* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 4 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOSEPH F. WIECZOREK, Plaintiff - Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, a Delaware corporation, Defendant - Appellee. No. 97-1154 (D.C. No. 95-B-1528) (District of Colorado)

ORDER AND JUDGMENT *

Before SEYMOUR , ANDERSON and LUCERO , Circuit Judges.

Mr. Wieczorek appeals from a jury verdict, contendi ng that the district court erred by instructing the jury on the affirmat ive defense of failure to mitigate damages. Alternatively, he argues that the mitigat ion instruction was plainly erroneous. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.-2-

Plaintiff was injured while in the employ of Southe rn Pacific Transportation Company (“Southern Pacific”). He fi led a civil action against Southern Pacific pursuant to the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. §§ 51-60, asking for over $650,000 in damage s. At the conclusion of trial and over plaintiff’s objection, the district court agreed to instruct the jury on the affirmative defense of failure to mitigate damages. The jury returned a verdict in favor of plaintiff, assessing damages at $80,000. The jury also found that plaintiff was 50% contributorily negligent, and the award was reduced by that percentage resulting in a judgment in favor of plai ntiff in the amount of $40,000. We first consider plaintiff’s argument that the dis trict court erred by instructing the jury on the duty to mitigate damage s, contending that the instruction was unsupported by evidence in the reco rd. Southern Pacific responds that the evidence before the jury was sufficient to support the instruction. See Wilson v. Union Pac. R.R. , 56 F.3d 1226, 1232 (10th Cir. 1995) (“[A] party i s entitled to an instruction based on its theory of the case whenever it produces evidence to support it.”) (citing Trejo v. Denver & Rio Grande W. R.R. , 568 F.2d 181, 184 (10th Cir. 1977)). “We review a district court’s decision . . . to give a particular instruction . . . for abuse of discretio n. As for the instructions themselves, we conduct a de novo review to determin e whether, as a whole, they correctly stated the governing law and provided the jury with an ample-3-

understanding of the issues and applicable standard s.” Harrison v. Eddy Potash,
Inc. , 112 F.3d 1437, 1442 (10th Cir. 1997) (citations o mitted). Our review of the record reveals sufficient evidenc e for the jury to conclude that plaintiff failed to mitigate his dama ges. Plaintiff was 38 years old at the time of the accident and the testimony of on e of his treating physicians indicated that he was capable of returning to sedentary work. See Dep. of John R. Maggiore, M.D., at 8, inI Trial Tr., pt. 2. Plaintiff testified that afte r the accident a representative of Southern Pacific discu ssed with him “off the record” a job opportunity, which he did not accept. See I Trial Tr. at 100-01. Although plaintiff contends that “[i]n context, it is clear that [he] did not consider [it] to be a legitimate or viable job offer,” Appellant’s Repl y Br. at 2, this question was properly for the jury to decide. Plaintiff also te stified that he did not take advantage of the vocational counseling offered to h im by Southern Pacific: I talked to — this is after the railroad had contac ted me and set up a meeting with the railroad vocational person, and I went there and took a bunch of tests, and we talked about maybe co mputer drafting or maybe an electronics class or something. . . . I told him I wasn’t — I didn’t have a clue for what I wanted to do for the rest of my life. . . . And I told him that I would get back with him and let him know what I was thinking about. And I never really got back with the guy to finish talking about it. I Trial Tr. at 102-03. This counselor testified th at Southern Pacific was willing to pay for a vocational rehabilitation program, but th at plaintiff declined to enroll in the program because he was unsure what he wanted to do with his career.-4-

Plaintiff stated at trial that he sought counseling from the State of Colorado Department of Rehabilitation. A rehabilitation cou nselor employed by the Department testified by video deposition that his n otes taken during plaintiff’s intake interview stated: “[plaintiff] is not sure t hat the [Division of Vocational Rehabilitation (“DBR”)] will be needed once he gets his settlements. He primarily came to DBR on the advice of his lawyer.” Dep. of Charles L. Lackey at 34-35, inII Trial Tr., pt. 1. The jury was entitled to int erpret from this evidence that plaintiff’s efforts to seek vocationa l counseling and employment were less than genuine. This court has stated in the FELA context: An unemployed plaintiff who is able to look for work does not satisfy his duty to mitigate by waiting passively f or employment to be offered. The opportunity to mitigate is not merelythe opportunity to accept a job, but the opportunity to seek appropriate work when one is able to do so. If that opportunity is shown to have existed, the issue of mitigation should not normally be prevente d from reaching a properly instructed jury. Wilson , 56 F.3d at 1232 (emphasis added). From the evide nce in the record, the jury could properly find that an opportunity to see k appropriate work existed. Because “[t]he question whether the conduct of plai ntiff was reasonable effort in the circumstances was a question of fact for the ju ry under proper instructions,” Trejo , 568 F.2d at 184, the district court did not err i n submitting a mitigation instruction to the jury.-5-

Plaintiff’s next contention — that the instructions were an erroneous statement of the law because they did not inform th e jury that defendant bore the burden of establishing plaintiff’s duty to mitigate damages — also fails to persuade us. Because plaintiff failed to object to the language of the instructions on these grounds, we will not review them unless th ey are “patently plainly erroneous and prejudicial.” Zimmerman v. First Fed. Sav. & Loan Ass’n , 848 F.2d 1047, 1054 (10th Cir. 1988) (quoting Moe v. Av ions Marcel DassaultBreguet Aviation , 727 F.2d 917, 924 (10th Cir. 1984)). The instruc tions, read as a whole, clearly state that failure to mitigate dam ages is an affirmative defense and that defendant has the burden of establishing a ffirmative defenses by a preponderance of the evidence. See II Trial Tr. at 351-53 (Instructions Nos. 1 and 4). They are not “patently plainly erroneous a nd prejudicial,” and we therefore decline to review further the error to wh ich plaintiff now objects. We AFFIRM the judgment of the district court.
ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge