Opinion
CIVIL ACTION NO. 01-0495 Section "C" (5)
April 8, 2003
Before the Court is Defendant's Motion In Limine to Exclude Evidence of Purported Lost Wages. For the following reasons Defendant's motion is GRANTED IN PART and DENIED IN PART.
Title VII claimants have a statutory duty to mitigate damages. 42 U.S.C. § 2000e-5 (g). In Sellers v. Delgado College, 902 F.2d 1189 (5th Cir. 1990), the Fifth Circuit defined this statutory duty as an obligation to find comparable employment:
[T]he 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. 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." "Substantially equivalent employment" is that "employment which affords virtually identical promotional opportunities, compensation, job responsibilities, working conditions, and status as the position from which the Title VII claimant has been discriminatorily terminated."Id., 902 F.2d at 1193 (Citations omitted). Further, "if an employer proves that an employee has not made reasonable efforts to obtain work, the employer does not also have to establish the availability of substantially equivalent employment." Id., citing Sellers II, 839 F.2d 1132, 1139 (5th Cir 1989). In Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927, 936 (5th Cir 1996) the Court of Appeals qualified a Title VII claimant's duty to obtain and maintain similar employment:
By adopting a requirement to use "reasonable and good faith" effort to maintain employment, reasonable diligence becomes a two part test. First, the claimant must exercise reasonable diligence in obtaining substantially similar employment. Second, in order to give effect to the statutory requirement to use reasonable diligence, it necessarily follows that the claimant must also use reasonable diligence in maintaining that substantially similar employment.Id. (Citations omitted)
Plaintiff's employment with Union Carbide ended on March 1, 2000. It is undisputed that at the time of termination her salary was approximately $48,000. On May 10, 2000, Plaintiff secured subsequent employment at Wal-Mart as a sales associate with a starting rate of pay $5.40 per hour until August 12, 2000, when her pay increased to $5.62 per hour. This sales associate position is not comparable with her technician position at Union Carbide, because the jobs have no similar responsibilities, compensation or promotional opportunities. On September 7, 2000 Plaintiff abandoned her position at Wal-Mart and has not sought any other employment since.
In her EEOC charge, dated May 29, 2000, Plaintiff stated that Union Carbide "discharged me assuming that I could not work anywhere in the plant, although my doctor had only told them that I could not work in the same unit." (Rec. Doc. 123, Ex. B). Also, at her deposition on May 14, 2002, Plaintiff testified that "Dr. Olmstead had only restricted me from the PA unit, not from the whole plant." (Id., Ex. C at 157). These admissions by Plaintiff indicate that up until May 2002, she and her doctor believed that she was capable of performing comparable work.
In opposition Plaintiff submits that on December 5, 2002, Dr. Dennis Gruwell, Union Carbide's expert witness found that "she was disabled from all operator work in a chemical plant." (Rec. Doc. 132 citing Ex. 1) (emphasis in original). Yet, Plaintiff's characterization of Dr. Gruwell's opinion is overly broad. Dr. Gruwell more accurately stated that Plaintiff "could not work alone nor perform safety critical work," and that "based on medical judgment, [she] was restricted for working in complex #3." (Id., Ex. 1). He concluded his report stating, "I do not feel that she could function as a production technician in any other unit at the site [however] [s]he could do laboratory work or clerical work of a non-safety critical nature." (Id.). Thus, Dr. Gruwell's opinion does not rule out Plaintiff's ability to perform substantially equivalent employment.
Later on January 17, 2003, in response to Defendant's interrogatory concerning her job search, Plaintiff answered, "[a]fter her LDW at UCC, she was initially too depressed to look for work. She discussed looking for work with Dr. Olmstead at least by April 30, 2000. Dr. Olmstead had told her that she was not really ready to go back to work because of her lack of concentration, not trusting men, and not knowing where she fit in." (Rec. Doc. 123, Ex. A). This more recent answer in 2003, contradicts Plaintiff's earlier admissions in her EEOC charge and her deposition testimony discussed above, and creates a disputed issue of fact.
Also, in the same interrogatory response, Plaintiff admits that she began working at Wal-Mart on May 10, 2000, but that "[a]fter her MVA's [motor vehicle accidents] she did not look for work." (Id.). In her opposition, Plaintiff admits again that "[s]everal months into the Wal Mart job, she was totally disabled from all work because of two MVA's" and "lost even her residual work capacity." (Rec. Doc. 132 at 4).
Plaintiff claims that as result of the harassment she experienced at Union Carbide, she was medically incapable of performing comparable work. Likewise, the evidence as to this claim is disputed. As discussed above, both Plaintiff and Dr. Olmstead indicate that she was capable of performing comparable work in 2000 through 2002. See Roussell v. Harmony Corp., Civ. A. No. 01-0436, 2002 WL 1467873 at *8 (E.D.La., July 9, 2002) (Vance, J.) (rejecting lost wage claim where treating physician told plaintiff she could return to work but recommended she not return to same department or area as her harasser). However, other evidence presented indicates that she may not have been capable of performing comparable work.
Plaintiff's expert, Dr. Christopher Borrillo found that her depression was the result of "two major psychological stresses in her life around the time she was first diagnosed with depression. . . . her work-related stress and family relational problems." (Rec. Dcc. 132, Ex. 2). Also, Dr. Borrillo commented on the fact that depression was identified as part of Plaintiff's family medical history and he opined that her ability to recover was Impacted by "her poor coping-skills." (Id.). Dr. Borrillo's report does not definitively state that the alleged harassment was the cause of Plaintiff's depression, nevertheless, it is disputed enough to survive summary judgment.
However, Plaintiff is not entitled to recover any award for lost wages after the date of her automobile accidents when she became totally disabled from performing all work. See Rudisell v. S.H.R.M. Catering Services, Inc., Civ. A. No. 92-3212, 1994 WL 50248 at *3 (E.D.La., Feb. 11, 1994).
Accordingly, IT IS ORDERED that Defendant's, Union Carbide Corporation's Motion In Limine to Exclude Evidence of Purported Lost Wages is hereby GRANTED with respect to any award subsequent to her automobile accident and DENIED as to the time period from March 1, 2000 to September 7, 2000.