United States District Court, S.D. Mississippi, Southern Division
ANGELIQUE C. RYBAR, Plaintiff,
CORPORATE MANAGEMENT, INC., Defendant.
MEMORANDUM OPINION AND ORDER
KEITH STARRETT, District Judge.
For the reasons below, the Court denies Defendant's Motion for Partial Summary Judgment .
This is a Title VII case. Plaintiff began working for Defendant in March 2005, in the business office of a nursing home owned by Defendant. In July 2008, she was promoted to Director of the business office, and in June 2009, she was promoted to Executive Administrative Assistant for Defendant's owner, Ted Cain.
Plaintiff alleges that Cain began to sexually harass her in April 2011, and that she refused his advances. In August 2012, Cain allegedly threatened to move Plaintiff to another position. In January 2013, Plaintiff was demoted to receptionist, and in February 2013, Defendant decreased Plaintiff's salary and took away her company phone and car. Three days later, Defendant gave Plaintiff a 90-day notice of termination.
Plaintiff filed this lawsuit. She alleges that Cain sexually harassed her, and that Defendant discriminated against her because of her sex and retaliated against her because she refused Cain's sexual advances. She seeks a variety of damages, including back pay and future wages. Defendant filed a Motion for Partial Summary Judgment  on Plaintiff's claims for back pay and future wages, which the Court now addresses.
II. STANDARD OF REVIEW
Rule 56 provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a); see also Sierra Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010). "An issue is material if its resolution could affect the outcome of the action." Sierra Club, Inc., 627 F.3d at 138. "An issue is genuine' if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party." Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010).
The Court is not permitted to make credibility determinations or weigh the evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009). When deciding whether a genuine fact issue exists, "the court must view the facts and the inference to be drawn therefrom in the light most favorable to the nonmoving party." Sierra Club, Inc., 627 F.3d at 138. However, "[c]onclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial." Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002).
Defendant argues that the Court should grant summary judgment as to Plaintiff's claims for back pay and future wages because she failed to mitigate her damages. "A Title VII plaintiff has a duty to mitigate her damages by using reasonable diligence to obtain substantially equivalent employment." Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1045 (5th Cir. 1998). "Substantially equivalent employment" is "employment which affords virtually identical promotional opportunities, compensation, job responsibilities, working conditions, and status as the position from which the Title VII claimant has been discriminatorily terminated." Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927, 936 (5th Cir. 1996). "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." Sellers v. Delgado College, 902 F.2d 1189, 1193 (5th Cir. 1990) ( Sellers III ).
"[T]he employer has the burden of proving failure to mitigate. To meet this burden, an employer may demonstrate that substantially equivalent work was available and that the Title VII claimant did not exercise reasonable diligence to obtain it." Id. However, "if an employer proves that an employee has not made reasonable efforts to obtain work, the employer does not also have to establish the availability of substantially equivalent employment." Id. "[T]he determination of whether or not a Title VII claimant uses reasonable diligence in obtaining substantially comparable employment is a determination of fact...." Id.
Plaintiff presented a sworn affidavit [37-1], in which she claims to have made at least three calls per week to potential employers since she was terminated in February 2013. She claims that, on average, only one call out of twelve per month has revealed an open position, which she has applied for each time. She has focused on medical office jobs doing Medicaid and Medicare billing. Although she has work experience in the casino industry, she has not applied for casino jobs because she has no one to care for her son on nights and weekends.
It appears, though, that Plaintiff effectively ceased her job search in October 2014. She did not seek employment from October 2014 to April 2015 because two potential employers led her to believe that they were going to offer her a job. She also did not seek employment for ...