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No mitigation of damages of earnings from inferior job in wrongful termination damages

Villacorta v. Cemex Cement, Inc. (2013) 221 Cal.App.4th 1425, 165 Cal.Rptr.3d 441

Plaintiff a mechanical engineer worked for the Defendant employer for 15 years in Philippines until he was transferred to Victorville’s plant in 2003. Facing bad economy, employer laid off hundreds of his employees between 2007 through 2009. Plaintiff was terminated in February, 2008. Plaintiff at this point was earning an annual salary of $65,699.  Plaintiff remained unemployed for approximately eight months. On October 15, 2008, Plaintiff began working as a maintenance supervisor for another employer and earned an annual salary of approximately $69,300. However, his new workplace was located significantly far from him home and previous workplace which required him to rent an additional residence and was able to see his family only on weekends.  Plaintiff had several other additional expenses.

Plaintiff asserted discrimination based on national origin as he is Filipino, and the Defendant employer’s managers preferred Venezuelans. The jury awarded Plaintiff $198,000 for lost wages. Defendant contended that the damage award was excessive and then moved for a new trial and/or judgment notwithstanding the verdict (JNOV) due, in part, to substantial evidence not supporting the damages award.

The Court of Appeal affirming the award and citing the Supreme Court’s discussion on mitigating wrongful termination damages in Parker v. Twentieth Century–Fox Film Corp. (1970) 3 Cal.3d 176, 89 Cal.Rptr. 737, 474 P.2d 689 stated as follows:

“The general rule is that the measure of recovery by a wrongfully discharged employee is the amount of salary agreed upon for the period of service, less the amount which the employer affirmatively proves the employee has earned or with reasonable effort might have earned from other employment. However, in order for the employee’s earnings to be applied in mitigation, “the employer must show that the other employment was comparable, or substantially similar, to that of which the employee has been deprived [.]” Thus, if the new job is different or inferior, then the wages from that job may not be used to mitigate damages.” (Emphasis added.) (Villacorta v. Cemex Cement, Inc. (2013) 221 Cal.App.4th 1425, 165 Cal.Rptr.3d 441)