Must a Plaintiff Mitigate Emotional Distress Damages in Title VII Cases?

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Recently, Judge Haggerty of the District of Oregon, upon a motion filed by the EEOC for the Judge to reconsider his earlier decision, concluded that there is no duty to mitigate emotional distress damages under Title VII.  See EEOC v. Fred Meyer Stores, Inc., No. 3:11-cv-00832-HA, 2013 U.S. Dist. LEXIS 134089 (D. Or. Sept. 19, 2013).  The court’s earlier holding, which Judge Haggerty reversed on reconsideration, is found at EEOC v. Fred Meyer Stores, Inc., No. 3:11-cv-00832-HA, 2013 U.S. Dist. LEXIS 85649 (D. Or. June 17, 2013).  The employer’s position was that a plaintiff claiming emotional distress damages fails to mitigate those damages when s/he fails to seek psychological counseling, and that in such circumstances, damages for emotional distress should be reduced. Id. at *13.  In originally agreeing with the employer’s argument, Judge Haggerty noted the following:

In addition to Petroci v. Transworld, No. 12-00729, 2012 U.S. Dist. LEXIS 161312, 2012 WL 5464597 (W.D.N.Y. Oct. 19, 2012), upon which defendant relies, there are several cases indicating that the imposition of a duty to mitigate emotional damages is appropriate. See Neal v. Director, Dist. of Colombia Dept. of Corrections, No. 93-2420, 1995 U.S. Dist. LEXIS 11461, 1995 WL 517249, at *15 (D.D.C. Aug. 9, 1995) [Lamberth, J.] (holding that plaintiff failed to mitigate front pay damages by refusing to take anti-depressants); In re Air Crash Disaster at Charlotte, N.C. on July 2, 1994, 982 F. Supp. 1101, 1111 (D.S.C. 1997) (in holding that even though plaintiff refused to take antidepressants, he did not fail to mitigate damages, the court explained that a plaintiff has the duty to mitigate damages and the “court can consider whether that person has failed to follow the advice of their physician or other treating professional”) (citation omitted); Salas v. United States, 974 F. Supp. 202, 211 (W.D. N.Y. 1997) (concluding that plaintiff cannot be charged with a failure to mitigate damages because she made reasonable efforts to treat and cure her condition); Baker v. Dorfman, No. 97-7512-DLC, 1999 U.S. Dist. LEXIS 4451, 1999 WL 191531, at *6 (S.D.N.Y. Apr. 6, 1999) (holding that a jury could have reasonably concluded, after receiving an instruction on mitigation of damages related to pain and suffering, that plaintiff took reasonable steps to alleviate his distress);Rogan v. Lewis, 975 F. Supp. 956, 966 n.14 (S.D. Tex 1997) (explaining that plaintiff’s failure to exhaust administrative remedies may be relevant to plaintiff’s failure to mitigate emotional damages); Chuy v. Philadelphia Eagles Football Club, 431 F. Supp. 254, 263-64 (D.C. Pa. 1977) (upholding a jury instruction on mitigation of emotional damages).

The Ninth Circuit’s decision in Gomez v. Am. Empress Ltd. P’ship, 189 F.3d 473 (9th Cir. 1999) is also persuasive. In Gomez, the plaintiff hurt his back while working and could no longer perform his job duties. He sued his employer for economic injuries, pain and suffering, and emotional injuries. The trial court reduced the plaintiff’s award by twenty-five percent, reasoning that if plaintiff had tried to find other employment or otherwise mitigated his damages, both economic and non-economic damages would have been reduced. Id. at 2. This holding indicates that the Ninth Circuit supports the imposition of a duty to mitigate emotional damages.

Plaintiff has failed to direct this court to a case that indicates that the duty to mitigate is inappropriate to limit emotional damages. In consideration of the arguments from both parties and the relevant case law, this court holds that the failure to mitigate emotional damages is a valid affirmative defense.

Id. at *13-16.

The EEOC moved for the judge to reconsider his decision, on the grounds that “Title VII contains no requirement that claimants mitigate their compensatory damages, and through this court’s Opinion and Order, it created a burden on plaintiffs that Congress did not intend.”  The EEOC argued that when amending Title VII in 1972, “Congress explicitly chose to include a duty of claimants to mitigate back pay losses.”  “Congress’ deliberate decision to carve out this duty to mitigate damages,” the EEOC continued, “clearly signifies that Congress did not intend to create a duty to mitigate all compensatory damages.”  (As a brief aside, for litigants wishing to make such an argument in subsequent litigation, the fact that the EEOC took this position in this litigation would arguably be entitled to at least some level of deference by courts.)

Also of note, the cases cited in Judge Haggerty’s original ruling primarily involved principles of general tort law, and not in the context of Title VII disputes.

In reversing his original holding on reconsideration, Judge Haggerty’s reasoning tracked the EEOC’s arguments:

Congress’ statutory purpose is most readily demonstrated by Congress’ 1972 Amendments to Title VII. In the 1972 Amendments, Congress explicitly chose to include a duty of claimants to mitigate back pay losses. Pub. L. No. 92-261, 86 Stat. 103, 107 (1972). Congress’ deliberate decision to carve out this duty to mitigate damages clearly signifies that Congress did not intend to create a duty to mitigate all compensatory damages. If Congress intended there to be a duty to mitigate all compensatory damages, it is illogical that it chose to single out the duty to mitigate back pay alone.

2013 U.S. Dist. LEXIS 134089 at *5.  The employer argued, and Judge Haggerty recognized, that the employee had raised the above argument for the first time on reconsideration. Id. at *3.  However, the court also noted that “[a] court abuses its discretion in denying a motion for reconsideration if the underlying decision involved clear error of law,” and went on to hold that the Court had committed clear error of law in its initial decision Id. at *3-4 (internal quotations and citations omitted).

For an interesting discussion of the issues raised by mitigation requirements for emotional distress damages in tort cases in general, see Eugene Kontrovich, The Mitigation of Emotional Distress Damages, 68 U. Chi. L. Rev. 491 (Spring 2001), available here.

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