Employment Law Daily Mitigation-of-damages defense did not require employer showing that suitable jobs available
Wednesday, March 2, 2016

Mitigation-of-damages defense did not require employer showing that suitable jobs available

By Dave Strausfeld, J.D. If an employee did not conduct a good-faith job search, she failed to mitigate damages from her allegedly discriminatory firing even without any showing that suitable alternative employment was available, held a federal district court in the District of Columbia, criticizing decisions from the same district in 1998 and 2000 as being inconsistent with a precedent set by the D.C. Circuit in 1972. Ultimately, whether she had conducted her job search in good faith could not be decided on summary judgment (Conn v. American National Red Cross, February 25, 2016, Cooper, C.). The employee worked for the American Red Cross as a director of an audit department, supervising between eight and 14 auditors. She was fired for allegedly undermining the leadership of her supervisor and for several other purported transgressions. Believing she was actually fired because of her age and disability—she was 59 years old and suffered from depression, anxiety, and insomnia at the time—she filed this suit. ADEA and ADA claims survive. Her supervisor had allegedly commented that it would “slow us down” if the employee were reassigned her former tasks upon her return from medical leave. This comment “may well have been innocuous,” the court noted. Then again, it also could reflect an “inaccurate and stigmatizing stereotype” that her age or mental impairment would prevent her from performing her job. For these and other reasons, these claims would have to be decided by a factfinder, the court held. Mitigation of damages. With respect to the mitigation-of-damages question, the employee insisted that the Red Cross must prove not only that she failed to conduct a good-faith search, but also that suitable employment existed in the form of jobs similar to that from which she was terminated. She cited two opinions from the same district, Griffin v. Washington Convention Center, a 2000 case, and Borgo v. Goldin, a 1998 case. But those cases “cannot be squared” with a 1972 decision from the D.C. Circuit, the court declared. In that case, NLRB v. Madison Courier, Inc., the appeals court held that where a plaintiff has failed to diligently exercise good-faith efforts to find a new job, “a scarcity of work and the possibility that none would have been found even with the use of diligence [are] irrelevant.” This standard “conforms to the prevailing view among the circuits,” the court declared. Accordingly, if the Red Cross could establish that the employee failed to conduct a good-faith job search—which could not be decided on summary judgment here—it did not need to also present evidence on the availability of suitable alternative employment in order to prevail on its failure-to-mitigate-damages defense. Extraterritorial application of District of Columbia Human Rights Act. Arguing that the District of Columbia Human Rights Act (DCHRA) statute did not apply here, the Red Cross underscored that the employee did not work at the organization’s Washington, D.C. headquarters and that her supervisor terminated her from Minnesota. She countered that she received a termination letter from Red Cross headquarters in the nation’s capital but to no avail. Looking to D.C. law to resolve the matter, the court quoted the District of Columbia’s highest court in Monteilh v. AFSCME, which held it is not enough to establish subject matter jurisdiction under the DCHRA “simply to show that the company is headquartered here or has offices here.” Rather, the decision must be made and/or its effects must be felt in the District of Columbia. Here, it was not shown that any effects of the alleged discrimination were felt in the District of Columbia, and the supervisor made the termination decision while in Minnesota, so the court dismissed the employee’s DCHRA claim.

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