Miller v. Marsh

• Decision Date: 23 July 1985
• Docket Number: No. 84-7497,84-7497
• Citation: 766 F.2d 490
• Parties: 38 Fair Empl.Prac.Cas. 805, 38 Empl. Prac. Dec. P 35,680 Barbara C. MILLER, Plaintiff-Appellant, v. John O. MARSH, Secretary of the Army, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 490

766 F.2d 490

38 Fair Empl.Prac.Cas. 805,

38 Empl. Prac. Dec. P 35,680

Barbara C. MILLER, Plaintiff-Appellant, v. John O. MARSH, Secretary of the Army, Defendant-Appellee.

No. 84-7497.

United States Court of Appeals, Eleventh Circuit.

July 23, 1985.

Frank W. Donaldson, U.S. Atty., Caryl P. Privett, Asst. U.S. Atty., Birmingham, Ala., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before RONEY and CLARK, Circuit Judges, and PITTMAN, ^* District Judge.

RONEY, Circuit Judge:

The district court granted summary judgment to defendant in this Title VII sex discrimination case both on the merits and because it was untimely filed. Since sex discrimination was conceded, the sole issue on the merits was whether the district court erred in denying her claim for back pay on the ground that she had voluntarily withdrawn from the labor market by entering law school. Although plaintiff's claim was timely filed, we hold on the facts of this case that plaintiff did leave the labor market so the judgment of the district court denying back pay is affirmed.

The parties stipulated to the following facts for purposes of the summary judgment motion. Plaintiff was employed as a temporary clerk stenographer for the Army in May 1978. Her position was to end no later than September 29, 1978. That summer she interviewed for a position as a Contract Specialist for the Army Corps of Engineers (Corps). She was not selected. Believing she had been discriminated against on the basis of her sex and age, plaintiff initiated a formal administrative discrimination complaint on August 28, 1978. Under Title VII and the relevant regulations, Government employees are expected to initiate their Equal Employment Opportunity (EEO) complaints with the agency that employs them. They then have a right to appeal to the Equal Employment Opportunity Commission (EEOC) in Washington.

The Corps determined that plaintiff was a victim of sex, but not age, discrimination, and so informed her by memorandum dated February 7, 1979. The memorandum recommended that plaintiff be "retroactively appointed to include back pay minus any other income earned and any times that she was not ready, willing, and available for employment."

Plaintiff had left her temporary job on September 15, 1978, while her appeal was still pending with the Corps. She entered law school at Mercer University three days later.

The district court granted summary judgment against plaintiff as to back pay on the ground that the plaintiff had voluntarily removed herself from the labor market by enrolling as a law student on a full-time basis. The court found that as a full-time student, plaintiff was not "ready, willing, and available for employment," as the defendant might require. Back pay awards in Title VII cases are reviewed for abuse of discretion. See Taylor v. Safeway Stores, Inc., 524 F.2d 263, 267 (10th Cir.1975); Head v. Timken Roller Bearing Co., 486 F.2d 870, 876 (6th Cir.1973). They will be reversed, of course, if the district court incorrectly applies the law. The thrust of plaintiff's appeal is that, although she was in law school, she was willing to leave school to take the Corps job if it were offered to her. There is some support in the facts for this position. In our judgment, however, it misapplies the legal meaning of the requirement that a plaintiff be "ready, willing, and available for employment" to support a back pay award. There is a statutory duty to minimize damages. Ford Motor Co. v. EEOC, 458 U.S. 219, 231, 102 S.Ct. 3057, 3065, 73 L.Ed.2d 721 (1982). This duty is not fulfilled by a readiness to accept only the job sought with the defendant. The plaintiff must be available and willing to accept substantially equivalent employment elsewhere. "A Title VII plaintiff who is unlawfully terminated, however, is required to mitigate damages by being reasonably diligent in seeking employment substantially equivalent to the position she or he lost." Nord v. U.S. Steel Corp., 758 F.2d 1462, 1470 (11th Cir.1985).

Plaintiff applied to law school prior to her unsuccessful attempt to find permanent employment with the Corps. She resigned her temporary job and entered Mercer Law School in Georgia three days later. There is no evidence that she pursued any employment other than the job that was the focus of her discrimination claim. Her time commitment as a first-year law student would necessarily preclude her from accepting employment equivalent to her former position. The fact that she did leave school after receiving a "final decision" letter March 6, 1979 is not dispositive. The letter stated that plaintiff had to begin work within two weeks. While she did report for work on March 13, she missed no more than a week of classes before quitting work and returning to Mercer. On these facts, the district court could determine that plaintiff removed herself from the job market.

Although no Eleventh Circuit or controlling Fifth Circuit precedent has been cited to us on point, the court in Taylor v. Safeway Stores, Inc., 524 F.2d 263 (10th Cir.1975), faced a similar problem. It was held there that

[W]hen an employee opts to attend school, curtailing present earning capacity in order to reap greater future earnings, a back pay award for the period while attending school also would be like receiving a double benefit. We fail to see that the district court abused its discretion in not including the time Taylor was attending school in the computation of the back pay award.

Id. at 268. See also Washington v. Kroger, 671 F.2d 1072 (8th Cir.1982); Williams v. Trans-World Airlines, Inc., 507 F.Supp. 293 (W.D.Mo.1980); United States v. Wood, Wire and Metal Lathers, Local 46, 328 F.Supp. 429 (S.D.N.Y.1971).

The two cases relied on by plaintiff provide no base for this Court to reverse the district court. In EEOC v. Ford Motor Co., 645 F.2d 183 (4th Cir.1981), rev'd on other grounds, 458 U.S. 219, 102 S.Ct. 3057, 73 L.Ed.2d 721, adhered to original position on remand, 688 F.2d 951 (4th Cir.1982), the court held that two plaintiffs did not remove themselves from the labor market when they entered a CETA nurses training program. The court found that CETA training "closely resembled employment" in that wages were paid for the time spent in training. Additionally, the court noted that plaintiffs would have lost their unemployment benefits had they not accepted the CETA training. They were by no means voluntarily removing themselves from the job market, and the record evidence in that case clearly established that fact.

In Hanna v. American Motors Corp., 724 F.2d 1300 (7th Cir.1984), the district court found that Hanna was at all times "ready, willing, and available to accept employment" during the time he was enrolled as a full-time student. Hanna looked for work for four months before enrolling in college. He stayed only one semester, sought employment for another nine months and then started classes again. No such evidence is...