Floca v. Homcare Health Services, Inc.

845 F.2d 108, 1988 U.S. App. LEXIS 6482, 46 Empl. Prac. Dec. (CCH) 37,988, 46 Fair Empl. Prac. Cas. (BNA) 1433, 1988 WL 40226
CourtCourt of Appeals for the Fifth Circuit
DecidedMay 18, 1988
DocketNo. 87-1468
StatusPublished
Cited by12 cases

This text of 845 F.2d 108 (Floca v. Homcare Health Services, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Floca v. Homcare Health Services, Inc., 845 F.2d 108, 1988 U.S. App. LEXIS 6482, 46 Empl. Prac. Dec. (CCH) 37,988, 46 Fair Empl. Prac. Cas. (BNA) 1433, 1988 WL 40226 (5th Cir. 1988).

Opinion

THORNBERRY, Circuit Judge:

Appellant, Christina Pagano Floca, successfully proved employment discrimination in her Title VII suit. She appeals, however, because the district court declined to award front pay and back pay and awarded only nominal damages. Because we believe the district court wrongly applied the burden of proof on the issue of mitigation of damages and erroneously determined that a job as a registered nurse is substantially equivalent to a job as a director of nursing, we vacate and remand on the issue of the denial of back pay. We affirm the denial of front pay, however, because Floca voluntarily removed herself from the job market to enter school to learn a new career.

I

Christina Pagano Floca began working for Home Health and Family Care (the “Agency”) as its Director of Nursing on December 12, 1980. She was 28 years old, had a Masters Degree in Nursing, and had completed half of the requirements for her doctoral degree at the University of Texas. Her job duties were largely public relations, but also included hiring hospital staff, training the staff, and supervising nurses and nurse’s aids. Prior to this job, Floca had worked as a staff nurse in several hospitals. She had never previously worked as a nursing director.

In early 1981, Floca discovered that she was pregnant. She informed her boss, Mrs. Jackson, of the pregnancy on February 2. Jackson responded by informing Floca that she would no longer be able to represent the Agency in the community. Jackson further told her that she could continue to work only until June 1, or until August 1 if she would train her own replacement. No reason other than the pregnancy was given as to why Floca could not continue to work. Floca resigned on June 20, and her letter of resignation stated that she did'not leave voluntarily. She was not eligible for the Agency’s maternity leave policy, which required at least one year of prior full-time employment.

Floca filed a Charge of Discrimination with the Equal Employment Opportunity Commission (the “EEOC”) on August 25, 1981. The EEOC issued its Notice of Right to Sue Letter on November 22, 1985. Thus, Floca filed this Title VII action.

The case was tried before the district court, without a jury, in April 1987. In May 1987, the court issued its memorandum opinion. The district judge found that “it would be difficult to create a maternity leave policy which would impose a harsher penalty on employees” than the Agency’s. He also found that after Floca had established her prima facie case by proving the maternity policy’s discriminatory effect on women, the defendants had been unable to present any evidence justifying the policy. Additionally, the judge found that Floca’s pregnancy was a “substantial motivating factor” in the decision to fire her. Thus, the district judge held that the defendants were liable under Title VII. The defendants do not appeal this decision.

Although the district judge found the defendants liable under Title VII, he nonetheless awarded Floca only nominal damages. Regarding damages, the judge wrote:

The .Plaintiff also seeks an award of back pay in this suit. In order to be entitled to back pay, an employee must make a “reasonable effort” to find other suitable employment. 42 U.S.C. Section 2000e-5(g)_ In the present case, Mrs. Floca testified that she made a reasonable effort to seek other employment, but that she could not find comparable work. The Court, however, finds that Plaintiff’s testimony that she used reasonable diligence to find other employment is not credible. Additionally, the Court further finds that Mrs. Floca voluntarily removed herself from the job market in order to begin and raise a family. As such, the Court is of the opinion that an award of back pay is [111]*111inappropriate because Plaintiff has completely failed to mitigate damages.
... In this suit, the Court believes an award of front pay is not proper for the same reasons stated in denying the Plaintiff back pay.

Floca appeals the denial of back pay and front pay.

II

Back pay is awarded to put victims of unlawful discrimination in the position in which they would have been but for the discrimination. Sellers v. Delgado Community College, 839 F.2d 1132, 1136 (5th Cir.1988). In Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 2370-71, 45 L.Ed.2d 280 (1975), the Supreme Court held that although awarding back pay is discretionary, such discretion must be exercised in light of the objectives of Title VII. The purposes of Title VII are to achieve equality of employment opportunity and to make persons whole for injuries suffered on account of unlawful employment discrimination. Id. 95 S.Ct. at 2371-72. It is clear, however, that Title VII claimants have a duty to minimize their damages by seeking other suitable employment. Sellers, 839 F.2d at 1136.

Once a plaintiff has made out a prima facie case of discrimination and has presented evidence on damages, the burden of proof shifts to the defendant to prove that substantially equivalent employment positions were available and that the claimant failed to use reasonable diligence in seeking those positions. Sellers, 839 F.2d at 1138; Rasimas v. Michigan Department of Mental Health, 714 F.2d 614, 623 (6th Cir.1983).

The trial judge based his determination that Floca had failed to mitigate damages on three factors: his conclusion that Flo-ca’s testimony about her efforts to find other work was not credible, his fact determination that she removed herself from the job market to raise a family, and evidence that she could easily have found a nursing job. Floca contends that the conclusion that she could easily have found a nursing job is irrelevant, because a nursing job is not substantially equivalent to her supervisory job with the defendant. Also, she argues that the judge improperly placed the burden of proof on the mitigation issue on her. Additionally, she states that the trial judge improperly took judicial notice of the availability of nursing jobs.

Floca testified that she sought various job positions, but that she would not accept a position as a registered nurse (RN) because it would be frustrating and underpaid. She asserts that an RN staff position clearly is not the substantial equivalent to her previous job, which involved hiring, firing, training, and supervising staff nurses.

The defendants assert that they proved the availability of other job opportunities. One witness testified that there was no difficulty finding nursing positions in the Bell County area and that there were jobs for licensed vocational nurses (LVNs), RNs and supervisory nursing positions. Another witness testified that she could have obtained employment as an RN in 1981 in the Bell County area. The defendants also note that although Floca stated that she would not accept a position as a registered nurse (RN) because it would be frustrating and underpaid, she had previously worked as a staff nurse on several occasions after receiving her masters degree.

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845 F.2d 108, 1988 U.S. App. LEXIS 6482, 46 Empl. Prac. Dec. (CCH) 37,988, 46 Fair Empl. Prac. Cas. (BNA) 1433, 1988 WL 40226, Counsel Stack Legal Research, https://law.counselstack.com/opinion/floca-v-homcare-health-services-inc-ca5-1988.