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DAILEY v. SOCIETE GENERALE

February 14, 1996

ANNE DAILEY, Plaintiff, against SOCIETE GENERALE, Defendant.


The opinion of the court was delivered by: KOELTL

 JOHN G. KOELTL, District Judge:

 There are three motions before the Court: (1) the defendant's motion for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(b) setting aside the plaintiff's back pay damage award and for a new trial pursuant to Fed. R. Civ. P. 59(a) on the plaintiff's retaliation claim or, in the alternative, for a new trial solely on the plaintiff's back pay and emotional distress damage awards; (2) the defendant's motion for attorneys' fees and costs; and (3) the plaintiff's application for attorneys' fees and costs.

 These motions were made after entry of judgment following a five-day jury trial in an action by the plaintiff Anne Dailey against her former employer Societe Generale ("the Bank"). See Dailey v. Societe Generale, 889 F. Supp. 108 (S.D.N.Y. 1995). The plaintiff alleged that the Bank had violated Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e et seq. ("Title VII"), the New York State Human Rights Law, Executive Law § 296 et seq. ("Human Rights Law"), and the Administrative Code of the City of New York § 8-101 et seq. ("Administrative Code") by (1) discriminating against her on the basis of her gender by paying her less than male employees in substantially similar jobs and (2) willfully retaliating against her after she complained to people at the Bank. Dailey sought compensatory and punitive damages as well as declaratory and injunctive relief. The jury rendered a special verdict in favor of the plaintiff on her retaliation claim but in favor of the Bank on her discrimination claim. The jury awarded the plaintiff $ 300,000 in back pay compensation, which covered the full period between the time the plaintiff left her employment at the Bank and the trial, and $ 100,000 in emotional distress damages. The parties have entered into a stipulation reducing the plaintiff's damages for emotional distress to $ 17,500 and withdrawing the defendant's motion for new trial with respect to the plaintiff's emotional distress damages.

 For the reasons explained below, the defendant's motions for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(b), for a new trial pursuant to Fed. R. Civ. P. 59(a), and for attorneys' fees and costs are denied, and the plaintiff's application for attorneys' fees and costs is granted in part.

 I.

 The defendant contends that it is entitled to judgment as a matter of law pursuant to Fed. R. Civ. P. 50(b) setting aside the plaintiff's back pay award because the plaintiff allegedly failed to mitigate her damages. The defendant argues that the plaintiff is not entitled to any recovery of back pay for the period after August 1, 1993, which is when she abandoned her job search and enrolled in school as a full-time student. In addition, the defendant argues that it is entitled to a new trial on the plaintiff's retaliation claim in its entirety, or, in the alternative, a new trial on the issue of the plaintiff's back pay damages.

 A.

 A jury verdict is not to be set aside and judgment entered as a matter of law pursuant to Fed. R. Civ. P. 50(b) unless "'the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable [jurors] could have reached.'" Samuels v. Air Transport Local 504, 992 F.2d 12, 14 (2d Cir. 1993) (quoting Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970)). In considering a Rule 50(b) motion, a trial court "must view the evidence in a light most favorable to the nonmovant and grant that party every reasonable inference that the jury might have drawn in its favor." Samuels, 992 F.2d at 16. Judgment as a matter of law following a jury verdict is to be entered only when "there is 'such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or [where there is] such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded [persons] could not arrive at a verdict against [the movant].'" Logan v. Bennington College Corp., 72 F.3d 1017, 1995 WL 740236, at *4 (2d Cir. Dec. 14, 1995) (quoting Concerned Area Residents for the Env't v. Southview Farm, 34 F.3d 114, 117 (2d Cir. 1994), cert. denied, 131 L. Ed. 2d 721, 115 S. Ct. 1793 (1995) (internal quotations and citations omitted)).

 Dailey, as a prevailing Title VII plaintiff, was required to mitigate her damages by being reasonably diligent in finding other suitable employment substantially equivalent to her job at the Bank. See Ford Motor Co. v. EEOC, 458 U.S. 219, 231-32, 73 L. Ed. 2d 721, 102 S. Ct. 3057 (1982); Clarke v. Frank, 960 F.2d 1146, 1152 (2d Cir. 1992). The defendant bears the burden of proving that the plaintiff has not fulfilled her duty to mitigate. Clarke, 960 F.2d at 1152; EEOC v. Kallir, Philips, Ross, Inc., 420 F. Supp. 919, 925 (S.D.N.Y.), aff'd, 559 F.2d 1203 (2d Cir. 1976), cert. denied, 434 U.S. 920, 54 L. Ed. 2d 277, 98 S. Ct. 395 (1977). As Judge Weinfeld explained in a decision the Second Circuit Court of Appeals affirmed, the defendant's burden is very high.

 
[The] defendant's burden of proving a lack of diligence is not satisfied merely by a showing that there were further actions that plaintiff could have taken in pursuit of employment. Rather, defendant must show that the course of conduct plaintiff actually followed was so deficient so as to constitute an unreasonable failure to seek employment. The range of reasonable conduct is broad and the injured plaintiff must be given the benefit of every doubt in assessing her conduct.

 Kallir, Philips, Ross, Inc., 420 F. Supp. at 925.

 At trial, the plaintiff testified that following her departure from the Bank, she searched for comparable employment in the banking industry for about six months. The plaintiff testified that she used the outplacement services of Lee Hecht Harrison until the defendant cut her off from those services; that she contacted individuals in the banking industry to obtain leads on banking positions comparable to hers at Societe Generale; that she contacted executive recruiters; that she made many contacts through phone calls and luncheons; and that she progressed through the final rounds of interviews for two comparable jobs but was not offered either. After six months of pursuing comparable employment without receiving a single job offer, and without funds to continue living in New York City, the plaintiff enrolled as a full-time student in a physician's assistant program in Pennsylvania, where she continued to be enrolled to the date of the trial.

 As the defendant concedes, enrollment in school on a full-time basis does not, as a matter of law, constitute a failure to mitigate. See Def.'s Mem. of Law in Supp. of its Mot. for J. as a Matter of Law Pursuant to Fed. R. Civ. P. 50(b) and a New Trial Pursuant to Fed. R. Civ. P. 59(a) at 12-13. When a claimant attends school during the back pay period, "the central question is whether an individual's furtherance of his education is inconsistent with his responsibility 'to use reasonable diligence in finding other suitable employment.'" EEOC v. Local 638, 674 F. Supp. 91, 104 (S.D.N.Y. 1987) (quoting Ford Motor Co., 458 U.S. at 231). As the jury instructions in this case stated, although an individual who opts to attend school and abandons her willingness to search for and return to work generally does not satisfy her duty to mitigate, "one who chooses to attend school only when diligent efforts to find work prove fruitless, or who continues to search for work even while enrolled in school, does meet the duty." Id.

 The plaintiff presented ample evidence at trial to demonstrate that her decision to enter school was in accord with her duty to mitigate. The defendant introduced no evidence to contradict the plaintiff's testimony that she spent the first six months after she left her job at Societe Generale trying to find a comparable position in the banking industry, nor any evidence that the plaintiff received and rejected an offer of employment in the banking industry or any other comparable employment. The plaintiff testified that she decided to enroll in school only after she ran out of money and was unable to support herself, and that she decided to attend school to become a physician's assistant in order to improve her employment opportunities. Thus, the plaintiff chose to pursue this career option because she could not get a job in New York despite her diligent efforts, and without a job she could not continue to live in New York. A plaintiff does not have to endure extreme hardship to meet her mitigation obligations; rather, the obligation is one of "reasonable diligence." Ford Motor Co., 458 U.S. at 231. The plaintiff presented ample evidence from which the jury could conclude that she had exercised reasonable diligence.

 The defendant's argument that the plaintiff would receive a "double benefit" if she received a back pay award for the period she was enrolled in school is groundless. As other courts have held, a plaintiff does not reap a "double benefit" by returning to school when it is the best alternative the plaintiff has. See, e.g., Hanna v. American Motors Corp., 724 F.2d 1300, 1308-10 (7th Cir.), cert. denied, 467 U.S. 1241, 82 L. Ed. 2d 821, 104 S. Ct. 3512 (1984); Local 638, 674 F. Supp. at 104 (finding that the plaintiffs who returned to school "did so as a means not to abandon the job market but, on the contrary, to acquire marketable skills and thus to enter a labor pool").

 On the basis of the evidence presented at trial, and drawing all reasonable inferences in favor of the plaintiff, the jury was justified in finding that the defendant failed to meet its burden of demonstrating that the plaintiff's enrollment in school six months after diligently searching for employment in the banking industry constituted a failure to mitigate. See Hanna, 724 F.2d at 1306-10. ...


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