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MEYER v. UNITED AIR LINES

January 16, 1997

DIANE MEYER, Plaintiff,
v.
UNITED AIR LINES, INC., Defendant.



The opinion of the court was delivered by: BUCKLO

 The plaintiff, Diane Meyer, filed suit against the defendant, United Air Lines ("United"), alleging violations of Title VII and the Equal Pay Act. She also claims that she was retaliated against for participating in an internal investigation of her supervisor related to a sexual harassment charge, and, as a result of this retaliation, she was constructively discharged from her position. United has moved for summary judgment on Ms. Meyer's damages claims relating to back pay on the grounds that she failed to mitigate her damages following her resignation. For the following reasons, the motion is granted.

 Background

 United hired Ms. Meyer in September, 1989 as an attorney in United's legal department. She worked in the arbitration division of that department where she handled arbitration disputes between United and its flight attendants and pilots unions. At the time of her hiring, Ms. Meyer had practiced law for four years with the Cook County State's Attorney's Office, but she had no relevant experience in labor law or arbitration. Ms. Meyer left United on July 9, 1993. At the time of her departure, Ms. Meyer earned approximately $ 60,000 annually.

 Prior to her departure, Ms. Meyer sought alternative employment. In April, 1993 Ms. Meyer applied for a part-time position with the Cook County State's Attorney's office. She was offered this position in May, 1993 with an immediate start date. Ms. Meyer, however, requested and received a start date in mid-July, 1993. She did not seek any other employment opportunities, full-time or part-time.

 Legal Standard of Review

 A court may award summary judgment to the moving party only when there is no genuine issue of material fact and that party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). A genuine issue of material fact exists when a reasonable jury could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In considering the motion, all reasonable inferences must be drawn in favor of the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970).

 Mitigation of Damages

 A Title VII claimant has a statutory duty to use reasonable and diligent efforts to secure suitable employment in order to mitigate damages. 42 U.S.C. ยง 2000e-5(g) (1994); Ford Motor Co. v. EEOC, 458 U.S. 219, 231, 73 L. Ed. 2d 721, 102 S. Ct. 3057 (1982). Although the plaintiff has this duty, the defendant bears the burden of proving the affirmative defense of failure to mitigate. Specifically, the defendant must prove (1) that the plaintiff did not exercise reasonable diligence in seeking comparable employment; and (2) that comparable employment actually was available had the plaintiff exercised reasonable diligence. EEOC v. Gurnee Inn Corp., 914 F.2d 815, 818 (7th Cir. 1990).

 United has established the first prong of its affirmative defense and proven that Ms. Meyer failed to use reasonable diligence in seeking comparable employment. In order to satisfy the mitigation requirement, Ms. Meyer was not obligated to "go into another line of work, accept a demotion or take a demeaning position. . . ." Ford Motor, 458 U.S. at 232. Ms. Meyer, however, did have an obligation to remain actively in the labor force seeking a substantially equivalent position to the one she left at United. See Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1428 (7th Cir. 1986); see also Ford Motor, 458 U.S. at 232 (holding that a Title VII claimant "forfeits his right to backpay if he refuses a job substantially equivalent to the one he was denied"). By immediately accepting the part-time position in the Cook County State's Attorney's office, Ms. Meyer did not meet this obligation.

 Ms. Meyer's present part-time position cannot be considered comparable or substantially equivalent to her prior job at United in any aspect except for the fact that she still practices law. A substantially equivalent position is one which affords "the claimant virtually identical promotional opportunities, compensation, job responsibilities, working conditions, and status." Rasimas v. Michigan Dept. of Mental Health, 714 F.2d 614, 624 (6th Cir. 1983), quoted in Graefenhain v. Pabst Brewing Co., 870 F.2d 1198, 1203 (7th Cir. 1989). The amount of hours worked at a new job is also relevant to the determination of whether it qualifies as substantially equivalent employment. McCann Steel Co. v. NLRB, 570 F.2d 652, 655 (6th Cir. 1978). By working part-time in her current job, Ms. Meyer has cut her salary and hours in half, and, as a result, her prospects for promotion also have dimmed. Therefore, Ms. Meyer's new position is not comparable to her prior position at United. See Certified Midwest, Inc. v. Local Union No. 738, 686 F. Supp. 189, 193 (N.D. Ill. 1988) (holding that "it is clear . . . that two jobs are not comparable when one pays from 2.4 to 2.5 times as much as the other").

 Nevertheless, a Title VII plaintiff is permitted to take an interim job or even a permanent job which might pay less money or have fewer responsibilities than her prior position but only after the plaintiff has made reasonable and diligent efforts to find comparable employment. See Ford Motor, 458 U.S. at 231 n.14, 232 n.16; Tubari Ltd., Inc. v. NLRB, 959 F.2d 451, 456-57 (3rd Cir. 1992). Yet the undisputed facts establish that Ms. Meyer accepted the part-time position without conducting any further search for a full-time position. Defendant's 12(M) Statement, PP 46, 52; Plaintiff's 12(N) Statement, PP 46, 52. To this day, she has not made any attempts to find a full-time position comparable to the one she held at United. Defendant's 12(M) Statement, P 56; Plaintiff's 12(N) Statement, P 56. Under these circumstances, Ms. Meyer cannot be said to have engaged in reasonable and diligent efforts to secure a comparable position. "[A] discriminatee who immediately accepts a one-third reduction in pay without making any effort to secure alternative suitable interim employment has not exercised reasonable diligence." Tubari, 959 F.2d at 459. Ms. Meyer did exactly this except that she reduced her pay by one-half. This action amounts to a willful loss of earnings, thereby reducing the amount of any award that Ms. Meyer might receive. See Phelps Dodge Corp., v. NLRB, 313 U.S. 177, 198, 85 L. Ed. 1271, 61 S. Ct. 845 (1941); see also NLRB v. Madison Courier Inc., 153 U.S. App. D.C. 232, 472 F.2d 1307, 1321 (D.C. Cir. 1972) (holding that "if the discriminatee accepts significantly lower-paying work too soon after the discrimination in question, he may be subject to a reduction in back pay on the ground that he willfully incurred a loss by accepting an 'unsuitably' low paying position"). *fn1"

 The Seventh Circuit and courts in this district have held previously that part-time work satisfies the mitigation requirement. Donnelly v. Yellow Freight Sys., 874 F.2d 402, 411 (7th Cir. 1989); EEOC v. Northwestern Mem'l Hosp., 858 F. Supp. 759, 768 (N.D. Ill. 1994). In each of these instances, however, the courts have noted that the plaintiffs have continued to search for full-time, comparable employment. ...


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