12-1886-cv
Bergerson v. N.Y.S. Office of Mental Health

                     UNITED STATES COURT OF APPEALS
                         FOR THE SECOND CIRCUIT

                               SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
"SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

           At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
the 9th day of May, two thousand thirteen.

PRESENT:  JOHN M. WALKER, JR.,
          DENNY CHIN,
                    Circuit Judges,
          JANE A. RESTANI,
                    Judge.*
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CHRISTINE A. BERGERSON,
                    Plaintiff-Appellant,

                       -v.-                                  12-1886-cv

NEW YORK STATE OFFICE OF MENTAL HEALTH,
CENTRAL NEW YORK PSYCHIATRIC CENTER,
                    Defendant-Appellee.

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FOR PLAINTIFF-APPELLANT:            A.J. BOSMAN, Bosman Law Firm,
                                    L.L.C., Rome, New York.



      *
          The Honorable Jane A. Restani, of the United States
Court of International Trade, sitting by designation.
FOR DEFENDANT-APPELLEE:        JULIE SHERIDAN, Assistant
                               Solicitor General (Barbara
                               Underwood, Solicitor General,
                               Andrea Oser, Deputy Solicitor
                               General, on the brief), for Eric
                               T. Schneiderman, Attorney General
                               of the State of New York, Albany,
                               New York.

            Appeal from the United States District Court for the

Northern District of New York (Hurd, J.).

            UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

            Plaintiff-appellant Christine A. Bergerson appeals the

district court's April 3, 2012 supplemental judgment, entered

pursuant to the court's April 3, 2012 memorandum-decision and

order, awarding her back pay from January 31, 2006 until

September 26, 2007, but denying her back pay after September 26,

2007.   We assume the parties' familiarity with the underlying

facts, the procedural history, and the issues on appeal.

            Following trial, a jury found that Bergerson's

employment at Central New York Psychiatric Center ("CNYPC") had

been wrongfully terminated in violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title

VII"), and awarded her damages.    The district court denied

Bergerson back pay on the ground that the jury's award was


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sufficient to make her whole.    We subsequently vacated the

judgment as to back pay and remanded the case to the district

court with instructions to hold a separate inquest and to

"carefully articulate its reasons" if it denied back pay.

Bergerson v. N.Y.S. Office of Mental Health, 652 F.3d 277, 287

(2d Cir. 2011) (citation omitted).      On remand, after an inquest,

the district court held that:

         Bergerson failed to act reasonably when she
         voluntarily left [St. Lawrence Psychiatric
         Center ("SLPC")] and returned to Birnie Bus,
         where she earned substantially less money
         and was not provided with insurance or
         benefits. Plaintiff's reasons for resigning
         from SLPC -- primarily the lengthy commute,
         time away from her family, and loneliness in
         a new environment -- are personal in nature
         and do not amount to unreasonable working
         conditions. Therefore, Bergerson is only
         entitled to back pay from January 31, 2006
         (the date of her termination from CNYPC) to
         September 26, 2007 (the date she voluntarily
         resigned from her position at SLPC).

Bergerson v. N.Y.S. Office of Mental Health, 853 F.

Supp. 2d 238, 243-44 (N.D.N.Y. 2012).

         On appeal, Bergerson argues that the district court

erred by denying her back pay after September 26, 2007 on the

ground that she failed to mitigate damages by resigning from

SLPC for personal reasons.

         We review for abuse of discretion a district court's

denial of back pay under Title VII.      See Albemarle v. Paper Co.

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v. Moody, 422 U.S. 405, 424 (1975).     A district court abuses its

discretion when it rests its decision on an "erroneous view of

the law or on a clearly erroneous assessment of the evidence, or

render[s] a decision that cannot be located within the range of

permissible decisions."     Sims v. Blot (In re Sims), 534 F.3d

117, 132 (2d Cir. 2008) (citations and internal quotation marks

omitted).    We review for clear error a district court's factual

finding that a claimant failed to act reasonably in mitigating

damages.    See Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684,

696 (2d Cir. 1998).    "A finding is clearly erroneous when

although there is evidence to support it, the reviewing court on

the entire evidence is left with the definite and firm

conviction that a mistake has been committed."     United States v.

Ferguson, 702 F.3d 89, 93 (2d Cir. 2012) (citation and internal

quotation marks omitted).    We may affirm the judgment on any

ground supported by the record, even if not adopted by the

district court.    Adirondack Transit Lines, Inc. v. United

Transp. Union, Local 1582, 305 F.3d 82, 88 (2d Cir. 2002).

            An employee discharged in violation of Title VII has a

duty to mitigate damages by using "reasonable diligence in

finding other suitable employment."     Hawkins, 163 F.3d at 695

(citation and internal quotation marks omitted); see also 42

U.S.C. § 2000e-5(g)(1).     "This obligation is not onerous and
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does not require her to be successful."     Hawkins, 163 F.3d at

695.   A plaintiff who, for personal reasons, resigns from or

declines a job substantially equivalent to the one she was

denied has not adequately mitigated damages.     See Ford Motor Co.

v. EEOC, 458 U.S. 219, 231-32 (1982); Hawkins, 163 F.3d at 696.

But an employee "need not go into another line of work, accept a

demotion, or take a demeaning position," Dailey v. Societe

Generale, 108 F.3d 451, 455-56 (2d Cir. 1997) (citation and

internal quotation marks omitted), and "a voluntary quit does

not toll the back pay period when it is motivated by

unreasonable working conditions or an earnest search for better

employment," Hawkins, 163 F.3d at 696 (citation and internal

quotation marks omitted).

          Generally, the defendant employer seeking to avoid a

back pay award bears the burden of demonstrating that the

plaintiff failed to mitigate damages.     Broadnax v. City of New

Haven, 415 F.3d 265, 268 (2d Cir. 2005).    "This may be done by

establishing (1) that suitable work existed, and (2) that the

employee did not make reasonable efforts to obtain it."     Id.

(quoting Dailey, 108 F.3d at 456).    An exception to this general

rule is that 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
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employment."   Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 54

(2d Cir. 1998).   Nevertheless, "the employer, not the

employee, . . . bears the burden on the issue of effort to seek

employment."   Broadnax, 415 F.3d at 268.

         Here, the district court erred by concluding that

Bergerson failed to mitigate damages by voluntarily resigning

from SLPC on September 26, 2007.   As the district court noted,

one of Bergerson's primary reasons for resigning from SLPC was

"the lengthy commute."   It is undisputed that it took Bergerson

two and a half to three hours to travel to SLPC from her home in

Rome, New York.   Such an onerous commute undoubtedly constitutes

unreasonable working conditions, and Bergerson was not obligated

to mitigate damages by pursuing or continuing employment located

such an unreasonable distance from her home.   See, e.g., Eassa

v. Hartford Fire Ins. Co., No. 90-CV-321, 1991 U.S. Dist. LEXIS

17309, at *28 (N.D.N.Y. Nov. 29, 1991) ("The long-settled rule

in the labor area is that a wrongfully discharged employee need

not accept, in mitigation of damages, employment that is located

an unreasonable distance from his home." (quoting Spagnuolo v.

Whirlpool Corp., 717 F.2d 114 (4th Cir. 1983)); accord Donlin v.

Philips Lighting N. Am. Corp., 581 F.3d 73, 89 (3d Cir. 2009);

Oil, Chem. & Atomic Workers Int'l Union v. NLRB, 547 F.2d 598,

603 (D.C. Cir. 1976) (citing cases).   Accordingly, it was error
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for the district court to conclude that Bergerson failed to

mitigate damages by voluntarily resigning from SLPC.

         Nevertheless, we affirm the district court's judgment

because we conclude that defendant met its burden of showing

that Bergerson made no reasonable efforts to seek comparable

employment after she left SLPC on September 26, 2007.     See

Greenway, 143 F.3d at 54.     During the inquest, when Bergerson

was asked whether she sought other employment after leaving

SLPC, she replied, "I returned back to Birnie [Bus]."     In

addition, Bergerson subsequently worked part-time for the School

For The Deaf.    These positions, however, were not comparable

employment.     See, e.g., id. (work at temporary agency and

participation in training program were not suitable employment

for purposes of mitigating damages).     Further, Bergerson's

counsel conceded at oral argument that Bergerson did not pursue

other comparable employment after leaving SLPC.

         To the extent Bergerson now argues that she satisfied

her duty to mitigate by seeking comparable employment after she

was terminated by CNYPC in January 2006, this argument fails

because any such efforts took place a year and a half before she

left SLPC in September 2007, and it was certainly possible that

the job market had changed by the time she left SLPC.    Further,

even if defendant had undermined Bergerson's efforts to obtain
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comparable employment by providing her with poor references, it

would not have prevented her from looking for comparable

employment after leaving SLPC, particularly in view of the

passage of time since her discharge from CNYPC.

         Because defendant demonstrated that Bergerson failed

to mitigate damages after she left SLPC on September 26, 2007,

Bergerson was not entitled to back pay after that date.

         We have considered Bergerson's remaining arguments and

conclude they are without merit.   Accordingly, we AFFIRM the

judgment of the district court.

                             FOR THE COURT:
                             Catherine O'Hagan Wolfe, Clerk




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