Sellers v. Delgado College

Decision Date29 May 1990
Docket NumberNo. 89-3129,89-3129
Citation902 F.2d 1189
Parties53 Fair Empl.Prac.Cas. 127, 54 Empl. Prac. Dec. P 40,044, 59 USLW 2039, 60 Ed. Law Rep. 439 Mary Juanita SELLERS, Plaintiff-Appellant, v. DELGADO COLLEGE, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

George M. Strickler, Jr. and Ann Woolhandler, LeBlanc, Strickler & Woolhandler, New Orleans, La., for plaintiff-appellant.

Jeffery M. Lynch and William J. Guste, Jr., Atty. Gen., New Orleans, La., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before LIVELY, * JOLLY, and HIGGINBOTHAM, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In this case that is before us for the third time, Mary Juanita Sellers, a successful Title VII claimant, appeals the denial of a back pay award for much of her ten-year post-termination period, which was based upon the magistrate's finding that she failed to mitigate damages. She argues that Delgado College failed to carry its burden to show that she failed to mitigate. We hold that the district court was not clearly erroneous in finding that the evidence showed that Sellers had failed to exercise reasonable diligence to obtain substantially equivalent employment and thus failed to mitigate. We therefore affirm.

I
A

The facts and the procedural history antedating this appeal are well-documented in Sellers v. Delgado College, 839 F.2d 1132 (5th Cir.1989) (Sellers II ). Mary Juanita Sellers served as a public relations officer at Delgado Community College from 1975 to February 1978, when she resigned. In 1982, she filed a Title VII action against Delgado, alleging that the college discriminated against her by employing a similarly qualified male in the same position at a higher salary and by discharging her constructively.

The district court referred the case to a magistrate, who tried it by consent of the parties. The magistrate held that Delgado violated Title VII and awarded Sellers damages. On appeal the first time, a panel of this court vacated and remanded the case to the magistrate to clarify the precise legal theory upon which its finding of discrimination was predicated. The court also remanded to clarify the back pay damages award and to consider fringe benefits and prejudgment interest. Sellers v. Delgado College, 781 F.2d 503 (5th Cir.1986) (Sellers I ).

On remand, the magistrate clarified that liability was predicated on the unequal pay between Sellers and her male counterpart. Additionally, the court awarded back pay damages, calculated according to the difference between Sellers' salary and that of her male counterpart, from May 1977, when it found that Sellers' and her male counterpart's duties merged, through December 1982, when Sellers resigned a clerical position at Gulf Oil Company; it tolled back pay for the period January 1983 to November 1983, the period following Seller's resignation from Gulf, because it concluded that, by resigning from Gulf, Sellers had failed to mitigate damages; it awarded Sellers back pay for the period November 1983 to July 1984, when Sellers was employed as a biscuit-making instructor at Popeye's, concluding that she had reentered the job market and, thereby, mitigated damages; it again tolled back pay for the period July 1984 to December 1984, the period following her resignation from Popeye's, concluding that, by resigning from Popeye's, Sellers had failed to mitigate; it awarded her back pay for the period after January 1985. Additionally, the magistrate awarded Sellers lost retirement and health benefits less the amount of those benefits earned during the time her back pay was tolled. The magistrate, however, denied Sellers front pay, concluding that Sellers would have attained a public relations position had she remained at Gulf; he also denied her prejudgment interest on her back pay award, concluding that constructive discharge was not a sufficient basis for such an award. Both Sellers and Delgado appealed.

In Sellers v. Delgado Community College, 839 F.2d 1132 (5th Cir.1988) (Sellers II ), we expressed our dissatisfaction with the way the magistrate had fashioned the back pay award and once again vacated and remanded to the magistrate, suggesting that he should reconsider back pay damages from start to finish. Specifically, we held that the magistrate erred in tolling Sellers' back pay for the time following her resignation from Gulf and Popeye's to the extent that back pay was tolled on the basis of her resigning those jobs. We concluded that since a Title VII claimant has no obligation to accept employment that is not substantially equivalent to her prior employment in order to minimize damages, Ford Motor Company v. EEOC, 458 U.S. 219, 231 at n. 14, 102 S.Ct. 3057, 3065 at n. 14, 73 L.Ed.2d 721 (1982), she has no duty to remain in such a job. After comparing Sellers' job responsibilities, salary, and promotional opportunities at Delgado with those at Gulf and Popeye's, we reversed as clearly erroneous the magistrate's finding that the positions were substantially equivalent; therefore, failure to mitigate could not be based upon her resigning from these positions.

In a part of our opinion that forms the backdrop of this appeal, we made clear the evidentiary burden of an employer following a finding of discrimination under Title VII. We reiterated that, although a successful Title VII plaintiff has a statutory duty to mitigate damages, the employer must prove that the plaintiff has failed to mitigate; to do so, the employer must demonstrate that comparable work was available and the plaintiff failed to use reasonable diligence to obtain it. 839 F.2d at 1139. Nevertheless, we concluded that, if the employer proves the plaintiff did not exercise reasonable diligence, he need not prove the availability of comparable employment. Id. We declined to decide whether Sellers had in fact exercised reasonable diligence. Holding that the magistrate had not made clear whether Delgado had demonstrated Sellers' failure to use reasonable diligence, we remanded the case for specific findings concerning Sellers' mitigation during the entire period after leaving Delgado. Id. We vacated the entire damage award and on remand, the magistrate was given discretion to take new evidence and remained "free to make new findings regarding the damage award." Id. at 1140.

B

Accordingly, on remand, the magistrate held a further evidentiary hearing on damages, took new evidence and issued new findings of fact and conclusions of law. The magistrate held that, by not exercising reasonable diligence to find substantially equivalent employment, Sellers had failed to mitigate damages and, therefore, was not entitled to back pay for a substantial part of the period after she left Delgado. The magistrate effectively treated the denial of back pay in four periods. First, for the period February 1978 through February 1981, the magistrate found that Sellers made no attempt to find employment until the latter part of 1978; additionally, the magistrate, after discrediting Sellers' testimony as to her efforts to find employment during this period, cited her minimal response to classified advertisements for substantially equivalent employment, her disregard of employment agencies, and her failure to place advertisements in newspapers and trade journals as evidence of her failure to use reasonable diligence during this time. Second, for the period following her departure from Gulf, January to November 1983, the magistrate cited Sellers' general failure to apply for substantially equivalent jobs, her failure to apply for jobs for which she was qualified, and her failure to contact employment agencies in denying her back pay. Third, for the period July 31, 1984, following her resignation from Popeye's, to December 31, 1984, the magistrate found that Sellers made virtually no effort to find any employment. Finally, for the period from January 1, 1985 until the date of judgment, the magistrate noted that although she had actively pursued employment at times during this period, her failure to exercise reasonable diligence in the preceding years, her pursuit of temporary employment, and resignation from substantial permanent employment had "significantly affected" her ability thereafter to find employment that was substantially equivalent to her job in public relations at Delgado. He therefore denied back pay for the period January 1, 1985, forward.

The magistrate awarded Sellers back pay from February 1981 to December 1982. The magistrate noted that Sellers contacted four employment agencies regarding public relations positions in February 1981, and in July 1981, obtained a permanent secretarial position at Gulf Oil in the hope that she could eventually work her way up to a job in public relations with the company. He cited Sellers' attempts to advance into a public relations, communications, and writing positions with Gulf as the basis for holding that she mitigated damages during this period of employment. The magistrate also awarded Sellers back pay for the time of her employment as a biscuit-making instructor at Popeye's, November 1, 1983 to July 31, 1984, citing her desire to use this position as a "stepping stone" into the company's public relations department and her efforts, in fact, to obtain such a position.

The magistrate denied Sellers front pay, finding that her failure to obtain similar employment in her professional field was caused by her failure to exercise reasonable diligence to secure substantially equivalent employment in the intervening years. Final judgment was entered for Sellers in the amount of $46,876.64 plus costs including prejudgment interest and fringe benefits.

II

Sellers now appeals the magistrate's denial of back pay for most of the period after she left Delgado and denial of front pay. Sellers argues that the magistrate erred in holding that Delgado...

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