Mitigation under Title VII does not require re-education

In EEOC v. Dresser Rand Co., 04-CV-6300 (W.D.N.Y. August 10, 2011), a New York federal court rejected the defendant’s argument that an employment discrimination plaintiff’s decision not to pursue additional training at a local community college resulted in a failure to mitigate his damages.

Plaintiff, a Jehovah’s Witness, sued his employer alleging religious discrimination in violation of Title VII.  Plaintiff contended that his employer failed to accommodate his religious beliefs after plaintiff refused to work on any “implement of war”, which was problematic in light of defendant’s work for the U.S. Navy.

During discovery plaintiff testified about his job-search efforts; plaintiff considered pursuing, but did not pursue, additional training.  Defendant’s expert submitted a report in which he opined, in essence, that had plaintiff “attended and completed” a type of training at a local community college, he would have obtained experience and qualifications that would have resulted in increased pay and lessened the chance of unemployment by layoff.  While defendant’s expert clarified that he was not expressing an opinion regarding the reasonableness of plaintiff’s job-search efforts, he did opine that he proffered “the best method by which [plaintiff] could have mitigated his damages”.  Defendant argued that plaintiff’s damages should be capped at an amount equal to the sum of (1) what his lost wages would have been during the period of training and (2) the cost of the training.

Plaintiff argued that defendant did not show that plaintiff failed to mitigate his damages, and filed a motion to preclude the expert’s testimony under Federal Rules of Evidence 401, 403, and 702, on the grounds that (1) plaintiff had no duty to seek training (thus rendering his failure to do so irrelevant to the issue of mitigation), (2) defendant’s expert would likely mislead a jury concerning plaintiff’s duty to mitigate, and (3) the expert’s opinions were speculative.  The court agreed with plaintiff.

The law of mitigation, according to the court:

[V]ictims of employment discrimination are required to mitigate their damages, and … a discharged employee must use reasonable diligence in finding other suitable employment, which need not be comparable to their previous positions. … Such duty to mitigate is not onerous, and the unemployed or underemployed claimant need not go into another line of work, accept a demotion, or take a demeaning position, if substantially equivalent employment is unavailable. … The terminated employee is not required to prove that he mitigated his damages. Instead, the employer has the burden of proving that the employee failed to mitigate damages[.]

[The employer may satisfy its] burden of demonstrating that a plaintiff has failed to satisfy the duty to mitigate … by establishing (1) that suitable work existed, and (2) that the employee did not make reasonable efforts to obtain it.  [The Second Circuit recognized, in] Greenway v. Buffalo Hilton Hotel, 143 F.3d 47 (2d Cir.1998), … an exception to this general rule [under which] an employer is released from the duty to establish the availability of comparable employment if it can prove that the employee made no reasonable efforts to seek such employment. … [This] exception[] excuses an employer from showing that suitable employment existed, but only after the employer has shown that the employee failed to pursue employment at all. … The failure-to-mitigate-damages defense turns upon whether the terminated employee acted reasonably, and such inquiry is generally a question for a jury.

The court initially granted plaintiff’s cross-motion to exclude defendant’s expert report.  Defendant’s expert opinion was irrelevant to whether plaintiff mitigated his damages.  Plaintiff’s “failure to pursue … training is not relevant to show that he failed to mitigate his damages, since he was not under any obligation to seek such training.”  Generally, “a terminated employee who pursues an education rather than seeking a job fails to mitigate his damages”, although “a fact-finder may, under certain circumstances, conclude that one who chooses to attend school only when diligent effforts to find work prove fruitless, satisfies his or her duty to mitigate.”  Defendant offered no case law support for its argument that “an employee must seek vocational training to increase his chances of finding a job”.

Furthermore, “the duty to mitigate is not onerous, and an employee is not required to go into another line of work if substantially equivalent employment is unavailable.”  In the court’s view, the position that plaintiff did not pursue – which would have “required substantial additional training” – would have been in “another line of work” insofar as it was in a different field.

Also, since defendant’s expert’s opinion “could well mislead a jury into thinking that [plaintiff] had an obligation to pursue additional education in order to mitigate his damages”, it was subject to exclusion pursuant to Federal Rule of Evidence 403.

Having excluded defendant’s expert’s report, the court denied defendant’s motion for summary judgment, which was based primarily on the report.  Even aside from the report’s exclusion, however, summary judgment was not warranted.  Defendant failed to show that plaintiff “failed to pursue employment at all”, thus foreclosing its reliance on the above-noted exception.  Defendant could thus only win on its motion if it demonstrated, as a matter of law, that (1) suitable work existed, and (2) plaintiff did not make reasonable efforts to obtain it.  However, summary judgment-defeating issues of fact existed as to both points.

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