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April 21, 2003


The opinion of the court was delivered by: Maxine Chesney, United States District Judge


In this action, plaintiff Taufui Piutau alleges he advised his former employer, defendant Federal Express Corporation, that he had been arrested for driving under the influence.*fn1 After this disclosure, defendant suspended plaintiff, initially with pay and then without pay. On July 25, 2002, the Court determined that the suspension without pay violated plaintiffs rights under state law and, accordingly, found in favor of plaintiff on the issue of liability. (See Order Granting in Part and Denying in Part Def.s Mot. for Summ J; Granting Pl.'s Mot for Summ. Adjudication, filed July 25, 2002, at 6-15 ("Summary Adjudication Order").)*fn2

On March 17 and 18, 2003, the Court conducted a trial on the remaining issues, specifically, the issues of economic damages, non-economic damages, punitive damages and declaratory relief. Stephen M. Murphy appeared on behalf of plaintiff. Sandra C. Isom appeared on behalf of defendant. Having considered the evidence presented, the submissions on behalf of the respective parties, and the arguments of counsel, the Court finds and rules as follows.

A. Economic Damages

Plaintiff seeks recovery of lost wages for the period of October 21, 1999 through March 1, 2000. The parties agree, and the Court finds, that the total amount of lost wages, absent mitigation, is $21,176, which figure is based on an hourly rate of $19.61.*fn3 The parties further agree, and the Court finds, that during the subject period, plaintiff earned a total of $4,450 for work performed for two other employers, See's Candies and Infineon Technologies, thus decreasing the maximum amount of recovery for lost wages to $16,726. Defendant argues that this figure should be further reduced on the ground plaintiff failed to mitigate his damages when he did not accept alternative employment offered by defendant during the subject period, specifically, a part-time position as a foot courier and a full-time position as a foot courier.

Under California law, "[t]he general rule is that the measure of recovery by a wrongfully discharged employee is the amount of salary agreed upon for the period of service, less the amount which the employer affirmatively proves the employee has earned or with reasonable effort might have earned from other employment." See Parker v. Twentieth Century-Fox Film Corp., 3 Cal.3d 176, 181 (1970). "However, before projected earnings from other employment opportunities not sought or accepted by the discharged employee can be applied in mitigation, the employer must show that the other employment was comparable, or substantially similar, to that of which the employee has been deprived; the employee's rejection of or failure to seek other available employment of a different or inferior kind may not be resorted to in order to mitigate damages." See id. at 182.

With respect to the part-time position, the Court finds that a part-time position is, by its very nature, "employment of a different or inferior kind" where, as here, the initial employment was full-time. See Currieri v. City of Roseville, 50 Cal.App.3d 499, 507 (1975) (observing plaintiff who had worked full-time had no duty to mitigate by accepting part time work); Priest v. Rotary, 634 F. Supp. 571, 580 (N.D. Cal. 1986) (holding, for purposes of mitigation, part-time employment "not comparable employment" to full-time employment). Consequently, plaintiff was not required to accept the part-time position in order to mitigate his damages.

With respect to the full-time position, the Court finds that defendant offered plaintiff the alternative of working full-time as a foot courier for approximately $1 less per hour than what plaintiff earned as a driving courier. The Court further finds that, as indicated in defendant's internal documentation, defendant's offer was contingent on plaintiff having to remain at the alternative full-time position for one year and waiving back pay. (See Pl.'s Ex. 31.) Plaintiff argues that the full-time foot courier position, under the conditions offered by defendant, was not comparable or substantially similar to his driving courier position.

Under California law, "the deprivation or infringement of an employee's rights held under an original employment contract converts the available `other employment' relied upon by the employer to mitigate damages, into inferior employment which the employee need not seek or accept." Parker, 3 Cal.3d at 184 (holding where defendant terminated employment agreement under which actress had right to approve screenplay and director, defendant's offer of alternative employment agreement under which actress did not have such approval rights "constituted an offer of inferior employment"). Courts in other jurisdictions similarly have held that "a discharged employee need not accept an offer of reemployment where to do so would constitute a disadvantageous renegotiation of his rights and remedies thereunder." Schwartz v. Solo Cup Co., 445 N.E.2d 872, 876 (Ill. App. Ct. 1983) (collecting cases; holding plaintiff not obligated to mitigate damages caused by wrongful termination where defendant's offer of "lesser position" required plaintiff to permanently relocate to another state and to pay relocation expenses).

Here, had plaintiff taken the alternative full-time position, plaintiff would have been required to accept less pay, to remain in that lesser-paying position for one year, and to waive his right to obtain any back pay. The Court finds that such conditions constituted a deprivation or infringement of plaintiffs rights held under his original employment contract, and thus concludes that plaintiff was not obligated to accept the full-time foot courier position in order to mitigate his damages.

Accordingly, plaintiff is entitled to recover $16,726 as compensation for lost wages.

Additionally, plaintiff seeks to recover the sum of $655.51, which amount corresponds to late mortgage payment charges. (See Pl.'s Exs. 9, 10.) According to plaintiffs wife, who testified she managed the family's finances, the late charges were incurred when she could not timely pay the mortgage on the family's home as a result of the loss of income caused by plaintiffs suspension. The Court credits such testimony and, accordingly, finds that plaintiff is entitled to the additional sum of $655.51.

Accordingly, plaintiff is entitled to recover $17,381.55 in ...

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