Booker v. Taylor Milk Co., Inc.

Decision Date31 August 1995
Docket NumberNo. 94-3503 and C,Nos. 94-3503,No. 94-3525 and C,No. 94-3503,No. 94-3525,94-3525,94-3503 and C,94-3525 and C,94-3503,s. 94-3503
Parties66 Empl. Prac. Dec. P 43,703 Leatch BOOKER, III, v. TAYLOR MILK COMPANY, INC.; Russell Morgan; Timothy M. Garcia; Diane Petcash; Joseph S. Taylor; Phil F. Richardson; Dick Richardson; Richardson & Associates. Leatch Booker, III, Appellant inross-appellee inTaylor Milk Company, Inc., Appellant inross-appellee in
CourtU.S. Court of Appeals — Third Circuit

Vaughn A. Booker (argued), Lansdale, PA, for appellant.

John A. McCreary, Jr. (argued), Henry L. Clement, III, Volk, Robertson & Hellerstedt, Pittsburgh, PA, for appellee.

Before: STAPLETON, McKEE and SEITZ, Circuit Judges.


SEITZ, Circuit Judge.

Leatch Booker, III ("Plaintiff") was unlawfully terminated by Taylor Milk Company, Inc. ("Defendant"). As a result of this discharge, Plaintiff was awarded, inter alia, back pay; however, his request for prejudgment interest on the award was denied. First, both Plaintiff, on appeal, and Defendant, in its cross-appeal, challenge the district court's order awarding back pay. Second, Plaintiff appeals from the order of the district court denying his request for prejudgment interest. The finding of unlawful termination is not challenged on appeal. The district court had jurisdiction under 28 U.S.C. Sec. 1331, and we have jurisdiction pursuant to 28 U.S.C. Sec. 1291.


Plaintiff, an African American, was employed as a probationary laborer and dock handler by Defendant. Prior to the end of his period of probation, Plaintiff was terminated. Thereafter, he instituted this action against Defendant, and a number of other individuals (not involved in this appeal), alleging that his discharge was racially motivated. After a bench trial, the district court entered judgment for Plaintiff finding that his discharge was racially motivated and violative of Title VII of the Civil Rights Act of 1964, see 42 U.S.C. Secs. 2000e to 2000e-17.

In its judgment, the district court concluded that Plaintiff was entitled to, inter alia back pay. Although it awarded back pay, it reduced that sum by the amount it found Plaintiff could reasonably have earned elsewhere during the layoff period. 1 Thereafter, Plaintiff made a motion for prejudgment interest on this back pay award, which was denied by the district court.

Plaintiff filed a timely appeal and Defendant a timely cross-appeal from the district court's orders.


Plaintiff argues on appeal that the district court erred in finding that he essentially failed to mitigate damages after his discharge and in calculating the amount of the back pay award. In addition, Plaintiff argues that the district court abused its discretion in denying his motion for prejudgment interest. In its cross-appeal, Defendant contends that because the court concluded that Plaintiff failed to fully mitigate damages as required by the statute, he is not entitled to any back pay. We turn first to the district court's order awarding Plaintiff certain back pay.

A. The Back Pay Award

If a district court finds that an employer has engaged in an unlawful employment practice, Title VII authorizes, inter alia, a back pay award. See 42 U.S.C. Sec. 2000e-5(g)(1); see also Loeffler v. Frank, 486 U.S. 549, 558, 108 S.Ct. 1965, 1971, 100 L.Ed.2d 549 (1988). As explained by the Loeffler court, the back pay award authorized by Title VII "is a manifestation of Congress' intent to make 'persons whole for injuries suffered through past discrimination.' " Id. (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 421, 95 S.Ct. 2362, 2373, 45 L.Ed.2d 280 (1975)); see Squires v. Bonser, 54 F.3d 168, 172 (3d Cir.1995). Despite a presumption in favor of a back pay award, see Albemarle Paper Co., 422 U.S. at 421, 95 S.Ct. at 2373, successful Title VII claimants have a statutory duty to mitigate damages. See Robinson v. SEPTA, Red Arrow, 982 F.2d 892, 897 (3d Cir.1993).

1. Plaintiff's Duty to Mitigate Damages

A successful claimant's duty to mitigate damages is found in Title VII: "Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable." 42 U.S.C. Sec. 2000e-5(g)(1); see Ellis v. Ringgold Sch. Dist., 832 F.2d 27, 29 (3d Cir.1987), cert. denied, 494 U.S. 1005, 110 S.Ct. 1298, 108 L.Ed.2d 475 (1990). Although the statutory duty to mitigate damages is placed on a Title VII plaintiff, the employer has the burden of proving a failure to mitigate. See Robinson, 982 F.2d at 897; Anastasio v. Schering Corp., 838 F.2d 701, 707-08 (3d Cir.1988). To meet its burden, an employer must demonstrate that 1) substantially equivalent work was available, and 2) the Title VII claimant did not exercise reasonable diligence to obtain the employment. See id. at 708.

Whether or not a claimant has met his duty to mitigate damages is a determination of fact, which is subject to the clearly erroneous standard of review. See Robinson, 982 F.2d at 897; Ellis, 832 F.2d at 29. In this case, the district court found that Defendant had established Plaintiff's failure to mitigate damages by a preponderance of the evidence and reduced the back pay award by the amount it found Plaintiff could reasonably have earned during the relevant period.

In support of its finding, the district court stated that "Defendant's Exhibit 14 and other evidence establishes [sic] that minimum wage jobs were available in the relevant job market for which Plaintiff was qualified. Plaintiff did not apply and would have been hired if he did." Appendix at 91a. Defendant's Exhibit 14 covers thirty-three months of the Beaver County Times' ("Times") Sunday help-wanted section following Plaintiff's discharge. The court did not specifically indicate what "other evidence" supported its conclusion. Although the record is somewhat sparse, it is clear that the district court found from the record that 1) Plaintiff was not reasonably diligent in an effort to secure employment, and 2) there were substantially equivalent positions available. We address these findings.

a) Reasonable Diligence

The reasonableness of a Title VII claimant's diligence should be evaluated in light of the individual characteristics of the claimant and the job market. See Tubari Ltd., Inc. v. NLRB, 959 F.2d 451, 454 (3d Cir.1992). Generally, a plaintiff may satisfy the "reasonable diligence" requirement by demonstrating a continuing commitment to be a member of the work force and by remaining ready, willing, and available to accept employment. See Hutchison v. Amateur Elec. Supply, Inc., 42 F.3d 1037, 1044 (7th Cir.1994); Ford v. Nicks, 866 F.2d 865, 873 (6th Cir.1989).

Plaintiff testified that he read the help-wanted ads in the Times every Sunday and "constantly and continuously searched for employment." Appendix at 23a-2 to 23a-3, 25a. In addition, following his discharge, Plaintiff did earn approximately $2,000 a year doing "odd jobs." Id. at 23a-1 ("handyman, painting, putting up fences, whatever"). Plaintiff also pointed out that he remained active with the Beaver Falls Job Service ("Job Service"), a local employment agency. However, Plaintiff testified that in the three and one-half years following his discharge, he had failed to submit any employment applications in response to the Times ads and had only one job interview. See id. at 23a-2, 27a-28a. Plaintiff has attempted, both during trial and on appeal, to explain his efforts.

First, Plaintiff stated that most companies will not accept job applications unless they are sent through the Job Service. However, there is no evidence in the record to support Plaintiff's statement. Furthermore, Defendant produced a number of help-wanted ads, which seem to be soliciting applications directly without reference to the Job Service.

In addition, Plaintiff argues that "[a]n examination of the grouping of advertisements [in Exhibit 14] reveals that the vast majority of the listings are those of employment agencies and temporary agencies." Plaintiff's Br. at 10. Because a number of agencies may list the same job and some list jobs so as to establish a file of available personnel, he maintains, merely counting the listings may serve to count the same job more than once. Although some of the listings are from agencies, Plaintiff did not point to any ads which posted the same position or which listed a position that was, in actuality, not available. Further, Plaintiff did not support his statements concerning the temporary agencies' policies. In fact, Plaintiff testified that in the past, he obtained employment through a temporary agency.

Although a plaintiff's efforts need not be successful, he must exercise good faith in attempting to secure a position. See Reilly v. Cisneros, 835 F.Supp. 96, 99-100 (W.D.N.Y.1993). Here, it appears that Plaintiff did little more than register with the Job Service and look through the help-wanted ads. See EEOC v. Service News Co., 898 F.2d 958, 963 (4th Cir.1990) ("Looking through want ads for an unskilled position, without more, is insufficient to show mitigation, and the back pay award should accordingly be reduced."); Truskoski v. ESPN, Inc., 823 F.Supp. 1007, 1015 (D.Conn.1993) ("A ritualistic compliance with the unemployment administrator's work search requirement does not necessarily constitute a reasonably diligent search for suitable employment."). Under the circumstances, Plaintiff's conduct following the unlawful discharge does not appear to demonstrate his continuing commitment to be a member of the work force. Cf. Odima v. Westin Tucson Hotel, 53 F.3d 1484, 1497 (9th Cir.1995); Sellers v. Delgado College, 902 F.2d 1189, 1195 (5th Cir.1990); Gallo v. John Powell Chevrolet, Inc., 779 F.Supp. 804, 814 (M.D.Pa.1991). Thus, the district court's conclusion that Plaintiff failed to exercise reasonable diligence does not appear to be...

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