                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                                 JUN 4 1998
                                   TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 JOSEPH F. WIECZOREK,

          Plaintiff - Appellant,
 v.
                                                            No. 97-1154
                                                        (D.C. No. 95-B-1528)
 SOUTHERN PACIFIC
                                                        (District of Colorado)
 TRANSPORTATION COMPANY, a
 Delaware corporation,

          Defendant - Appellee.




                             ORDER AND JUDGMENT *


Before SEYMOUR, ANDERSON and LUCERO, Circuit Judges.



      Mr. Wieczorek appeals from a jury verdict, contending that the district

court erred by instructing the jury on the affirmative defense of failure to mitigate

damages. Alternatively, he argues that the mitigation instruction was plainly

erroneous. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.




      *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
      Plaintiff was injured while in the employ of Southern Pacific

Transportation Company (“Southern Pacific”). He filed a civil action against

Southern Pacific pursuant to the Federal Employers’ Liability Act (“FELA”), 45

U.S.C. §§ 51-60, asking for over $650,000 in damages. At the conclusion of trial

and over plaintiff’s objection, the district court agreed to instruct the jury on the

affirmative defense of failure to mitigate damages. The jury returned a verdict in

favor of plaintiff, assessing damages at $80,000. The jury also found that

plaintiff was 50% contributorily negligent, and the award was reduced by that

percentage resulting in a judgment in favor of plaintiff in the amount of $40,000.

      We first consider plaintiff’s argument that the district court erred by

instructing the jury on the duty to mitigate damages, contending that the

instruction was unsupported by evidence in the record. Southern Pacific responds

that the evidence before the jury was sufficient to support the instruction. See

Wilson v. Union Pac. R.R., 56 F.3d 1226, 1232 (10th Cir. 1995) (“[A] party is

entitled to an instruction based on its theory of the case whenever it produces

evidence to support it.”) (citing Trejo v. Denver & Rio Grande W. R.R., 568 F.2d

181, 184 (10th Cir. 1977)). “We review a district court’s decision . . . to give a

particular instruction . . . for abuse of discretion. As for the instructions

themselves, we conduct a de novo review to determine whether, as a whole, they

correctly stated the governing law and provided the jury with an ample


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understanding of the issues and applicable standards.” Harrison v. Eddy Potash,

Inc., 112 F.3d 1437, 1442 (10th Cir. 1997) (citations omitted).

      Our review of the record reveals sufficient evidence for the jury to

conclude that plaintiff failed to mitigate his damages. Plaintiff was 38 years old

at the time of the accident and the testimony of one of his treating physicians

indicated that he was capable of returning to sedentary work. See Dep. of John R.

Maggiore, M.D., at 8, in I Trial Tr., pt. 2. Plaintiff testified that after the

accident a representative of Southern Pacific discussed with him “off the record”

a job opportunity, which he did not accept. See I Trial Tr. at 100-01. Although

plaintiff contends that “[i]n context, it is clear that [he] did not consider [it] to be

a legitimate or viable job offer,” Appellant’s Reply Br. at 2, this question was

properly for the jury to decide. Plaintiff also testified that he did not take

advantage of the vocational counseling offered to him by Southern Pacific:

      I talked to — this is after the railroad had contacted me and set up a
      meeting with the railroad vocational person, and I went there and
      took a bunch of tests, and we talked about maybe computer drafting
      or maybe an electronics class or something. . . . I told him I wasn’t
      — I didn’t have a clue for what I wanted to do for the rest of my life.
      . . . And I told him that I would get back with him and let him know
      what I was thinking about. And I never really got back with the guy
      to finish talking about it.

I Trial Tr. at 102-03. This counselor testified that Southern Pacific was willing to

pay for a vocational rehabilitation program, but that plaintiff declined to enroll in

the program because he was unsure what he wanted to do with his career.

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      Plaintiff stated at trial that he sought counseling from the State of Colorado

Department of Rehabilitation. A rehabilitation counselor employed by the

Department testified by video deposition that his notes taken during plaintiff’s

intake interview stated: “[plaintiff] is not sure that the [Division of Vocational

Rehabilitation (“DBR”)] will be needed once he gets his settlements. He

primarily came to DBR on the advice of his lawyer.” Dep. of Charles L. Lackey

at 34-35, in II Trial Tr., pt. 1. The jury was entitled to interpret from this

evidence that plaintiff’s efforts to seek vocational counseling and employment

were less than genuine.

      This court has stated in the FELA context:

      An unemployed plaintiff who is able to look for work does not
      satisfy his duty to mitigate by waiting passively for employment to be
      offered. The opportunity to mitigate is not merely the opportunity to
      accept a job, but the opportunity to seek appropriate work when one
      is able to do so. If that opportunity is shown to have existed, the
      issue of mitigation should not normally be prevented from reaching a
      properly instructed jury.

Wilson, 56 F.3d at 1232 (emphasis added). From the evidence in the record, the

jury could properly find that an opportunity to seek appropriate work existed.

Because “[t]he question whether the conduct of plaintiff was reasonable effort in

the circumstances was a question of fact for the jury under proper instructions,”

Trejo, 568 F.2d at 184, the district court did not err in submitting a mitigation

instruction to the jury.


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      Plaintiff’s next contention — that the instructions were an erroneous

statement of the law because they did not inform the jury that defendant bore the

burden of establishing plaintiff’s duty to mitigate damages — also fails to

persuade us. Because plaintiff failed to object to the language of the instructions

on these grounds, we will not review them unless they are “patently plainly

erroneous and prejudicial.” Zimmerman v. First Fed. Sav. & Loan Ass’n, 848

F.2d 1047, 1054 (10th Cir. 1988) (quoting Moe v. Avions Marcel Dassault-

Breguet Aviation, 727 F.2d 917, 924 (10th Cir. 1984)). The instructions, read as

a whole, clearly state that failure to mitigate damages is an affirmative defense

and that defendant has the burden of establishing affirmative defenses by a

preponderance of the evidence. See II Trial Tr. at 351-53 (Instructions Nos. 1

and 4). They are not “patently plainly erroneous and prejudicial,” and we

therefore decline to review further the error to which plaintiff now objects.

      We AFFIRM the judgment of the district court.

                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge




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