                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-31-1995

Booker v Taylor Milk Company
Precedential or Non-Precedential:

Docket 94-3503




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                                                                1


                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT


                     Nos. 94-3503 & 94-3525


                       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 in No. 94-3503 and
                                Cross-appellee in No. 94-3525

                                Taylor Milk Company, Inc.,
                                Appellant in No. 94-3525 and
                                Cross-appellee in No. 94-3503



          Appeal from the United States District Court
            for the Western District of Pennsylvania
                   (D.C. Civ No. 91-cv-02021)



                      Argued June 13, 1995


      Before: STAPLETON, MCKEE and SEITZ, Circuit Judges.

                     Filed: August 31, 1995




Vaughn A. Booker, Esquire (Argued)
28 Douglass Road
Suite A-1
Woodbrook Circle
Lansdale, Pennsylvania 19446
                         2


Attorney for Appellant
                                                                   3


John A. McCreary, Jr., Esquire (Argued)
Henry L. Clement, III, Esquire
Volk, Robertson & Hellerstedt
Three Gateway Center
15th Floor East
Pittsburgh, Pennsylvania 15222

   Attorneys for Appellee



                        OPINION OF THE COURT


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. § 1331, and we
have jurisdiction pursuant to 28 U.S.C. § 1291.
                              I. FACTS

            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
                                                                     4


finding that his discharge was racially motivated and violative

of Title VII of the Civil Rights Act of 1964, see 42 U.S.C.
§§ 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.
                             II. DISCUSSION

            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

1
In addition, the district court subtracted "interim earnings,"
which Plaintiff had earned in the various "odd jobs" he held over
a four-year period between the wrongful discharge and his
reinstatement with Defendant.
                                                                     5


          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. § 2000e-5(g)(1); see also

Loeffler v. Frank, 486 U.S. 549, 558 (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 (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, 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. § 2000e-5(g)(1); see Ellis v. Ringgold Sch.
Dist., 832 F.2d 27, 29 (3d Cir. 1987), cert. denied, 494 U.S.

1005 (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
                                                                      6


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,
                                                                    7


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
                                                                    8


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
                                                                   9


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 clearly erroneous.

          However, Plaintiff maintains that the Times help-wanted

listings include postings for laborers, assembly workers, and

factory workers, which are not "substantially equivalent" to his

former position.   He argues that because they are not

"substantially equivalent" he was under no duty to apply for

these positions, and therefore, they should not be considered

sufficient proof of his failure to mitigate damages.     We address

that argument.
              b) Substantially Equivalent Employment

          The duty of a successful Title VII claimant to mitigate

damages is not met by using reasonable diligence to obtain any

employment.   Rather, the claimant must use reasonable diligence

to obtain substantially equivalent employment. See Ford Motor Co.

v. EEOC, 458 U.S. 219, 231-32 (1982); Anastasio, 838 F.2d at 708.

"Substantially equivalent employment is that employment which

affords virtually identical promotional opportunities,

compensation, job responsibilities, and status as the position

from which the Title VII claimant has been discriminatorily

terminated." Sellers, 902 F.2d at 1193; see Mitchell v. Humana
Hospital-Shoals, 942 F.2d 1581, 1583 n.2 (11th Cir. 1991); Ford,

866 F.2d at 873.
                                                                  10


          The record demonstrates that Defendant employed

Plaintiff as a "laborer" and "dock handler."   In those positions,

he was essentially an unskilled worker who loaded and unloaded

trucks and coolers.   Defendant's Exhibit 14 includes numerous

postings for laborers, general laborers, light labor positions,

and movers.   Although most of the postings do not include

information about specific job responsibilities, benefits, and

promotional opportunities, but see, e.g., Appendix at 36a, 43a,
65a, it is clear that on the whole, the positions would not

require Plaintiff to "go into another line of work, accept a

demotion, or take a demeaning position." Ford Motor Co., 458 U.S.

at 231. But see Tubari Ltd., Inc., 959 F.2d at 458-59 (stating

that it is reasonable for an unskilled worker to have accepted a

wide range of work); id. at 456-57 (explaining that as time wears

on, plaintiff may be required to lower his sights).   Furthermore,

to the extent it is indicated, the compensation for the positions

is substantially similar to Plaintiff's previous pay. Cf. Ellis,

832 F.2d at 30.

          The listings in Exhibit 14 appear to be substantially

similar to Plaintiff's previous positions with Defendant.

Therefore, the district court did not err in considering the

exhibit as evidence of Plaintiff's failure to mitigate damages.

          We are bound to accept the findings of the district

court unless we are left with a definite and firm conviction that

a mistake has been committed. See In re Cohn, 54 F.3d 1108, 1113
(3d Cir. 1995).   After reviewing the record, we conclude that the

district court's finding that Defendant had proven Plaintiff's
                                                                         11


failure to mitigate damages by a preponderance of the evidence is

not clearly erroneous.

            In its cross-appeal, Defendant argues that because

Plaintiff failed to mitigate damages, he is not entitled to any
back pay.    We turn now to that issue.
                     2. Defendant's Cross-appeal

            Defendant argues that because Plaintiff failed to

mitigate damages to some extent, he wholly forfeits the right to

back pay under Title VII.    The district court rejected

Defendant's "no mitigation-no backpay" argument.          Because this

issue involves the interpretation of section 2000e-5, our review

is plenary. See Johnson & Johnson-Merck v. Rhone-Poulenc Rorer,

19 F.3d 125, 127 (3d Cir. 1994).

            The plain language of section 2000e-5 shows that

amounts that could have been earned with reasonable diligence

should be used to reduce or decrease a back pay award, not to

wholly cut off the right to any back pay. See 42 U.S.C. § 2000e-

5(g)(1); see also Tubari Ltd., Inc., 959 F.2d at 453-54;

Anastasio, 838 F.2d at 708-09; 2 DAN B. DOBBS, LAW   OF   REMEDIES

§ 6.10(4), at 221-22 (2d ed. 1993).       Furthermore, Defendant's

"no-mitigation-no back pay" argument is inconsistent with the

"make whole" purpose underlying Title VII.

            As explained supra, back pay is designed to restore a
victim of discrimination to the economic position he would have

enjoyed absent the unlawful discrimination.      The Supreme Court

has instructed that "given a finding of unlawful discrimination,

backpay should be denied only for reasons which, if applied
                                                                   12


generally, would not frustrate the central statutory purposes of

[Title VII]." See Albemarle Paper Co., 422 U.S. at 421.   Here,

the district court found that even had Plaintiff successfully

mitigated his damages, he would still not have been made "whole"

absent the award of some back pay.   Based on the evidence before

it, the district court concluded that the amount Plaintiff could

have earned in a substantially equivalent position would have

been less than what he would have earned in Defendant's employ.

Thus, a denial of all back pay under the circumstances would

frustrate the make-whole purpose underlying Title VII.

           Defendant's reliance on the Supreme Court's decision in

Ford Motor Co. is misplaced.   In that case, the Court was

addressing the following issue:   "[W]hether an employer charged

with discrimination in hiring can toll the continuing accrual of

backpay liability under . . . Title VII simply by unconditionally

offering the claimant the job previously denied, or whether the

employer also must offer seniority retroactive to the date of the

alleged discrimination." See Ford Motor Co., 458 U.S. at 220

(footnote omitted).   Under that situation, a plaintiff can

entirely, or nearly, mitigate any loss by accepting the job once

denied, and, further, that rule satisfies Title VII's second

goal─to end unlawful discrimination.   In the present case, there

was no "Ford offer," and, as the district court found, even with
reasonable diligence, Plaintiff could not have wholly mitigated

damages.   This fact distinguishes his case from others where

plaintiffs failed to seek jobs that would have compensated them

completely for their losses and elected to remain unemployed. See
                                                                    13


Hopkins v. Price Waterhouse, 920 F.2d 967, 981-82 (D.C. Cir.
1990); Cowan v. Prudential Ins. Co. of America, 852 F.2d 688, 690

(2d Cir. 1988).2

             We conclude that the district court was correct as a

matter of law in rejecting Defendant's "no mitigation-no backpay"

argument and in awarding Plaintiff back pay where it was

necessary to make him whole.    Although Plaintiff was granted back

pay, he argues that the district court abused its discretion in

calculating the amount of the award.
                      3. Calculation of Back Pay

          As stated, the district court reduced Plaintiff's back

pay award by the amount he could have earned with reasonable

diligence.    In calculating this amount, the district court turned

to Defendant's Exhibit 14 -- the Times help-wanted ads.     The

district court found that substantially equivalent positions were


2
Defendant's reliance on Phelps Dodge Corp. v. NLRB, 313 U.S. 177
(1941) and its progeny is also misplaced. In Phelps the Court
stated, "Since only actual losses should be made good, it seems
fair that deductions should be made not only for actual earnings
by the worker but also for losses which he willfully incurred."
Id. at 198 (emphasis added). Reading on, we think that by
"losses willfully incurred," the Court was referring to "wages
that might have been earned." See id. Therefore, Phelps could
fairly be read as holding that a deduction from back pay awards
should be made for those earnings which could have been earned
with reasonable diligence.
          In addition, we are unpersuaded by Defendant's citation
to our decision in Carden v. Westinghouse Elec. Corp., 850 F.2d
996 (3d Cir. 1988). First, the Carden court cites Ford Motor Co.
in support of its holding. As we have explained in the text,
Ford Motor Co. does not support Defendant's "no mitigation-no
backpay" argument. Second, as we read Carden, it seems to
support the position that a plaintiff's failure to mitigate
damages, as with a plaintiff who has "interim earnings," results
in a reduction in the back pay award. See id. at 1006.
                                                                     14


available and paid between $5.00 and $12.00 per hour.     It set

$8.50 per hour as an average and used it to calculate the set

off.   In addition, the court included overtime hours in its

calculation.     We review the district court's back pay calculation

for an abuse of discretion. See Shore v. Federal Express Corp.,
42 F.3d 373, 377-78 (6th Cir. 1994); Robinson, 982 F.2d at 898.

           Plaintiff argues that the district court abused its

discretion in computing his back pay award.      He maintains that

the back pay order is contrary to its Findings of Fact and

Conclusions of Law.    In its findings, the court stated,

"Defendant's Exhibit 14 and other evidence establishes that

minimum wage jobs were available . . . ." Appendix at 91A.

(emphasis added).     Plaintiff contends that the court was bound to

use the minimum wage, and not the higher wage actually used, in

reducing his back pay award.

           The evidence indicates that a number of substantially

similar positions were available, and those positions paid more

than minimum wage.    Although the district court stated that

"minimum wage" positions were available, the record supports its

decision to use a higher wage.    We conclude that the district

court did not abuse its discretion in calculating Plaintiff's

back pay and the set off.

           Finally, Plaintiff argues that the district court erred

in not awarding prejudgment interest on this award.     We turn now

to that issue.
                       B. Prejudgment Interest
                                                                  15


           The determination of whether to award prejudgment

interest in a Title VII case is committed to the sound discretion

of the district court. See Robinson v. SEPTA, Red Arrow, 982 F.2d
892, 897 (3d Cir. 1993).    Generally, a court of appeals will not

overturn the district court's determination of the

appropriateness of a prejudgment interest award absent an abuse

of discretion. See Gelof v. Papineau, 829 F.2d 452, 456 (3d Cir.

1987); see also Hadley v. VAM P T S, 44 F.3d 372, 376 (5th Cir.

1995).   The district court is deemed to have abused its

discretion only when the reviewing court is firmly convinced that

a mistake has been made. See Shore v. Federal Express Corp., 42

F.3d 373, 380 (6th Cir. 1994).

           Here, the district court denied Plaintiff's motion for

prejudgment interest.   In its order the district court recited in

relevant part:
                IT IS ORDERED that the motion be and hereby is
           denied for the following reasons:
                . . . .
                2. Interest on the back-pay and damage
           calculations is not appropriate in this case due to the
           conduct of plaintiff following [Defendant's] illegal
           employment decision . . . ;
                3. The conduct of plaintiff contributed to an
           inflated claim for back-pay and therefore the equities
           do not weigh in favor of awarding pre-judgment interest
           on the damage award;
                4. Plaintiff did not suffer from the loss of the
           use of funds during the relevant period; and
                5. The award of back-pay and the damage
           calculations are fair, reasonable and appropriate under
           the circumstances, without more.

Plaintiff's Br. at 28-29.   Although the district court is not

specific, the parties agree that the "conduct" referred to by the
                                                                  16


district court is Plaintiff's failure to mitigate damages. See
id. at 19; Defendant's Br. at 15.

          Title VII authorizes prejudgment interest as part of

the back pay remedy in actions against private employers. See

Loeffler v. Frank, 486 U.S. 549, 557 (1988).   As with the back

pay award, prejudgment interest helps to make victims of

discrimination whole. See Green v. USX Corp., 843 F.2d 1511, 1530

(3d Cir. 1988).   The award of prejudgment interest is

compensatory in nature; it serves to compensate a plaintiff for

the loss of the use of money that the plaintiff otherwise would

have earned had he not been unjustly discharged. See Chandler v.

Bombardier Capital, Inc., 44 F.3d 80, 83 (2d Cir. 1994); Berndt

v. Kaiser Aluminum & Chemical Sales, Inc., 789 F.2d 253, 259 (3d

Cir. 1986).

          This court has stated, "To fulfill this [make-whole]

purpose, prejudgment interest should be `given in response to

considerations of fairness [and] denied when its exaction would

be inequitable.'" Green, 843 F.2d at 1531 n.16 (quoting Board of

Comm'rs of Jackson County v. United States, 308 U.S. 343, 352

(1939)) (second alteration in original).   This language has been

interpreted as supporting a strong presumption in favor of

awarding prejudgment interest, except where the award would

result in "unusual inequities." See id.; Brock v. Richardson, 812
F.2d 121, 127 (3d Cir. 1987); see also Barbour v. Merrill, 48

F.3d 1270, 1279 (D.C. Cir. 1995).   Accordingly, a district court

may exercise its discretion to depart from this presumption only
                                                                     17


when it provides a justification that reasonably supports the

departure.

          In the present case, the district court found that the

award of back pay alone wholly compensated Plaintiff, and that,
because Plaintiff's conduct contributed to an inflated back pay

claim, the equities weighed against prejudgment interest.

Furthermore, it concluded that Plaintiff did not suffer the loss

of the use of funds following the unlawful discharge.

             We agree with those courts that have held that a

plaintiff's failure to mitigate damages, alone, is insufficient

to overcome the presumption in favor of a prejudgment interest

award. See, e.g., Hutchison v. Amateur Elec. Supply, Inc., 42

F.3d 1037, 1047-48 (7th Cir. 1994); Donnelly v. Yellow Freight

Sys., Inc., 874 F.2d 402, 411 (7th Cir. 1989).     First,

Plaintiff's reduced back pay award reflects his failure to

mitigate damages.     Second, even had Plaintiff met his duty to

mitigate losses, he would not be made whole absent an award of

some back pay.     Because Plaintiff was entitled to some back pay

as a result of his unlawful termination, under the present

circumstances he is entitled to prejudgment interest for the loss

of the use of the amount included in the back pay award.

             We find, therefore, that the district court's

conclusion was not consistent with a sound exercise of

discretion.
                            III. CONCLUSION

             For the foregoing reasons, we will affirm the August 8,

1994 order of the district court awarding Plaintiff certain back
                                                                   18


pay.   We will reverse the August 22, 1994 order of the district

court denying Plaintiff's request for prejudgment interest on the

back pay award and direct the entry of an appropriate amount.
