Mary Juanita Sellers v. Delgado College

902 F.2d 1189, 1990 WL 69004
CourtCourt of Appeals for the Fifth Circuit
DecidedJune 27, 1990
Docket89-3129
StatusPublished
Cited by101 cases

This text of 902 F.2d 1189 (Mary Juanita Sellers v. Delgado College) 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
Mary Juanita Sellers v. Delgado College, 902 F.2d 1189, 1990 WL 69004 (5th Cir. 1990).

Opinion

E. GRADY JOLLY, Circuit Judge:

In this case that is before us for the third time, Mary Juanita Sellers, a successful Title VII claimant, appeals the denial of a back pay award for much of her ten-year post-termination period, which was based upon the magistrate’s finding that she failed to mitigate damages. She argues that Delgado College failed to carry its burden to show that she failed to mitigate. We hold that the district court was not clearly erroneous in finding that the evidence showed that Sellers had failed to exercise reasonable diligence to obtain substantially equivalent employment and thus failed to mitigate. We therefore affirm.

I

A

The facts and the procedural history antedating this appeal are well-documented in Sellers v. Delgado College, 839 F.2d 1132 (5th Cir.1989) (Sellers II). Mary Juanita Sellers served as a public relations officer at Delgado Community College from 1975 to February 1978, when she resigned. In 1982, she filed a Title VII action against Delgado, alleging that the college discriminated against her by employing a similarly qualified male in the same position at a higher salary and by discharging her constructively.

The district court referred the case to a magistrate, who tried it by consent of the parties. The magistrate held that Delgado violated Title VII and awarded Sellers damages. On appeal the first time, a panel of this court vacated and remanded the case to the magistrate to clarify the precise legal theory upon which its finding of discrimination was predicated. The court also remanded to clarify the back pay damages award and to consider fringe benefits and prejudgment interest. Sellers v. Delgado College, 781 F.2d 503 (5th Cir.1986) (Sellers I).

On remand, the magistrate clarified that liability was predicated on the unequal pay *1191 between Sellers and her male counterpart. Additionally, the court awarded back pay damages, calculated according to the difference between Sellers’ salary and that of her male counterpart, from May 1977, when it found that Sellers’ and her male counterpart’s duties merged, through December 1982, when Sellers resigned a clerical position at Gulf Oil Company; it tolled back pay for the period January 1983 to November 1983, the period following Seller’s resignation from Gulf, because it concluded that, by resigning from Gulf, Sellers had failed to mitigate damages; it awarded Sellers back pay for the period November 1983 to July 1984, when Sellers was employed as a biscuit-making instructor at Popeye’s, concluding that she had reentered the job market and, thereby, mitigated damages; it again tolled back pay for the period July 1984 to December 1984, the period following her resignation from Popeye’s, concluding that, by resigning from Popeye’s, Sellers had failed to mitigate; it awarded her back pay for the period after January 1985. Additionally, the magistrate awarded Sellers lost retirement and health benefits less the amount of those benefits earned during the time her back pay was tolled. The magistrate, however, denied Sellers front pay, concluding that Sellers would have attained a public relations position had she remained at Gulf; he also denied her prejudgment interest on her back pay award, concluding that constructive discharge was not a sufficient basis for such an award. Both Sellers and Delgado appealed.

In Sellers v. Delgado Community College, 839 F.2d 1132 (5th Cir.1988) {Sellers II), we expressed our dissatisfaction with the way the magistrate had fashioned the back pay award and once again vacated and remanded to the magistrate, suggesting that he should reconsider back pay damages from start to finish. Specifically, we held that the magistrate erred in tolling Sellers’ back pay for the time following her resignation from Gulf and Popeye’s to the extent that back pay was tolled on the basis of her resigning those jobs. We concluded that since a Title VII claimant has no obligation to accept employment that is not substantially equivalent to her prior employment in order to minimize damages, Ford Motor Company v. EEOC, 458 U.S. 219, 231 at n. 14, 102 S.Ct. 3057, 3065 at n. 14, 73 L.Ed.2d 721 (1982), she has no duty to remain in such a job. After comparing Sellers’ job responsibilities, salary, and promotional opportunities at Delgado with those at Gulf and Popeye’s, we reversed as clearly erroneous the magistrate’s finding that the positions were substantially equivalent; therefore, failure to mitigate could not be based upon her resigning from these positions.

In a part of our opinion that forms the backdrop of this appeal, we made clear the evidentiary burden of an employer following a finding of discrimination under Title VII. We reiterated that, although a successful Title VII plaintiff has a statutory duty to mitigate damages, the employer must prove that the plaintiff has failed to mitigate; to do so, the employer must demonstrate that comparable work was available and the plaintiff failed to use reasonable diligence to obtain it. 839 F.2d at 1139. Nevertheless, we concluded that, if the employer proves the plaintiff did not exercise reasonable diligence, he need not prove the availability of comparable employment. Id. We declined to decide whether Sellers had in fact exercised reasonable diligence. Holding that the magistrate had not made clear whether Delgado had demonstrated Sellers’ failure to use reasonable diligence, we remanded the case for specific findings concerning Sellers’ mitigation during the entire period after leaving Delgado. Id. We vacated the entire damage award and on remand, the magistrate was given discretion to take new evidence and remained “free to make new findings regarding the damage award.” Id. at 1140.

B

Accordingly, on remand, the magistrate held a further evidentiary hearing on damages, took new evidence and issued new findings of fact and conclusions of law. The magistrate held that, by not exercising reasonable diligence to find substantially *1192 equivalent employment, Sellers had failed to mitigate damages and, therefore, was not entitled to back pay for a substantial part of the period after she left Delgado. The magistrate effectively treated the denial of back pay in four periods. First, for the period February 1978 through February 1981, the magistrate found that Sellers made no attempt to find employment until the latter part of 1978; additionally, the magistrate, after discrediting Sellers’ testimony as to her efforts to find employment during this period, cited her minimal response to classified advertisements for substantially equivalent employment, her disregard of employment agencies, and her failure to place advertisements in newspapers and trade journals as evidence of her failure to use reasonable diligence during this time.

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Bluebook (online)
902 F.2d 1189, 1990 WL 69004, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mary-juanita-sellers-v-delgado-college-ca5-1990.