evidence that plaintiff worked other jobs following discriminatory rejection by defendant was contrary to finding that she was not reasonably diligent in seeking other employment
How later courts described this case
- evidence that plaintiff worked other jobs following discriminatory rejection by defendant was contrary to finding that she was not reasonably diligent in seeking other employment
Written by the judges who cited it.
The opinion
( (
STATE OF MAINE
Cumberland, ss. Clerk's Office M,c/
STATE OF MAINE
JUL O3 2018 SUPERIOR COURT
I 2 : 01 P""'-·
CUMBERLAND, ss. CIVIL ACTION
RECEIVED DOCKET NO. CV-17-98
GLADSTONE 0. LEWIS, )
)
Plaintiff )
) ORDER ON DEFENDANT'S
V. ) MOTION FOR PARTIAL
) SUMMARY mDGMENT
GOODWILL INDUSTRIES OF )
NORTHERN NEW ENGLAND, )
)
Defendant. )
Before the Court is Defendant Goodwill Industries of Northern New England's
("Goodwill") motion for partial summary judgment. Plaintiff Gladstone Lewis ("Lewis") has
opposed this motion. The Court has considered the parties' filings, and for the following reasons,
the motion is granted in part and denied in part.
I. Background
The following facts, which are material to the present motion, are drawn from Goodwill's
Statement of Material Facts and are undisputed by Lewis. Lewis was hired by Goodwill in 2002
as a primary advocate, or, as his position was titled at the time of his termination, a direct support
professional. (Def s. S.M.F. ,r 1.) In that position, he was responsible for providing support to adult
residents in Goodwill's residential program, primarily through aiding residents with activities of
daily living. (Id ,r 2.) Lewis was placed on administrative leave beginning February 28, 2016,
pending completion of an investigation into allegations that Lewis had engaged in client abuse.
(Id ,r 4.) Following .the investigation, Lewis's employment was terminated effective March 3,
2016. (Id. ,r 5.)
Since at least 2007, Lewis has also been a shared living provider for Residential Resources
Inc. (Id. ,r 10.) In this role, Lewis hosts an adult client in his home and provides meals,
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Plaintiff-Guy Loranger, Esq.
Defendant-Frederick Finberg, Esq.
(
transportation, and other support. (Id) In exchange for providing this service, Lewis receives an
annual stipend of $27,000 and approximately $600 per month for room and board. (Id) Since his
departure from Goodwill, Lewis has obtained employment as a commissary representative,
distributing commissary to prisoners for approximately five hours per week. (Id ,r,r 13-14.)
On February 27, 2017, Lewis filed a complaint in this Court against Goodwill for racial
discrimination and retaliation. Goodwill filed the present motion on May 9, 2018. Goodwill's
primary purpose in bringing this motion is to request Lewis be precluded from pursuing a claim
for front pay and back pay due to his alleged failure to mitigate his damages. Goodwill also
requests Lewis's jury demand be stricken because Lewis did not pay the jury deposit fee.
II. Standard of Review
Summary judgment is appropriate if, based on the parties' statements of material facts and
the cited record, there is no genuine issue of material fact and the moving party is entitled
to judgment as a matter oflaw. M.R. Civ. P. 56(c); Dyer v. Dep't ofTransp., 2008 l\1E 106, ,r 14,
951 A.2d 821. "A material fact is one that can affect the outcome of the case. A genuine issue of
material fact exists when the factfinder must choose between competing versions of the
truth." Dyer, 2008 l\1E 106, ,r 14, 951 A.2d 821 (internal citation and quotation marks omitted).
When deciding a motion for summary judgment, the court reviews the evidence in the light most
favorable to the non-moving party. Id
When, as here, the party with the burden moves for summary judgment, the movant has
the burden of establishing each element of its claim without dispute as to any material fact in the
record. See Cach, LLC v. Kulas, 2011 l\1E 70, ,r 8, 21 A.3d 1015. If the motion for summary
judgment is properly supported, the burden shifts to the non-movant to respond with specific facts
indicating a genuine issue for trial. See M.R. Civ. P. 56(e). If the non-movant fails to properly
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respond, the movant's factual assertions will not be deemed admitted merely because of the non
movant's failure to respond. Cach, LLC, 2011 l\1E 70, ,r 9, 21 A.3d 1015. The movant must still
properly support each factual assertion with citation to the record and therefore still has the burden
of establishing the absence of a genuine issue of material fact. M.R. Civ. P. 56(h)(4); Cach, LLC,
20111\ffi 70, ,r 9, 21 A.3d 1015.
III. Discussion
Goodwill brings this motion under the theory that Lewis has failed to properly mitigate his
damages, contending that Lewis has willfully removed himself from the job market in the field of
direct support services during the pendency of this litigation and has not made a reasonable effort
to find employment in any other field. (Def.'s Mot. Summ. J. 2.) Consequently, Goodwill moves
this Court to grant partial summary judgment against Lewis by finding Lewis is precluded from
pursuing damages of back pay or front pay. (Id.) Lewis's position is that he has diligently applied
for employment, but that a number of factors have affected his employability, including his age,
his time constraints due to his position as a shared living provider, and the fact that he was
terminated from Goodwill following allegations of abuse. (Pl.'s Opp'n to Mot. Summ. J. 3.)
In an employment discrimination case, front and back pay are subject to reduction by the
amount of "actual earnings on another job during the pertinent period or by whatever amount the
victim could with reasonable diligence have earned during that time." Me. Human Rights Comm 'n
v. Dep't ofCorrs., 474 A.2d 860, 869 (Me. 1984) (internal quotations and alterations omitted). In
requesting that Lewis be precluded from pursuing front and back pay as damages, Goodwill
essentially characterizes this issue as an all-or-nothing analysis. (See Def. 's Mot. Summ. J. 2.)
However, a mitigation of damages analysis occurs on a continuum and requires consideration of
not only whether or not a plaintiff attempted to mitigate their damages, but the extent to which
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they made such an effort. Furthermore, if the plaintiff did fail to some extent to mitigate their
damages, it is the defendant's burden "to prove facts to enable the court to determine the
appropriate deduction." Me. Human Rights Comm 'n, 474 A.2d at 869. As the Law Court has
repeatedly recognized,
defendant's burden of proving 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 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.
Id. (quoting EEOC v. Kallir, Philips, Ross, Inc., 420 F. Supp. 919 (S.D.N.Y. 1976)).
The Court agrees with Goodwill that much of the evidence Lewis submitted with his
opposition to this motion cannot be considered because it was not disclosed during the discovery
period, despite Goodwill's request for the production of responsive documents. However,
Goodwill has the burden to prove lack of diligence and the amount by which Lewis's recovery of
front and back pay should be reduced. Accordingly, Goodwill has designated Sue Howard, M.Ed.,
as a vocational rehabilitation expert who is expected to testify that Lewis's job search efforts have
been unreasonable. (See Def.'s Ex. H 10.)_However, Lewis disputes Ms. Howard's conclusions
(Pl.'s Opp'n to Def.'s S.M.F. ,r 33) and should have the opportunity to cross-examine her on the
basis of her opinion.
Goodwill also points to portions of Lewis's deposition testimony where he appears to admit
that he has not applied for work in the field of direct support services because he does not want to
explain to a potential employer that he was terminated for medicinal errors and client abuse. (Lewis
Depo. 111 :8-22.) Goodwill finds support for its position that this fact precludes Lewis from
recovery of front and back pay in Walsh v. Town ofMillinocket, wherein the Law Court upheld
the trial court's reduction of a back pay award and denial offront pay because the plaintiff"'unduly
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limited the scope of her Oob] search"' when she did not apply for positions similar to her prior job
an hour away from her home. 2011 l\1E 99, ,r,r 33-35, 28 A.3d 610. The Walsh Court contrasted
that decision with the award of back pay in Me. Human Rights Comm 'n, wherein the trial court,
as affirmed by the Law Court, found it would have been unreasonable to expect the plaintiff to
commute or move two-and-a-half hours from her home to accept employment. Id ,r 35; see Me.
Human Rights Comm 'n, 474 A.2d at 869.
Both Walsh and Me. Human Rights Comm 'n were decided principally based on the
geographic scope of the plaintiff's job search. Here, Goodwill argues that the scope of Lewis's job
search was unduly limited because he chose not to pursue employment in the same professional
field. Even if Lewis did unreasonably limit his job search in that manner (an issue which Lewis
disputes), there is some evidence that Lewis compensated by expanding the scope ofhis job search
to seek employment in other fields such as transportation and computer networking. (Lewis Depo.
113:19-114:3; 117:6-24). Further, because both parties acknowledge that Lewis has attained some
employment since his termination from Goodwill, it is apparent that he has not wholly failed to
mitigate his damages.' See, e.g., Me. Human Rights Comm'n, 474 A.2d at 869 (evidence that
plaintiff worked other jobs following discriminatory rejection by defendant was contrary to finding
that she was not reasonably diligent in seeking other employment). Beyond that, even if Lewis's
claims for front and back pay should be reduced to some extent, Goodwill has not adduced
sufficient evidence to enable the Court to determine an appropriate deduction.
1
Although Goodwill attempts to minimize Lewis's mitigation efforts by noting he only works five hours per week as
a commissary representative (Defs. S.M.F. ,r 13), Lewis testified at his deposition that this position pays $25.00 per
hour and that he sometimes works as many as eight to ten hours per week. (Lewis Depo. 110:19-111:5; 119:5-6.)
While it is clear this job has not fully replaced the income he was earning at Goodwill, given that his pay rate at
Goodwill was only $15.64 per hour (Defs. S.M.F. ,r 30), his pay from the commissary position is not negligible by
comparison.
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Lewis's deposition testimony regarding his job search efforts, Plaintiffs Exhibit 3 attached
to his opposition - which was produced in discovery 2 - and the mere fact that Lewis did attain
some employment following his termination from Goodwill, are sufficient evidence of an existing
material fact question regarding mitigation of damages. See M.R. Civ. P. 56(e). Based on the
current record, a reasonable factfinder could fmd that Lewis has not made a reasonable effort to
mitigate his damages; however, a reasonable factfinder could also find the opposite. When
considering the extent to which Lewis has attempted to mitigate his damages in order to determine
an appropriate deduction, if any, there are many points along the continuum at which a reasonable
factfmder could land given the evidence on both sides. Viewing the evidence in the light most
favorable to Lewis as the non-moving party, it is apparent that Goodwill has not conclusively
established the unreasonableness of Lewis's job search efforts or the extent to which Lewis has
mitigated or attempted to mitigate his damages. Resolution of these issues will require credibility
determinations and weighing of evidence. Thus, whether Lewis's entitlement to front or back pay
should be reduced for failure to mitigate damages, and the amount ofsuch reduction, if any, remain
genuine issues of material fact, and summary judgment is not appropriate at this time. See Dyer,
2008 ME 106, ,r 14,951 A.2d 821.
Goodwill has also requested the Court strike Lewis's jury demand because Lewis did not
pay the jury deposit fee. Lewis does not dispute this contention and has conceded that he does not
intend to pursue his request for a jury trial. This portion of Goodwill's motion is therefore granted.
IV. Conclusion
For the foregoing reasons, Defendant Goodwill's Motion for Partial Summary Judgment
is GRANTED in part and DENIED in part. Plaintiff Lewis's jury demand is hereby stricken. In all
2
The Court recognizes that Exhibit 3 is minimally probative of Lewis's job search efforts. However, taken together
with his deposition testimony, it is sufficient to show there is a triable issue.
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other respects, Defendant Goodwill's motion is denied. The Clerk is directed to incorporate this
Order into the docket by reference pursuant to Maine Rule of c·
Dated: 7)2' Lan
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