Rybar v. Corporate Management, Inc.

Filing 53

ORDER denying Plaintiff's 44 Motion in Limine. Signed by District Judge Keith Starrett on July 16, 2015 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
ANGELIQUE C. RYBAR
V.

PLAINTIFF
CIVIL ACTION NO. 1:14-CV-242-KS-MTP

CORPORATE MANAGEMENT, INC.

DEFENDANT

ORDER
For reasons provided below, the Court denies Plaintiff’s Motion in Limine [44].
A.

Mitigation of Damages
First, Plaintiff argues that the Court should preclude Defendant from offering

any evidence or argument that Plaintiff failed to mitigate her damages or that she is
intentionally not looking for work. “A Title VII plaintiff has a duty to mitigate her
damages by using reasonable diligence to obtain substantially equivalent employment.”
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 have to establish the availability of substantially
equivalent employment.” Id. (citing Sellers v. Delgado College, 839 F.2d 1132, 1139 (5th
Cir. 1988) (Sellers II)).
Plaintiff argues that the Court should ignore Sellers II and apply Sparks v.
Griffin, 460 F.2d 433, 443 (5th Cir. 1972), in which the Fifth Circuit held that an

employer must prove that there were substantially equivalent jobs available to the
former employee, regardless of the employee’s efforts to find them. Plaintiff contends
that the Fifth Circuit panel in Sellers II had no authority to overrule the prior holding
in Sparks.
Plaintiff is correct that the Fifth Circuit’s “Rule of Orderliness” provides that “in
the absence of an intervening contrary or superseding decision by th[e] court sitting en
banc or by the United States Supreme Court, a panel cannot overrule a prior panel’s
decision.” Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999). However,
Plaintiff disregards the fact that accepting her argument would require the Court to
ignore more recent Fifth Circuit decisions.1 Although the Fifth Circuit applied Sparks
twice after Sellers II was decided,2 it has applied Sellers II more often and more
recently.3 District courts in the circuit are split on the issue. Some have applied
Sparks,4 while others have applied Sellers II.5

1

See, e.g. West v. Nabors Drilling USA, Inc., 330 F.3d 379, 393 (5th Cir. 2003);
Boehms v. Crowell, 139 F.3d 452, 460 (5th Cir. 1998); Sellers III, 902 F.2d at 1193;
Sellers II, 839 F.2d at 1139; Jackson v. Host Int’l, Inc., 426 F. App’x 215, 222 (5th
Cir. 2011).
2

Hill v. Pontotoc, 993 F.2d 422, 426 (5th Cir. 1993); Johnson v. Chapel Hill
Indep. Sch. Dist., 853 F.2d 375, 383 (5th Cir. 1988).
3

See, e.g. West, 330 F.3d at 393; Boehms, 139 F.3d at 460; Sellers III, 902 F.2d
at 1193; Jackson, 426 F. App’x at 222.
4

See, e.g. Paulissen v. Mei Techs., Inc., 942 F. Supp. 2d 658, 677 (S.D. Tex.
2013); Newcomb v. Corinth Sch. Dist., No. 1:12-CV-204-SA-DAS, 2015 U.S. Dist.
LEXIS 41700, at *19-*20 (N.D. Miss. Mar. 31, 2015); Buckingham v. Booz Allen
Hamilton, Inc., No. 4:13-CV-392, 2014 U.S. Dist. LEXIS 154326, at *6 (S.D. Tex.
Oct. 31, 2014); Bertrand v. City of Lake Charles, 2012 U.S. Dist. LEXIS 63330, at
2

The Court believes it more prudent to follow the Fifth Circuit’s more recent
decisions and apply the Sellers II standard. As noted above, multiple Fifth Circuit
panels have had an opportunity to apply the “Rule of Orderliness” in this context, and
they have not done so. Ignoring the more recent precedents would create more risk of
disorder than applying them. Therefore, the Court denies Plaintiff’s motion in limine
with respect to Defendant’s evidence and argument that she failed to mitigate her
damages.
B.

Unemployment Compensation
Next, Plaintiff argues that the Court should exclude all evidence or argument

as to the amount of unemployment compensation received by Plaintiff, and that such
benefits should offset a potential back pay award. As Plaintiff acknowledged in
briefing, the Fifth Circuit has specifically held that district courts may deduct
unemployment compensation benefits from a back pay award. Johnston v. Harris
County Flood Control Dist., 869 F.2d 1565, 1581 (5th Cir. 1989); see also Johnson, 853
F.2d at 382. But Plaintiff argues that the Court should apply the Eleventh Circuit’s

*21 n. 33 (W.D. La. May 3, 2012).
5

See, e.g. EEOC v. IESI La. Corp., 720 F. Supp. 2d 750, 755 n. 2 (W.D. La.
2010); EEOC v. E.I. du Pont de Nemours & Co., 406 F. Supp. 2d 645, 666 (E.D. La.
2005), rev’d in part on other grounds 480 F.3d 724 (5th Cir. 2007); Price v. Am.
Eagle Airlines, Inc., Civil Action No. 10-904, 2014 U.S. Dist. LEXIS 176510, at *32
(W.D. La. Dec. 22, 2014); Hardy v. City of Tupelo, No. 1:08-CV-28-SA-JAD, 2010
U.S. Dist. LEXIS 16902, at * (N.D. Miss. Feb. 25, 2010); EEOC v. Vidor Manor
Nursing Home, Inc., No. 1:07-CV-524-TH, 2008 U.S. Dist. LEXIS 123541, at *9
(E.D. Tex. June 12, 2008); Kirkwood v. Inca Metal Prods. Corp., No. 3:04-CV-226-D,
2008 U.S. Dist. LEXIS 6807, at *28-*29 (N.D. Tex. Jan. 30, 2008).
3

decision in Brown v. A.J. Gerrard Mfg. Co., 715 F.2d 1549, 1551 (11th Cir. 1983), in
which that court held that such offsets should be “consistently disallowed . . . .”
Of course, the Eleventh Circuit’s decision in Brown conflicts with applicable
Fifth Circuit precedent. See, e.g. Johnston, 869 F.2d at 1581; Johnson, 853 F.2d at 382;
see also Matherne v. Wilson, 851 F.2d 752, 762 n. 57 (5th Cir. 1988) (citing Brown, but
not applying it). Therefore, the Court declines to apply it and forbid all evidence of
unemployment compensation. Without knowing what Defendant intends to argue or
offer into evidence, the Court can not provide a more specific ruling regarding what will
be allowed. The parties can offer more specific arguments at trial.
SO ORDERED AND ADJUDGED this 16th day of July, 2015.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE

4