1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-31-1995

Booker v Taylor Milk Company

Precedential or Non-Precedential:

Docket 94-3503

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Recommended Citation

"Booker v Taylor Milk Company" (1995). 1995 Decisions. Paper 240.

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1 

 UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 

Nos. 94-3503 & 94-3525 

 

LEATCH BOOKER, III, 

v. 

TAYLOR MILK COMPANY, INC.; RUSSELL MORGAN; 

TIMOTHY M. GARCIA; DIANE PETCASH; 

JOSEPH S. TAYLOR; PHIL F. RICHARDSON; 

DICK RICHARDSON; RICHARDSON & ASSOCIATES 

 Leatch Booker, III, 

 Appellant in No. 94-3503 and 

 Cross-appellee in No. 94-3525 

 Taylor Milk Company, Inc., 

 Appellant in No. 94-3525 and 

 Cross-appellee in No. 94-3503 

 

 

Appeal from the United States District Court 

for the Western District of Pennsylvania 

(D.C. Civ No. 91-cv-02021) 

 

Argued June 13, 1995 

 

Before: STAPLETON, MCKEE and SEITZ, Circuit Judges. 

Filed: August 31, 1995 

 

Vaughn A. Booker, Esquire (Argued) 

28 Douglass Road 

Suite A-1 

Woodbrook Circle 

Lansdale, Pennsylvania 19446 
2 

 Attorney for Appellant
3 

John A. McCreary, Jr., Esquire (Argued) 

Henry L. Clement, III, Esquire 

Volk, Robertson & Hellerstedt 

Three Gateway Center 

15th Floor East 

Pittsburgh, Pennsylvania 15222 

 Attorneys for Appellee

 

OPINION OF THE COURT

 

SEITZ, Circuit Judge.

 Leatch Booker, III ("Plaintiff") was unlawfully 

terminated by Taylor Milk Company, Inc. ("Defendant"). As a 

result of this discharge, Plaintiff was awarded, inter alia, back 

pay; however, his request for prejudgment interest on the award 

was denied. First, both Plaintiff, on appeal, and Defendant, in 

its cross-appeal, challenge the district court's order awarding 

back pay. Second, Plaintiff appeals from the order of the 

district court denying his request for prejudgment interest. The 

finding of unlawful termination is not challenged on appeal. The 

district court had jurisdiction under 28 U.S.C. § 1331, and we 

have jurisdiction pursuant to 28 U.S.C. § 1291. 

I. FACTS

 Plaintiff, an African American, was employed as a 

probationary laborer and dock handler by Defendant. Prior to the 

end of his period of probation, Plaintiff was terminated. 

Thereafter, he instituted this action against Defendant, and a 

number of other individuals (not involved in this appeal), 

alleging that his discharge was racially motivated. After a 

bench trial, the district court entered judgment for Plaintiff 
4 

finding that his discharge was racially motivated and violative 

of Title VII of the Civil Rights Act of 1964, see 42 U.S.C. 

§§ 2000e to 2000e-17. 

 In its judgment, the district court concluded that 

Plaintiff was entitled to, inter alia, back pay. Although it 

awarded back pay, it reduced that sum by the amount it found 

Plaintiff could reasonably have earned elsewhere during the 

layoff period.1 Thereafter, Plaintiff made a motion for 

prejudgment interest on this back pay award, which was denied by 

the district court. 

 Plaintiff filed a timely appeal and Defendant a timely 

cross-appeal from the district court's orders. 

II. DISCUSSION

 Plaintiff argues on appeal that the district court 

erred in finding that he essentially failed to mitigate damages 

after his discharge and in calculating the amount of the back pay 

award. In addition, Plaintiff argues that the district court 

abused its discretion in denying his motion for prejudgment 

interest. In its cross-appeal, Defendant contends that because 

the court concluded that Plaintiff failed to fully mitigate 

damages as required by the statute, he is not entitled to any

back pay. We turn first to the district court's order awarding 

Plaintiff certain back pay. 

A. The Back Pay Award

 

1In addition, the district court subtracted "interim earnings," 

which Plaintiff had earned in the various "odd jobs" he held over 

a four-year period between the wrongful discharge and his 

reinstatement with Defendant. 
5 

 If a district court finds that an employer has engaged 

in an unlawful employment practice, Title VII authorizes, inter

alia, a back pay award. See 42 U.S.C. § 2000e-5(g)(1); see also

Loeffler v. Frank, 486 U.S. 549, 558 (1988). As explained 

by the Loeffler court, the back pay award authorized by Title VII 

"is a manifestation of Congress' intent to make `persons whole 

for injuries suffered through past discrimination.'" Id. (quoting 

Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975)); see

Squires v. Bonser, 54 F.3d 168, 172 (3d Cir. 1995). Despite a 

presumption in favor of a back pay award, see Albemarle Paper 

Co., 422 U.S. at 421, successful Title VII claimants have a 

statutory duty to mitigate damages. See Robinson v. SEPTA, Red 

Arrow, 982 F.2d 892, 897 (3d Cir. 1993). 

1. Plaintiff's Duty to Mitigate Damages

 A successful claimant's duty to mitigate damages is 

found in Title VII: "Interim earnings or amounts earnable with 

reasonable diligence by the person or persons discriminated 

against shall operate to reduce the back pay otherwise 

allowable." 42 U.S.C. § 2000e-5(g)(1); see Ellis v. Ringgold Sch. 

Dist., 832 F.2d 27, 29 (3d Cir. 1987), cert. denied, 494 U.S. 

1005 (1990). Although the statutory duty to mitigate damages is 

placed on a Title VII plaintiff, the employer has the burden of 

proving a failure to mitigate. See Robinson, 982 F.2d at 897; 

Anastasio v. Schering Corp., 838 F.2d 701, 707-08 (3d Cir. 1988). 

To meet its burden, an employer must demonstrate that 

1) substantially equivalent work was available, and 2) the Title 
6 

VII claimant did not exercise reasonable diligence to obtain the 

employment. See id. at 708. 

 Whether or not a claimant has met his duty to mitigate 

damages is a determination of fact, which is subject to the 

clearly erroneous standard of review. See Robinson, 982 F.2d at 

897; Ellis, 832 F.2d at 29. In this case, the district court 

found that Defendant had established Plaintiff's failure to 

mitigate damages by a preponderance of the evidence and reduced 

the back pay award by the amount it found Plaintiff could 

reasonably have earned during the relevant period. 

 In support of its finding, the district court stated 

that "Defendant's Exhibit 14 and other evidence establishes [sic] 

that minimum wage jobs were available in the relevant job market 

for which Plaintiff was qualified. Plaintiff did not apply and 

would have been hired if he did." Appendix at 91a. Defendant's 

Exhibit 14 covers thirty-three months of the Beaver County Times' 

("Times") Sunday help-wanted section following Plaintiff's 

discharge. The court did not specifically indicate what "other 

evidence" supported its conclusion. Although the record is 

somewhat sparse, it is clear that the district court found from 

the record that 1) Plaintiff was not reasonably diligent in an 

effort to secure employment, and 2) there were substantially 

equivalent positions available. We address these findings. 

a) Reasonable Diligence

 The reasonableness of a Title VII claimant's diligence 

should be evaluated in light of the individual characteristics of 

the claimant and the job market. See Tubari Ltd., Inc. v. NLRB, 
7 

959 F.2d 451, 454 (3d Cir. 1992). Generally, a plaintiff may 

satisfy the "reasonable diligence" requirement by demonstrating a 

continuing commitment to be a member of the work force and by 

remaining ready, willing, and available to accept employment. See

Hutchison v. Amateur Elec. Supply, Inc., 42 F.3d 1037, 1044 (7th 

Cir. 1994); Ford v. Nicks, 866 F.2d 865, 873 (6th Cir. 1989). 

 Plaintiff testified that he read the help-wanted ads in 

the Times every Sunday and "constantly and continuously searched 

for employment." Appendix at 23a-2 to 23a-3, 25a. In addition, 

following his discharge, Plaintiff did earn approximately $2,000 

a year doing "odd jobs." Id. at 23a-1 ("handyman, painting, 

putting up fences, whatever"). Plaintiff also pointed out that 

he remained active with the Beaver Falls Job Service ("Job 

Service"), a local employment agency. However, Plaintiff 

testified that in the three and one-half years following his 

discharge, he had failed to submit any employment applications in 

response to the Times ads and had only one job interview. See id.

at 23a-2, 27a-28a. Plaintiff has attempted, both during trial 

and on appeal, to explain his efforts. 

 First, Plaintiff stated that most companies will not 

accept job applications unless they are sent through the Job 

Service. However, there is no evidence in the record to support 

Plaintiff's statement. Furthermore, Defendant produced a number 

of help-wanted ads, which seem to be soliciting applications 

directly without reference to the Job Service. 

 In addition, Plaintiff argues that "[a]n examination of 

the grouping of advertisements [in Exhibit 14] reveals that the 
8 

vast majority of the listings are those of employment agencies 

and temporary agencies." Plaintiff's Br. at 10. Because a number 

of agencies may list the same job and some list jobs so as to 

establish a file of available personnel, he maintains, merely 

counting the listings may serve to count the same job more than 

once. Although some of the listings are from agencies, Plaintiff 

did not point to any ads which posted the same position or which 

listed a position that was, in actuality, not available. Further, 

Plaintiff did not support his statements concerning the temporary 

agencies' policies. In fact, Plaintiff testified that in the 

past, he obtained employment through a temporary agency. 

 Although a plaintiff's efforts need not be successful, 

he must exercise good faith in attempting to secure a position. 

See Reilly v. Cisneros, 835 F. Supp. 96, 99-100 (W.D.N.Y. 1993). 

Here, it appears that Plaintiff did little more than register 

with the Job Service and look through the help-wanted ads. See

EEOC v. Service News Co., 898 F.2d 958, 963 (4th Cir. 1990) 

("Looking through want ads for an unskilled position, without 

more, is insufficient to show mitigation, and the back pay award 

should accordingly be reduced."); Truskoski v. ESPN, Inc., 823 

F. Supp. 1007, 1015 (D. Conn. 1993) ("A ritualistic compliance 

with the unemployment administrator's work search requirement 

does not necessarily constitute a reasonably diligent search for 

suitable employment."). Under the circumstances, Plaintiff's 

conduct following the unlawful discharge does not appear to 

demonstrate his continuing commitment to be a member of the work 

force. Cf. Odima v. Westin Tucson Hotel, 53 F.3d 1484, 1497 (9th 
9 

Cir. 1995); Sellers v. Delgado College, 902 F.2d 1189, 1195 (5th 

Cir. 1990); Gallo v. John Powell Chevrolet, Inc., 779 F. Supp. 

804, 814 (M.D. Pa. 1991). Thus, the district court's conclusion 

that Plaintiff failed to exercise reasonable diligence does not 

appear to be clearly erroneous. 

 However, Plaintiff maintains that the Times help-wanted 

listings include postings for laborers, assembly workers, and 

factory workers, which are not "substantially equivalent" to his 

former position. He argues that because they are not 

"substantially equivalent" he was under no duty to apply for 

these positions, and therefore, they should not be considered 

sufficient proof of his failure to mitigate damages. We address 

that argument. 

b) Substantially Equivalent Employment

 The duty of a successful Title VII claimant to mitigate 

damages is not met by using reasonable diligence to obtain any

employment. Rather, the claimant must use reasonable diligence 

to obtain substantially equivalent employment. See Ford Motor Co. 

v. EEOC, 458 U.S. 219, 231-32 (1982); Anastasio, 838 F.2d at 708. 

"Substantially equivalent employment is that employment which 

affords virtually identical promotional opportunities, 

compensation, job responsibilities, and status as the position 

from which the Title VII claimant has been discriminatorily 

terminated." Sellers, 902 F.2d at 1193; see Mitchell v. Humana 

Hospital-Shoals, 942 F.2d 1581, 1583 n.2 (11th Cir. 1991); Ford, 

866 F.2d at 873. 
10 

 The record demonstrates that Defendant employed 

Plaintiff as a "laborer" and "dock handler." In those positions, 

he was essentially an unskilled worker who loaded and unloaded 

trucks and coolers. Defendant's Exhibit 14 includes numerous 

postings for laborers, general laborers, light labor positions, 

and movers. Although most of the postings do not include 

information about specific job responsibilities, benefits, and 

promotional opportunities, but see, e.g., Appendix at 36a, 43a, 

65a, it is clear that on the whole, the positions would not 

require Plaintiff to "go into another line of work, accept a 

demotion, or take a demeaning position." Ford Motor Co., 458 U.S. 

at 231. But see Tubari Ltd., Inc., 959 F.2d at 458-59 (stating 

that it is reasonable for an unskilled worker to have accepted a 

wide range of work); id. at 456-57 (explaining that as time wears 

on, plaintiff may be required to lower his sights). Furthermore, 

to the extent it is indicated, the compensation for the positions 

is substantially similar to Plaintiff's previous pay. Cf. Ellis, 

832 F.2d at 30. 

 The listings in Exhibit 14 appear to be substantially 

similar to Plaintiff's previous positions with Defendant. 

Therefore, the district court did not err in considering the 

exhibit as evidence of Plaintiff's failure to mitigate damages. 

 We are bound to accept the findings of the district 

court unless we are left with a definite and firm conviction that 

a mistake has been committed. See In re Cohn, 54 F.3d 1108, 1113 

(3d Cir. 1995). After reviewing the record, we conclude that the 

district court's finding that Defendant had proven Plaintiff's 
11 

failure to mitigate damages by a preponderance of the evidence is 

not clearly erroneous. 

 In its cross-appeal, Defendant argues that because 

Plaintiff failed to mitigate damages, he is not entitled to any

back pay. We turn now to that issue. 

2. Defendant's Cross-appeal

 Defendant argues that because Plaintiff failed to 

mitigate damages to some extent, he wholly forfeits the right to 

back pay under Title VII. The district court rejected 

Defendant's "no mitigation-no backpay" argument. Because this 

issue involves the interpretation of section 2000e-5, our review 

is plenary. See Johnson & Johnson-Merck v. Rhone-Poulenc Rorer, 

19 F.3d 125, 127 (3d Cir. 1994). 

 The plain language of section 2000e-5 shows that 

amounts that could have been earned with reasonable diligence 

should be used to reduce or decrease a back pay award, not to 

wholly cut off the right to any back pay. See 42 U.S.C. § 2000e5(g)(1); see also Tubari Ltd., Inc., 959 F.2d at 453-54; 

Anastasio, 838 F.2d at 708-09; 2 DAN B. DOBBS, LAW OF REMEDIES

§ 6.10(4), at 221-22 (2d ed. 1993). Furthermore, Defendant's 

"no-mitigation-no back pay" argument is inconsistent with the 

"make whole" purpose underlying Title VII. 

 As explained supra, back pay is designed to restore a 

victim of discrimination to the economic position he would have 

enjoyed absent the unlawful discrimination. The Supreme Court 

has instructed that "given a finding of unlawful discrimination, 

backpay should be denied only for reasons which, if applied 
12 

generally, would not frustrate the central statutory purposes of 

[Title VII]." See Albemarle Paper Co., 422 U.S. at 421. Here, 

the district court found that even had Plaintiff successfully 

mitigated his damages, he would still not have been made "whole" 

absent the award of some back pay. Based on the evidence before 

it, the district court concluded that the amount Plaintiff could 

have earned in a substantially equivalent position would have 

been less than what he would have earned in Defendant's employ. 

Thus, a denial of all back pay under the circumstances would 

frustrate the make-whole purpose underlying Title VII. 

 Defendant's reliance on the Supreme Court's decision in 

Ford Motor Co. is misplaced. In that case, the Court was 

addressing the following issue: "[W]hether an employer charged 

with discrimination in hiring can toll the continuing accrual of 

backpay liability under . . . Title VII simply by unconditionally 

offering the claimant the job previously denied, or whether the 

employer also must offer seniority retroactive to the date of the 

alleged discrimination." See Ford Motor Co., 458 U.S. at 220 

(footnote omitted). Under that situation, a plaintiff can 

entirely, or nearly, mitigate any loss by accepting the job once 

denied, and, further, that rule satisfies Title VII's second 

goal─to end unlawful discrimination. In the present case, there 

was no "Ford offer," and, as the district court found, even with 

reasonable diligence, Plaintiff could not have wholly mitigated 

damages. This fact distinguishes his case from others where 

plaintiffs failed to seek jobs that would have compensated them 

completely for their losses and elected to remain unemployed. See
13 

Hopkins v. Price Waterhouse, 920 F.2d 967, 981-82 (D.C. Cir. 

1990); Cowan v. Prudential Ins. Co. of America, 852 F.2d 688, 690 

(2d Cir. 1988).2

 We conclude that the district court was correct as a 

matter of law in rejecting Defendant's "no mitigation-no backpay" 

argument and in awarding Plaintiff back pay where it was 

necessary to make him whole. Although Plaintiff was granted back 

pay, he argues that the district court abused its discretion in 

calculating the amount of the award. 

3. Calculation of Back Pay

 As stated, the district court reduced Plaintiff's back 

pay award by the amount he could have earned with reasonable 

diligence. In calculating this amount, the district court turned 

to Defendant's Exhibit 14 -- the Times help-wanted ads. The 

district court found that substantially equivalent positions were 

 

2Defendant's reliance on Phelps Dodge Corp. v. NLRB, 313 U.S. 177 

(1941) and its progeny is also misplaced. In Phelps the Court 

stated, "Since only actual losses should be made good, it seems 

fair that deductions should be made not only for actual earnings 

by the worker but also for losses which he willfully incurred." 

Id. at 198 (emphasis added). Reading on, we think that by 

"losses willfully incurred," the Court was referring to "wages 

that might have been earned." See id. Therefore, Phelps could 

fairly be read as holding that a deduction from back pay awards 

should be made for those earnings which could have been earned 

with reasonable diligence. 

 In addition, we are unpersuaded by Defendant's citation 

to our decision in Carden v. Westinghouse Elec. Corp., 850 F.2d 

996 (3d Cir. 1988). First, the Carden court cites Ford Motor Co.

in support of its holding. As we have explained in the text, 

Ford Motor Co. does not support Defendant's "no mitigation-no 

backpay" argument. Second, as we read Carden, it seems to 

support the position that a plaintiff's failure to mitigate 

damages, as with a plaintiff who has "interim earnings," results 

in a reduction in the back pay award. See id. at 1006. 
14 

available and paid between $5.00 and $12.00 per hour. It set 

$8.50 per hour as an average and used it to calculate the set 

off. In addition, the court included overtime hours in its 

calculation. We review the district court's back pay calculation 

for an abuse of discretion. See Shore v. Federal Express Corp., 

42 F.3d 373, 377-78 (6th Cir. 1994); Robinson, 982 F.2d at 898. 

 Plaintiff argues that the district court abused its 

discretion in computing his back pay award. He maintains that 

the back pay order is contrary to its Findings of Fact and 

Conclusions of Law. In its findings, the court stated, 

"Defendant's Exhibit 14 and other evidence establishes that 

minimum wage jobs were available . . . ." Appendix at 91A. 

(emphasis added). Plaintiff contends that the court was bound to 

use the minimum wage, and not the higher wage actually used, in 

reducing his back pay award. 

 The evidence indicates that a number of substantially 

similar positions were available, and those positions paid more 

than minimum wage. Although the district court stated that 

"minimum wage" positions were available, the record supports its 

decision to use a higher wage. We conclude that the district 

court did not abuse its discretion in calculating Plaintiff's 

back pay and the set off. 

 Finally, Plaintiff argues that the district court erred 

in not awarding prejudgment interest on this award. We turn now 

to that issue. 

B. Prejudgment Interest
15 

 The determination of whether to award prejudgment 

interest in a Title VII case is committed to the sound discretion 

of the district court. See Robinson v. SEPTA, Red Arrow, 982 F.2d 

892, 897 (3d Cir. 1993). Generally, a court of appeals will not 

overturn the district court's determination of the 

appropriateness of a prejudgment interest award absent an abuse 

of discretion. See Gelof v. Papineau, 829 F.2d 452, 456 (3d Cir. 

1987); see also Hadley v. VAM P T S, 44 F.3d 372, 376 (5th Cir. 

1995). The district court is deemed to have abused its 

discretion only when the reviewing court is firmly convinced that 

a mistake has been made. See Shore v. Federal Express Corp., 42 

F.3d 373, 380 (6th Cir. 1994). 

 Here, the district court denied Plaintiff's motion for 

prejudgment interest. In its order the district court recited in 

relevant part: 

 IT IS ORDERED that the motion be and hereby is 

denied for the following reasons: 

 . . . . 

 2. Interest on the back-pay and damage 

calculations is not appropriate in this case due to the 

conduct of plaintiff following [Defendant's] illegal 

employment decision . . . ; 

 3. The conduct of plaintiff contributed to an 

inflated claim for back-pay and therefore the equities 

do not weigh in favor of awarding pre-judgment interest 

on the damage award; 

 4. Plaintiff did not suffer from the loss of the 

use of funds during the relevant period; and 

 5. The award of back-pay and the damage 

calculations are fair, reasonable and appropriate under 

the circumstances, without more. 

Plaintiff's Br. at 28-29. Although the district court is not 

specific, the parties agree that the "conduct" referred to by the 
16 

district court is Plaintiff's failure to mitigate damages. See

id. at 19; Defendant's Br. at 15. 

 Title VII authorizes prejudgment interest as part of 

the back pay remedy in actions against private employers. See

Loeffler v. Frank, 486 U.S. 549, 557 (1988). As with the back 

pay award, prejudgment interest helps to make victims of 

discrimination whole. See Green v. USX Corp., 843 F.2d 1511, 1530 

(3d Cir. 1988). The award of prejudgment interest is 

compensatory in nature; it serves to compensate a plaintiff for 

the loss of the use of money that the plaintiff otherwise would 

have earned had he not been unjustly discharged. See Chandler v. 

Bombardier Capital, Inc., 44 F.3d 80, 83 (2d Cir. 1994); Berndt 

v. Kaiser Aluminum & Chemical Sales, Inc., 789 F.2d 253, 259 (3d 

Cir. 1986). 

 This court has stated, "To fulfill this [make-whole] 

purpose, prejudgment interest should be `given in response to 

considerations of fairness [and] denied when its exaction would 

be inequitable.'" Green, 843 F.2d at 1531 n.16 (quoting Board of 

Comm'rs of Jackson County v. United States, 308 U.S. 343, 352 

(1939)) (second alteration in original). This language has been 

interpreted as supporting a strong presumption in favor of 

awarding prejudgment interest, except where the award would 

result in "unusual inequities." See id.; Brock v. Richardson, 812 

F.2d 121, 127 (3d Cir. 1987); see also Barbour v. Merrill, 48 

F.3d 1270, 1279 (D.C. Cir. 1995). Accordingly, a district court 

may exercise its discretion to depart from this presumption only 
17 

when it provides a justification that reasonably supports the 

departure. 

 In the present case, the district court found that the 

award of back pay alone wholly compensated Plaintiff, and that, 

because Plaintiff's conduct contributed to an inflated back pay 

claim, the equities weighed against prejudgment interest. 

Furthermore, it concluded that Plaintiff did not suffer the loss 

of the use of funds following the unlawful discharge. 

 We agree with those courts that have held that a 

plaintiff's failure to mitigate damages, alone, is insufficient 

to overcome the presumption in favor of a prejudgment interest 

award. See, e.g., Hutchison v. Amateur Elec. Supply, Inc., 42 

F.3d 1037, 1047-48 (7th Cir. 1994); Donnelly v. Yellow Freight 

Sys., Inc., 874 F.2d 402, 411 (7th Cir. 1989). First, 

Plaintiff's reduced back pay award reflects his failure to 

mitigate damages. Second, even had Plaintiff met his duty to 

mitigate losses, he would not be made whole absent an award of 

some back pay. Because Plaintiff was entitled to some back pay 

as a result of his unlawful termination, under the present 

circumstances he is entitled to prejudgment interest for the loss 

of the use of the amount included in the back pay award. 

 We find, therefore, that the district court's 

conclusion was not consistent with a sound exercise of 

discretion. 

III. CONCLUSION

 For the foregoing reasons, we will affirm the August 8, 

1994 order of the district court awarding Plaintiff certain back 
18 

pay. We will reverse the August 22, 1994 order of the district 

court denying Plaintiff's request for prejudgment interest on the 

back pay award and direct the entry of an appropriate amount.