United States District Court, D. Maine
KRISTIN A. KING, Plaintiff,
STATE OF MAINE, DEPARTMENT OF CORRECTIONS, et al., Defendants.
KRISTIN A KING, Plaintiff, represented by DAVID G. WEBBERT,
JOHNSON WEBBERT & YOUNG LLP & CAROL GARVAN, JOHNSON WEBBERT &
DEPARTMENT OF CORRECTIONS, Defendant, represented by KELLY L.
MORRELL, OFFICE OF THE ATTORNEY GENERAL & SUSAN P. HERMAN,
ASSISTANT ATTORNEY GENERAL.
D GARRISON, Defendant, represented by KELLY L. MORRELL,
OFFICE OF THE ATTORNEY GENERAL & SUSAN P. HERMAN, ASSISTANT
ORDER[*] ON PLAINTIFF'S MOTION
FOR PARTIAL SUMMARY JUDGMENT
LEVY, District Judge.
A. King was employed as a correctional officer at the
Downeast Correctional Facility ("DCF") from
September 2004 until her termination in September 2011. ECF
No. 41 at 1, 3, 10 (First Amended Complaint). She brings this
action against her former employer, the State of Maine,
Department of Corrections, alleging violations of Title VII
of the Civil Rights Act of 1964, 42 U.S.C.A. Â§ 2000e et
seq. (2016), and Title I of the Civil Rights Act of
1991, 42 U.S.C.A. Â§ 1981a (2016), and the Maine Human Rights
Act, 5 M.R.S.A. Â§Â§ 4551-4634 (2016), by (1) subjecting her to
intentional discrimination based on her sex and sexual
orientation; (2) subjecting her to a hostile work environment
on the basis of her sex and sexual orientation; and (3)
retaliating against her in response to her charge of
discrimination. ECF No. 41 at 3, 11. King also sues her
former supervisor, David D. Garrison, under 42 U.S.C.A. Â§
1983 (2016), alleging that he deprived her of rights
guaranteed by the First and Fourteenth Amendments to the
United States Constitution. ECF No. 41 at 3, 12-13. The
factual circumstances surrounding King's employment and
termination are set forth in the Court's Order on
Defendants' Motion for Summary Judgment dated July 12,
has moved for partial summary judgment pursuant to Federal
Rule of Civil Procedure 56 on the Department's and
Garrison's (collectively, "the Department")
affirmative defense that King failed to mitigate her lost
wage damages. ECF No. 61. She contends that the undisputed
facts establish that she conducted a diligent job search
following her termination from the DCF in 2011, having
"applied for hundreds of jobs in a wide variety of
fields and locations[.]" ECF No. 61 at 2; ECF No. 62 at
1-2, Â¶ 4. King argues that the Department has produced no
evidence by which it could establish that King failed to
mitigate her damages. ECF No. 61 at 5.
Department disagrees, citing evidence that King submitted at
least two employment applications that contained false
information: at least two applications stating that she had
been laid off from the DCF and identifying "Jimmy
Dolan" as her supervisor, and one or more applications
indicating that, as a correctional officer, she supervised
four correctional officers. ECF No. 69 at 2, 3.
failure to mitigate damages is in the nature of an
affirmative defense and the defendant, therefore, must carry
the devoir of persuasion on this issue."
Trainor v. HEI Hospitality, LLC, 699 F.3d 19, 29
(1st Cir. 2012) (citing Quint v. A.E. Staley Mfg.
Co., 172 F.3d 1, 15-16 (1st Cir. 1999)); see
also Carey v. Mt. Desert Island Hosp., 156 F.3d
31, 41 (1st Cir. 1998) (stating that the employer bears the
burden of proof on the issue of mitigation). A prevailing
claimant is presumptively entitled to an award of back pay
from the date that her employment was terminated to the date
of the entry of judgment, "provided it is made to appear
that reasonable diligence was exercised in the effort to
secure other suitable employment[.]" Quint, 172
F.3d at 15-16 (internal quotation omitted) (quoting Ford
Motor Co. v. EEOC, 458 U.S. 219, 231-32 (1982)).
"As long as the claimant has made some effort to secure
other employment, the burden to prove failure to mitigate
normally resides with the defendant-employer, which then must
show that (i) though substantially equivalent jobs were
available in the relevant geographic area, (ii) the claimant
failed to use reasonable diligence to secure suitable
employment." Id. at 16 (citations omitted).
King asserts and the Department admits that following her
termination in September 2011, she "applied for hundreds
of jobs in a wide variety of fields and locations[.]"
ECF No. 76 at 2; ECF No. 62 at 1-2, Â¶ 4; ECF No. 70 at 1, Â¶
4. King has thus shown that she made some
effort to secure other suitable employment. The Department
does not explicitly dispute this, and instead seeks to avoid
summary judgment on the basis that there is a factual dispute
as to whether King used reasonable diligence to secure
suitable employment because she submitted two or more
employment applications containing false information.
See ECF No. 69 at 3-4.
Department's proof is silent, however, as to the first
element of its burden-that substantially equivalent work was
available to King. Accordingly, even if evidence that two or
more of King's hundreds of applications contained false
information is treated as creating a factual dispute as to
the reasonableness of her diligence in seeking employment,
the Department has failed to produce evidence of the
existence of substantially equivalent jobs in the relevant
hearing held on May 24, 2016, the Department asserted for the
first time that the proof of the availability of
substantially equivalent jobs is contained in King's own
documentation of her work search following her termination
from the DCF, including jobs in security listed on her work
search logs. Oral Arg. Hr'g, May 24, 2016. However, as
already stated, the Department admits the facts put forth by
King regarding her job search, and its statement of
additional facts does not contain any facts addressing the
availability of substantially equivalent jobs in the relevant
geographic area. Under Local Rule 56(f), the court has
"no independent duty to search or consider any part of
the record not specifically referenced in the parties'
separate statement of facts." Loc. R. 56(f). Based on
the facts put forth by the Department, there is no basis to
conclude or infer that jobs that are comparable to King's
prior position at the DCF were available in the relevant
geographic area. Accordingly, the Department has failed to
create an issue of disputed material fact as to the first
element of its failure to mitigate affirmative defense.
foregoing reasons, King's motion for partial summary
judgment (ECF No. 61) is GRANTED.