Wadler v. Bio-Rad Laboratories, Inc. et al

Filing 220

ORDER GRANTING MOTION FOR LEAVE FOR RECONSIDERATION AND GRANTING ON RECONSIDERATION MOTION FOR JUDGMENT AS A MATTER OF LAW ON MITIGATION DEFENSE by Judge Joseph C. Spero granting 219 Motion for Leave to File. (jcslc1S, COURT STAFF) (Filed on 2/6/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SANFORD S. WADLER,

Case No. 15-cv-02356-JCS

Plaintiff,
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v.

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ORDER GRANTING MOTION FOR
LEAVE FOR RECONSIDERATION
AND GRANTING ON
RECONSIDERATION MOTION FOR
JUDGMENT AS A MATTER OF LAW
ON MITIGATION DEFENSE

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Re: Dkt. No. 219

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BIO-RAD LABORATORIES, INC., et al.,

United States District Court
Northern District of California

Defendants.

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On February 3, 2017, the Court granted Plaintiff’s motion for judgment as a matter of law

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on Defendants’ mitigation of damages defense. See Docket No. 215. At approximately the same

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time, Defendants filed an opposition brief addressing Plaintiff’s motion. As the Court had set no

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deadline for filing an opposition brief and there was no undue delay in filing that brief, the Court

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GRANTS the Motion for Leave to File a Motion for Reconsideration [Docket No. 219] and treats

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Defendants’ opposition brief as a motion to reconsider. Having reconsidered the arguments in

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Defendants’ opposition brief, the Court GRANTS Plaintiff’s motion for judgment as a matter of

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law as to Defendants’ mitigation defense.

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The listings cited by Defendants in their brief as evidence that comparable jobs were

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available to Mr. Wadler offer no details beyond the titles of the positions; they do not describe the

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job responsibilities of the positions or include any information about salary or benefits. The mere

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fact that some of these job titles sound similar to Mr. Wadler’s is not sufficient to support a

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reasonable finding by the jury that any of these positions were substantially equivalent to Mr.

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Wadler’s position at Bio-Rad. Nor is there any other evidence in the record from which a

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reasonable jury could find that comparable employment was available during the relevant period.

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Instead, the jury would be required to speculate as to the availability of substantially equivalent

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employment.

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Defendants’ reliance on E.E.O.C. v. Farmer Bros. Co., 31 F.3d 891, 894 (9th Cir. 1994) is
misplaced. In that case, the court denied summary judgment as to the defendant’s mitigation

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defense where the defendant had presented “reliable data, based upon a random statistical sample

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of 148 companies located near [the plaintiff’s] residence, showing that substantially equivalent

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jobs were widely available” during the relevant period. 31 F.3d 891, 906 (9th Cir. 1994). That

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case differed from the facts here in two key respects. First, Defendants here have not offered any

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“reliable data” establishing the availability of comparable jobs as a statistical matter. Second, in

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contrast to the plaintiff in Farmer Brothers, who held an “unskilled” position when the defendant

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United States District Court
Northern District of California

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terminated her, Mr. Wadler held a high-level position and had acquired decades of seniority at

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Bio-Rad. Under such circumstances, relying on generic job titles to show the availability of

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comparable positions is particularly inappropriate.

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Sangster v. United Air Lines, Inc., 633 F.2d 864, 868 (9th Cir. 1980) also is not on point.

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In that case, the court concluded there was sufficient evidence to show that the plaintiff had failed

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to mitigate her damages where she had been terminated from her position as a flight attendant

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supervisor and she admitted that she was aware that a comparable position “had been available . . .

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for at least the last few years of her unemployment.” Id. at 868. She also admitted that “other . . .

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employees on similar circumstances had obtained” such positions. Id. There are no such

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admissions here.

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Therefore, on reconsideration, the Court GRANTS Plaintiff’s motion for judgment as a
matter of law on Defendants’ mitigation defense.
IT IS SO ORDERED.
Dated: February 6, 2017
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JOSEPH C. SPERO
Chief Magistrate Judge

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