Summary
holding that, as a matter of law, plaintiff failed to mitigate when she only made one attempt to find a comparable managerial job and defendant had shown that such jobs were available
Summary of this case from Anderson v. Graybar Electric Company, Inc.Opinion
NO. 4:02-CV-00190-SEB-WGH.
October 22, 2004
ENTRY GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON DAMAGES
This is an employment discrimination case brought under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Plaintiff, Hazelene Hutton ("Ms. Hutton"), alleges that her employer, Defendant, Sally Beauty Company, Inc. ("Sally Beauty"), terminated her employment as store manager because of her age. Defendant moves for summary judgment on damages, claiming that even if Plaintiff were to prove age discrimination, she would not be entitled to damages for her alleged failure to reasonably mitigate damages. For the reasons given below, we GRANT Defendant's Motion for Summary Judgment on Damages.
Factual Background
Ms. Hutton, a resident of Mitchell, Indiana, began working for Sally Beauty — the world's largest distributor of professional beauty supplies — in its Bedford store in May 1998. Initially a salesperson, she was quickly promoted to store manager, the position she retained until her employment was terminated three and-a-half years later, on November 26, 2001. At the time of her termination, Plaintiff was 58 years old. Plaintiff alleges her employer's reasons for terminating her repeated absences without proper notification — were a pretext for age discrimination and that Sally Beauty was motivated to create the vacancy in order to promote the assistant manager, a person then 33 years old. Compl. ¶¶ 10-12.
As store manager, Ms. Hutton's duties included hiring and supervising the sales staff, handling the store paperwork, analyzing sales and cashiering functions, stocking and pricing the inventory, reconfiguring the display and cleaning the premises on days she closed up the store. Compl. ¶ 16; Def.'s Br. at 2; Ex. A., Hutton Dep. pp. 47-48. In November 2001, Ms. Hutton's annual base salary at Sally Beauty was $18,072. Pl.'s Opp'n Br.; Hutton Aff. ¶ 3.
While Ms. Hutton managed the Bedford Sally Beauty store, she also held a part-time bartender job at the American Legion Post 250 ("American Legion") in neighboring Mitchell. She worked approximately 43 hours a week at Sally Beauty and an eight-to-ten hour shift on Fridays at the American Legion. Hutton Dep. p. 46. The part-time bartending job was a non-managerial, hourlypaid position ($7.00/hr). Def.'s Br.; Hutton Dep. pp. 46, 248.
On November 27, 2001, the day after Plaintiff's termination from Sally Beauty, she began working full-time as a bartender at the American Legion. Def.'s Br.; Hutton Dep. 16, 258-259. Ms. Hutton earned $14, 273.00 in 2002 as an hourly bartender; $3,799.00 less than her Sally Beauty salary. Pl.'s Opp'n Br. at 6. On October 1, 2003, Ms. Hutton was promoted from bartender to bar manager and in mid-December 2003, she was paid a salary of $19,500 a year. Pl.'s Opp'n Br.; Hutton Aff. ¶¶ 2-3. Sally Beauty's vocational expert, Dr. Rod Durgin, believes that Plaintiff's current salary — slightly higher than her Sally Beauty salary in 2001 — indicates she is no longer underemployed and is earning an income commensurate with her earning capacity. Pl.'s Opp'n Br., Durgin Dep. pp. 33, 48.
As stated above, once Ms. Hutton was terminated by Sally Beauty she immediately increased her bartending hours to full-time at the American Legion. Approximately six months later, Hutton applied and was interviewed for a receptionist position at the JCPenney beauty salon in Bedford, although she never heard back from the salon. Def.'s Br.; Hutton Dep. p. 251. By her own admission, Ms. Hutton made no other attempts to find a job other than increasing her American Legion bartending hours from part-time to full-time.
Dr. Durgin was hired by Sally Beauty to assess Ms. Hutton's "present capacity to perform work and earn money" at the time of Ms. Hutton's separation from Sally Beauty in November 2001 (and again in late 2003). It is Dr. Durgin's testimony that there were comparable jobs available in the geographic area. Def.'s Br. at 3; Durgin Expert Report. Dr. Durgin reached this conclusion upon reviewing Ms. Hutton's work history and her job duties, reading her deposition from April 17, 2003, compiling statistical information concerning the local job market, and examining the classified ads from four (4) area newspapers for the period December 2001-February 2002 and May 2003-October 2003. Id.; Durgin Dep. p. 20. As a result, Dr. Durgin concluded that, at the time he completed his report (November 18, 2003), Ms. Hutton was underemployed; that is, "she was not . . . earning at her full capacity to earn money." Id.; Durgin Dep. p. 32-33. Dr. Durgin, however, did not extend his analysis to discover any specific position that he was certain that Ms. Hutton would have been hired for had she applied. Pl.'s Opp'n Br. at 2; Durgin Dep. p. 47. In addition, Dr. Durgin acknowledged that a prior termination in an employee's employment record may negatively impact her ability to secure future employment, depending on the reason for the termination and status and income of the job. Id.; Durgin Dep. p. 49.
The Bloomington metropolitan statistical area (MSA) includes eight (8) counties. Def.'s Br.; Durgin Dep. p. 21.
The Mitchell Tribune, The Times-Mail (Bedford), The Herald Times (Bloomington), and The Hoosier Times.
For example, the termination of a retail sales worker for committing a felony would have a greater impact than a non-felonious discharge. In addition, a prior termination would have a greater adverse impact on a high-ranking, high-income job seeker than on a semi-skilled worker making an average income. Durgin Dep. p. 49.
Legal Analysis
Summary Judgment Standard
Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the particular issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmovant must establish more than mere doubt as to the material facts, but must "adduce evidence `set[ting] forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Packman v. Chicago Tribune Co., 267 F.3d 628, 637 (7th Cir. 2001). The mere existence of a factual dispute will not bar summary judgment; the facts in dispute must be outcome-determinative. Id. In considering a motion for summary judgment, a court must review the record and draw all reasonable inferences in the light most favorable to the non-moving party, in this case, Ms. Hutton.Anderson, 477 U.S. at 255; Del Raso v. U.S., 244 F.3d 567, 570 (7th Cir. 2001). However, if Ms. Hutton does not come forward with evidence that would reasonably permit the finder of fact to find in her favor on a material question, then the court must enter summary judgment against her. Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986);Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986)).
Mitigation of Damages Affirmative Defense
A discharged ADEA plaintiff has a duty to exercise reasonable diligence in attempting to mitigate damages by finding comparable work. Ford Motor Co. v. E.E.O.C., 458 U.S. 219, 231 (1982);Smith v. Great American Restaurants, Inc. 969 F.2d 430, 438 (7th Cir. 1992). The defendant, however, has the burden of proving that the plaintiff has failed to discharge its duty. The motion before the Court represents the defendant's contention that it has succeeded in mustering this proof.
The general test of whether a plaintiff has failed to mitigate damages is two-pronged: the defendant must show that (1) the plaintiff failed to exercise reasonable diligence to mitigate her damages; and (2) there was a reasonable likelihood that the plaintiff might have found comparable work by exercising reasonable diligence. Gaddy v. Abex Corp., 884 F.2d 312, 318 (7th Cir. 1989); United States v. City of Chicago, 853 F.2d 572, 578 (7th Cir. 1988); Hutchison v. Amateur Electronic Supply, Inc. 42 F.3d 1037, 1044 (7th Cir. 1994).
The plaintiff's burden to mitigate damages does not require success, but only an honest, good faith effort to locate comparable employment. See E.E.O.C. v. Ilona of Hungary, Inc., 97 F.3d 204, 216 (7th Cir. 1996); Smith, 969 F.2d at 438-439. This does not mean, however, that the plaintiff may spend an insufficient amount of time and effort looking for work. See, Coleman v. Lane, 949 F.Supp. 604, 608 (N.D. Ill. 1996) (discussing Payne v. Security Sav. Loan Ass'n, F.A., 924 F.2d 109, 111 (7th Cir. 1991) which upheld a reduction of plaintiff's back pay award for the two-year period during which his job search efforts consisted of spending merely "two or three days a month" and "[a] few hours a week, maybe a month" looking for employment, despite the fact that his job search was "earnest and extensive" in the first year following termination).
To carry its burden, therefore, Sally Beauty must show that Ms. Hutton did not take advantage of substantially equivalent opportunities that were available to her after she was discharged. Defendant has presented evidence that substantially equivalent opportunities were available to Ms. Hutton and that she did not pursue those opportunities, and that on this point none of the evidence is factually disputed by Plaintiff.
First, Sally Beauty submits a collection of classified ads from local newspapers to support the contention that comparable retail management job openings were available in the geographic region where the plaintiff resides. Specifically, there were advertised openings for video store managers, store team leaders, office manager for a winery, managers for a Hallmark store, merchandising managers and store managers for a clothing store. Def.'s Br. at 3; Classified Advertisements. The proposed geographic area includes Mitchell, where Ms. Hutton lives, Bedford, where she worked for Sally Beauty, and Bloomington, approximately 25 miles from Bedford. Sally Beauty argues that workers who live in small towns such as Mitchell often need to commute to jobs elsewhere in Lawrence County or nearby counties; in fact, one in five workers who lives in Lawrence County works outside the county. Def.'s Br.; Durgin Dep. pp. 28-31. Indeed, Ms. Hutton has previously worked in both Paoli (Orange County), 23 miles from Mitchell, and Borden (Clark County), 37 miles from Mitchell. The classified ads reveal jobs which, according to Defendant's expert, are within Ms. Hutton's capabilities, based on a review of her work history, job duties and present state of health: management and sales, as well as beauty salon work. Def.'s Br., Durgin Expert Report (Docket # 70, Attachment #11). In addition, Dr. Durgin testified that the unemployment rate in the Bloomington metropolitan statistical area was 2.8% compared to almost 5% in the rest of the state. Def.'s Br., Durgin Dep. pp. 28-30. This evidence supports Defendant's contention that substantially equivalent job opportunities were available to Ms. Hutton following her separation from Sally Beauty, and Ms. Hutton has not argued otherwise.
See Def.'s Br., Durgin Dep. pp. 50-52. Dr. Durgin had read Ms. Hutton's deposition and was aware she suffered from asthma as well as an injured shoulder.
Second, the undisputed evidence demonstrates that Ms. Hutton appears not to have taken advantage of those job opportunities. By Ms. Hutton's own admission, she made but a single attempt to find a managerial job at a beauty salon in Bedford. Ms. Hutton did not look for a comparable job either beyond the one contact with JC Penney beauty salon or within the town of Bedford following her termination from Sally Beauty.
Thus, Sally Beauty has established that there were comparable jobs available which Ms. Hutton ignored. Ms. Hutton counters by arguing that her choice of a non-managerial, hourly job represented a successful attempt on her part to secure comparable employment. We acknowledge that there is no rule which compels a court to find failure to mitigate damages from evidence of inactivity in the specific job market from which she was terminated, just as there is no rule that compels a similar finding when a plaintiff starts an alternate career or secures part-time employment. However, had Ms. Hutton sought comparable work (managerial responsibilities) and, finding none available, stayed with her non-managerial bartending job, she would likely have satisfied the obligation of reasonableness in her duty to mitigate. However, Ms. Hutton has introduced no evidence in support of a good faith effort to secure comparable employment. The full-time bartending job was neither comparable in terms of duties and responsibilities nor in terms of earnings; Ms. Hutton earned approximately 20% less than she had as a managerial employee. But that choice was made by Plaintiff herself and was not a circumstance imposed upon her by the unavailability of comparable jobs in that market area. Thus, Defendant has introduced sufficient and undisputed evidence to establish that Plaintiff made no reasonable attempt to mitigate her damages following the termination of her employment.
Conclusion
For the reasons discussed, we find that Plaintiff failed to discharge her duty to mitigate damages and, as a matter of law, Sally Beauty is entitled to summary judgment on Plaintiff's claim for monetary damages. Accordingly, we GRANT Defendant's Motion for Summary Judgment on Damages.
It is so ORDERED.