Quitting post-discrimination job because of lengthy commute may still get you back pay damages

A Title VII plaintiff who sues for wrongful discharge has a duty to mitigate damages. That means he has to make reasonable efforts to find comparable work in order to qualify for back pay from the employer that discriminated against him. The policy reason for this is simple: you cannot just sit around and wait to win your lawsuit.

The case Bergerson v. New York State Office of Mental Health, a summary order decided on May 9. The jury found that the Office of Mental Health discriminated against Bergerson. The district court denied her back pay, reasoning that, while plaintiff found a job after leaving OMH, she quit that job for personal reasons. Quitting that job was unreasonable and thus deprived her of any back pay from OMH. The Court of Appeals (Walker, Chin and Restaini [D.J.]) disagrees.

After plaintiff was wrongfully discharged from OMH, she found another position with the St. Lawrence Psychiatric Center (SLPC). But she later resigned that position because the daily commute was too burdensome. The Court of Appeals says that "it took Bergerson two and a half to three hours to travel to SLPC from her home in Rome, New York. Such an onerous commute undoubtedly constitutes unreasonable working conditions, and Bergerson was not obligated to mitigate damages by pursuing or continuing employment located such an unreasonable distance from her home." Quitting the SLPC job did not, by itself, constitute a failure to mitigate damages. The Second Circuit cites a district court case and cases from around the country in reaching this holding. So this is probably the first time this Court has said this.

However, plaintiff still did not mitigate damages, for other reasons. After she left SLPC, plaintiff did not make reasonable efforts to find comparable employment. She took on lesser positions with a bus company and a part-time job with a School for the Deaf. So while this decision provides guidance on when a Title VII plaintiff may quit a subsequent job and still seek back pay, for other reasons, Bergerson still gets nothing in the way of back pay.