Routhier was immediately uncomfortable, irritated, distrustful, and unpleasant with the plaintiff because of his national origin and age. This was immediately revealed by his statements, attitude, and refusal to deal with the plaintiff on any meaningful basis in his training and evaluations for the first six months of his probationary period. Thereafter, it was manifested in his campaign to discredit plaintiff in the eyes of Crick and Schlunz. By September or October 1984, Routhier had determined that because of plaintiff's national origin and age, he must be terminated. At this point in time, he took an active interest in plaintiff's work and began to personally supervise (or failed to supervise) the plaintiff, he prepared the first unsatisfactory quarterly report and made re-evaluations of the prior audits so as to reflect unfavorably upon the plaintiff. Crick and Schlunz were not participants in the discrimination, since they were in fact, misled by Routhier, and relied upon his oral statements and written evaluations.
Both Crick and Schlunz made superficial reviews relying principally upon Routhier in making their decision to support Routhier's termination of the plaintiff. Neither made a truly independent review or evaluation of the plaintiff's performance. Without Routhier, the plaintiff would have continued to be employed by the Department of the Air Force and would have worked up the line as an auditor-trainee. It was specifically because of Routhier's intentional discrimination based on plaintiff's national origin and age that he was terminated. "America's hallmark has been to judge people by what they do, and not by who they are." Steffan v. Aspin, 8 F.3d 57, , 1993 WL 465530, *14 (D.C. Cir. 1993). There is no question that if the Plaintiff, with his record, had been of European-American national origin between the ages of 25-35, he would not have been terminated at such an early point in his career with the Department of the Air Force. No other auditor-trainee had ever been terminated before the completion of their probationary period in the thirteen years prior to plaintiff's termination. If, within two or three years, the plaintiff had not advanced to a fully qualified auditor, then he may very well have been justly terminated. However, he was denied the opportunity to so qualify. Because Plaintiff was denied the opportunity to improve his performance, the defendant "must bear the cost of its lost opportunity" to determine whether, with further training, plaintiff could have become a fully trained auditor. Cosgrove, No. 92-7197, slip op. at 6908.
Despite Routhier's active campaign from September 1984 to March 1985, to effectuate plaintiff's termination, even in the end, there was still no documentary evidence that plaintiff was unacceptable so as to justify his termination as a probationary auditor-trainee! The court finds that the plaintiff was terminated because of his national origin and age, and for no other legitimate reason. It was not "mere chance" that the only auditor-trainee terminated in thirteen years was the only one of Middle Eastern origin and the only one over age forty. He is entitled to damages.
As an initial matter, the plaintiff is, of course, required to mitigate his damages. "A victim of age discrimination, like a victim of ethnic, sexual or religious discrimination, is under a duty to use reasonable efforts to mitigate his or her damages by seeking alternate employment and by accepting reasonable offers of employment." Pierce v. F.R. Tripler & Co., 955 F.2d 820, 829-30 (2d Cir. 1992); Clarke v. Frank, 960 F.2d 1146, 1152 (2d Cir. 1992). The burden of Proof, in appropriate cases, is on the defendant to prove that the plaintiff has failed to mitigate his or her damages. See Dominic v. Consolidated Edison Co., 822 F.2d 1249, 1258 (2d Cir. 1987). Here, however, plaintiff has successfully shown that he has mitigated his damages. He has done so by actively seeking employment immediately after discharge, accepting unemployment benefits, and being employed in his field for the last seven and one/half years.
After his termination, the plaintiff was out of work for approximately one year and during that time he received $ 4,472.00 in unemployment compensation. In March 1986, he started as a tax auditor with the Alabama State Department of Taxation where he is employed at the present time. His starting salary was approximately $ 20,000, per annum, and it has progressed until today he is earning $ 33,000, per annum. His actual or approximate earnings were as follows:
3/86 to 3/87 $ 13,841.00
3/87 to 3/88 25,292.00
3/88 to 3/89 28,446.00
3/89 to 3/90 29,070.00
3/90 to 3/91 29,911.00
3/91 to 3/92 30,500.00 (app.)
3/92 to 3/93 31,500.00 (app.)
3/93 to 12/93 24,750.00 (app.)
Total $ 213,310.00
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