty that the offending conduct [would] not recur,” id. , despite the fact that Order made clear that sexual harassment constituted sex discrimination and required the D.C. Office of Human Rights to “receive and adjudicate any complaints of sexual harassment . . . and require[d ] all agency heads to establish and implement intra-agency means of investigating and adjudicating complaints of harassment.” Id. at 947 &
n.14. Thus, an injunction may be issued even if an employer alters its conduct after discrimination charge. See, e.g. , EEOC v. Goodyear Aerospace Corp. , 813 F.2d 1539, 1544 (9th Cir. 1987) (“Generally, a person subjected to em ployment discrimination is entitled to an injunction against future discrimination unless th e employer proves it is unlikely to repeat the practice. . . . An employer that takes curative act ions only after it has been sued fails to provide sufficient assurances that it will not repeat th e violation to justify denying an injunction.”); Spencer v. Gen. Elec. Co. , 894 F.2d 651, 660 (4th Cir. 1990) abrogated on other grounds by Farrar v. Hobby , 506 U.S. 103 (1992) (“While it is true that this policy was instituted at least partially in response to this li tigation, the trial court found that the policy reflects a bona fide committed effort by G.E. to combat sexual harassment in the workplace.”). If granted, injunctions should be narrowly ta ilored and should generally apply only to the plaintiff where a class has not been certified. See Jones v. Wash. Metro. Area Transit Auth. , 946 F. Supp. 1023, 1034 (D.D.C. 1996) aff’d in part, vacate d in part on other grounds , 205 F.3d 428 (D.C. Cir. 2000) (noting that, where jury wa s not asked to find retaliation against other employees, nor did plaintiff rely on statistical evidence of disparate impact, injunctive relief had19 to be limited to prohibiting the employer from retaliating against plaintiff); Brown v. Trustees of
Boston Univ. , 891 F.2d 337, 361 (1st Cir. 1989) (“An inj unction should be narrowly tailored to give only the relief to which plaintiffs are entitled . . . .”); id. (warning against an injunction that is effectively class-wide where no class has been certified).

2. Analysis The Court will grant Jean-Baptiste’s request for a permanent injunction enjoining the District from further disc rimination and retaliation. The evidence presented at trial suggested pe rvasive harassment and discrimination within DPR and inadequate policies and procedures to respond to such conduct. Specifically, the jury heard testimony of a “culture of sexual harassment and sexual discrimination” at the pool where Jean-Baptiste worked, of a “ boys-gone-wild culture” in the a quatics department, and, with respect to many of the male supervisors above Jean-Baptiste, “a boys club from the top down.” Test. of Stacy Mills, Trial Tr. 42–48, Aug. 7, 2012. Jean-Baptiste testified that she complained about the Weaver’s harassment of her to at least six supervisors a nd that none responded adequately. Two other individua ls complained, again in vain, on Jean-Baptiste’s behalf. Additionally, the harassme nt of Jean-Baptiste does not appear to have been an isolated incident by one supervisor against one victim. Cf. Spencer , 894 F.2d at 660 (affirming district court’s denial of permanent injunction where th e case presented “an isolated incident of one supervisor run amok”). Jean-Baptiste’s harasser had been accused of se xual harassment one year before Jean-Baptiste was hired and supervisor Ma rgarita Cruz testified that, in response, she exaggerated complaints about that victim’s work performance to protect the harasser. Trial Tr. 58–73, Aug. 7, 2012; Trial Tr. 31–35, 53, Aug. 8, 2012. Cruz also testif ied that she herself had been sexually harassed by another of Jean-Baptist e’s supervisors. Moreover, the jury held that20 Jean-Baptiste’s complaints about her harassment pl ayed “substantial or motivating factor” in the District’s decision to termin ate her or to not offer her permanent employment. The District states that ne ither the “alleged” harasser, Rodney Weaver, nor any of the management employees employed during the relevant time period is still with DPR. The District also states that “the instant litigation involved a review of all of the employees and managers working at the Takoma Pool dur ing the relevant time period by both the Attorney General’s office and the DPR General Counsel.” However, the latter statement is so vague as to be almost meaningless. All litigation, give n the discovery process, necessar ily involves a “review” of the individuals involved. Moreover, nowhere does the District state that it took proa ctive steps to discipline or dismiss the employees involved in this matter. It may be the case that these employees, over the course of the last six to seven years, have simply obtained other employment of their own accord. Moreover, the Di strict admits that it did not revise its EEO policy until after the jury’s verdict in this case. See Def.’s Opp’n at 7 (c iting a policy revision dated September 26, 2012). Such a last minute effo rt is hardly evidence that the District’s conduct is unlikely to recur. Cf. Spencer , 894 F.2d at 660 (affirming dist rict court’s denial of permanent injunction where, in response to isolat e incident, the employer had “gotten rid of the offending supervisor, transferred plaintiff to a j ob of equal grade, and instituted an extensive company-wide anti-sexual harassment policy”). In short, the Court has signifi cant concerns that the District could once again fail to respond to harassment of or discrimination against Jean-Baptiste, or that it could allow improper retaliatory motives to play a ro le in personnel decisions related to Jean-Baptiste. Monetary damages do not entirely compensate for plaint iff’s injuries given that plaintiff remains unemployed and that, upon her reinstatement, she is at risk of being subjected to additional21 harassment and retaliation. Moreover, the bala nce of hardships certai nly favors the relief requested. A permanent injunction barring discrimination against plaintiff imposes little burden on the District. In fact, such an injuncti on does not prevent the District from acting lawfully as an employer. Thus, if Jean-Baptiste fails to fulf ill her duties as an employee or if she engages in misconduct, the district may respond. Cf. Lander , 888 F.2d at 158 (“To be sure, Lander’s right to reinstatement to the top administrative job in the Bureau does not mean he has life tenure in the job. He has only the right not to be transferred or disadvantaged for discriminatory reasons. . . . [H]e could be transferred sometime in the fu ture for a nondiscriminatory reason . . . .”) On the other hand, the injunction provide s significant benefit to Jean-Baptiste and protects her from any future unlawful actions by the District. Finally, the public inte rests in remedying and preventing discrimination and retaliation clearly weigh in favor of granting the injunction. The Court will grant a narrowly tailored injunction enjoining the District from discriminating against Jean-Baptiste on the basis of her sex and from retaliating against JeanBaptiste on the basis of her engagement in protected activities.
D. Jury Recommendations In rendering its verdict, the jury made policy recommendations to the District. Specifically, it recommended that the District be gin EEO training for all DPR managers, rewrite personnel policies to remove ambiguities, and revi ew the actions, or lack thereof, taken by DPR employees and managers at the Takoma Pool and Aquatic Program during and immediately following Jean-Baptiste’s employment. Verdict Form at 4, ECF No. 185. Jean-Baptiste asks the Court to order the Distri ct to take the steps suggested by the jury. Pl.’s Mem. 11–12. She asks that the District be required to update the Court and her counsel every six months for the next th ree years regarding the status of the actions taken and that DPR22 “hire or appoint someone with an expertise in effective EEO policies and procedures to oversee this overhaul of its EEO po licies and procedures.” Id. The District responds that such an or der is unnecessary because the jury’s recommendations have already been implemented. Specifically, it states that: “DPR revised its sexual harassment and EEO policy following the jury’s verdict . . . ,” Def.’s Opp’n 7 (citing Ex. 3, EEO policy dated Sept. 26, 2012); that “all DPR employees, including managerial employees, undergo sexual harassment tr aining on an annual basis,” id. ; and that “the instant litigation involved a review of all of the employees and managers working at the Takoma Pool during the relevant time period by both the Attorney General’s office and th e DPR General Counsel. None of the managers at the Takoma Pool during the relevant time period are any longer with the DPR or the District.” Id. 1. Legal Standard Title VII provides that if the court “finds that the respondent has intentionally engaged in . . . an unlawful employment practice charged in the complaint, the court may . . . order such affirmative action as may be appropriate. 42 U.S. C.A. § 2000e-5(g)(1). However, as with other injunctive relief, orders requiring affirmativ e action should be narrowly tailored. See supra

. Moreover, such orders should generally apply only to the plaintiff wher e a class has not been certified. See supra

. 2. Analysis The Court agrees with the jury that this case revealed serious structural and policy concerns regarding how the Distri ct responds to complaints of harassment. Nevertheless, the jury’s recommendations were exac tly that: recommendations.23 This case was not a class action. Although the Court heard testimony regarding that “culture” of harassment at DPR, th e jury did not have to determine whether a class-wide problem existed. The Court does not find it necessary or appropria te to issue what would essentially be an order for affirmative action intended to benefit a class of employees. Th e Court will decline to order such action.
IV. CONCLUSION The Court grants in part and denies in part Jean-Baptiste’s motion for equitable relief. The Court will grant Jean-Baptiste’s request for re instatement and order that, within thirty days of today’s date, Jean-Baptiste be reinstat ed into a year-round lifeguard position, contingent upon her demonstrating that she satisfies the qualifica tions and requirements for such a position. If Jean-Baptiste cannot show that she is qualified fo r the position, the District must offer her, within forty five days of today’s date, a position comparable in pay and benefits. The Court will retain jurisdiction to resolve any disputes between the parties regarding this aspect of the order. Along with reinstatement, the C ourt will award back pay plus pr ejudgment interest in the total amount of $133,283.02. The Court will also enjoin the District from discriminating against Jean-Baptiste on the basis of her sex and from retaliating against J ean-Baptiste on the basis of her engagement in protected activities. Although the Court shares the concerns raised by the jury, the Court will not order the District to take the affi rmative steps recommended by the jury. A separate Order consistent with this Memo randum Opinion and a final judgment in this case shall issue this date. Signed by Royce C. Lamberth, United Stat es District Court Judge, on July 19, 2013.