FILED

NOT FOR PUBLICATION

JUL 30 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LORI BELL, No. 19-15332

Plaintiff-Appellant, D.C. No. 2:14-cv-01916-JJT

v.

MEMORANDUM*

VF JEANSWEAR LP,

Defendant-Appellee.

LORI BELL, No. 19-15333

Plaintiff-Appellee, D.C. No. 2:14-cv-01916-JJT

v.

VF JEANSWEAR LP,

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona John Joseph Tuchi, District Judge, Presiding

Argued and Submitted July 6, 2020 Seattle, Washington

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: CLIFTON and M. SMITH, Circuit Judges, and DONATO,** District Judge.

Plaintiff Lori Bell appeals and defendant VF Jeanswear (“VFJ”) cross-

appeals the district court’s awards of damages, punitive damages, and attorneys’

fees in an employment discrimination action. We have jurisdiction pursuant to 28

U.S.C. § 1291. We affirm in part and vacate and remand in part.

First, the district court did not err in awarding Bell backpay despite its

holding that she was not constructively discharged. Bell suffered a discriminatory

demotion, rather than a refusal to promote, and thus her situation is not controlled

by the exception created in Odima v. Westin Tucson Hotel, 53 F.3d 1484, 1495

(9th Cir. 1995), and Thorne v. City of El Segundo, 802 F.2d 1131, 1134 (9th Cir.

1986). Instead, our case law demonstrates that Bell’s eligibility for backpay is

determined by her efforts to mitigate her damages, not her voluntary resignation.

See Sangster v. United Air Lines, Inc., 633 F.2d 864, 868 (9th Cir. 1980); Thorne,

802 F.2d at 1136 n.4 (emphasizing that the decision to award backpay is a fact

specific inquiry).

** The Honorable James Donato, United States District Judge for the Northern District of California, sitting by designation. 2 Second, the district court did not abuse its discretion in awarding Bell

backpay for the period beginning with her resignation on February 28, 2014 and

ending on August 31, 2015. A backpay award may terminate if the court finds that

a plaintiff voluntarily removed herself from the job market. Thorne, 802 F.2d at

1136-37. This requires an employer to demonstrate that “substantially equivalent

jobs” were available and that the employee failed to use reasonable diligence in

seeking employment. Odima, 53 F.3d at 1497. The district court did not abuse its

discretion in holding that VFJ successfully demonstrated both requirements as of

August 2015. The court’s consideration of expert testimony by Nathaniel Curtis

was not an abuse of discretion, particularly in the context of a bench trial. That

testimony provided the court with adequate evidence for it to find that substantially

equivalent positions existed as of August 2015. Bell’s failure to apply for any

positions until after her deposition, over a year after her resignation, and her

limited efforts thereafter provided sufficient evidence to support the finding that

Bell was not reasonably diligent in seeking employment. The district court did not

abuse its discretion in utilizing Bell’s past earnings to calculate her backpay award,

rather than the lesser amount earned by her replacement, as it is unknown whether

Bell would have performed the same as her replacement had she been permitted to

remain in the position.

3 Third, the district court did not err in awarding Bell punitive damages

pursuant to the jury award and the requirements of 42 U.S.C. § 1981a(b)(3)(D).

The district court correctly held that the evidence “reasonably permits the

conclusion that [VFJ] acted in the face of a perceived risk that its actions will

violate the Plaintiff’s rights under federal law—the standard for the jury to find

reckless indifference.” Thus, it did not err in denying VFJ’s motion for judgment

as a matter of law or for a new trial on punitive damages. The district court also did

not commit prejudicial error in its decision to admit testimony regarding two VFJ

employees but exclude evidence related to VFJ’s anti-harassment policy and Bell’s

previous harassment complaint. See Wagner v. Cty. of Maricopa, 747 F.3d 1048,

1052 (9th Cir. 2013) (“We review evidentiary rulings for abuse of discretion and

reverse if the exercise of discretion is both erroneous and prejudicial.”); see also

U.S. v. Whitworth, 856 F.2d 1268, 1285 (9th Cir. 1988) (explaining the “opening

the door” doctrine); Fed. R. Evid. 403 (stating that certain relevant evidence may

be excluded if its probative value is substantially outweighed by the danger of

confusing the jury). The award was not excessive and comports with due process.

See Arizona v. ASARCO LLC, 773 F.3d 1050, 1056-57 (9th Cir. 2014).

Fourth, the district court did in part abuse its discretion in calculating the

award of attorneys’ fees. When awarding attorneys’ fees, a district court first

4 applies the “lodestar formula” to determine a baseline for reasonable fees and,

second, evaluates the lodestar product for reasonableness in light of the results

obtained. Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983). At step one, the

district court did not abuse its discretion in reducing the lodestar formula by 40

percent based on its finding that Bell’s counsel substantially protracted the

litigation. See United States v. $28,000.00 in U.S. Currency, 802 F.3d 1100, 1108

(9th Cir. 2015) (The “district court [may] . . . make across-the-board percentage

cuts either in the number of hours claimed or in the final lodestar figure.”). The

district court did not err in focusing its analysis on the actions of Bell’s counsel,

rather than those of VFJ’s, as VFJ was not seeking a fee award.

However, in our view the district court did abuse its discretion in further

reducing Bell’s award by 45 percent at step two due to “limited success.” The court

correctly concluded that Bell’s claims were related as they all came from the same

common core of facts, namely her work relationship with VFJ, see Dang v. Cross,

422 F.3d 800, 813 (9th Cir. 2005), but failed to accord this fact its full weight. Bell

successfully demonstrated that she was discriminated against on the basis of sex in

a manner that justified punitive damages, and she was awarded the full extent of

compensatory and punitive damages available under the statute. Though she

succeeded in obtaining an award of equitable damages that was not nearly as large

5 as the amount she sought, what she won was still substantial. The overall results

accomplished in her favor required substantial legal effort. We vacate the district

court’s award of attorneys’ fees and remand with instructions to re-calculate the

award, with any reduction for limited success not to exceed 25 percent.

Each party to bear its own costs.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.

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