Disabilities Discrimination

Second Circuit Eases Employer Burden When Employees Fail to Mitigate Damages

An HIV-positive former bartender who was fired by the Buffalo Hilton Hotel in Violation of the Americans with Disabilities Act is not entitled to certain monetary awards because he failed to mitigate his damages by seeking another job, the U.S. Court of Appeals for the Second Circuit has ruled (Greenway v. Buffalo Hilton Hotel, 2ndCir., Nos. 97-7220, 97-7269, 4/30/98).

In 1996, a U.S. District Court jury found that Danny T. Greenway was fired in violation of the ADA and the New York Human Rights Law, and awarded Greenway a total of $1.4 million (14 HRR 1327,12/9/96). Although Greenway accepted a temporary job for six months after his February 1994 discharge, he did not look for another bartender job. He also trained to be a machinist after his discharge, but said he could not find machinist work, and has not worked since October 1994, the court said.

The appeals court reduced the jury's $1.4 million award to $771,000. In reviewing the verdict, the appeals court found that although Greenway did not actively seek comparable employment after he was discharged, the Hilton failed to prove that suitable positions existed for which Greenway could have applied.

For that reason, the appeals court upheld $50,000 for future health insurance premiums and $324,000 for the cost of Greenway's future medications. The court reduced the $65,000 back pay award by $7,000 and awarded Greenway $10,000 in front pay. The court also reduced the punitive award from $1 million to $200,000.

Compensatory Awards Vacated. Because of Greenway's failure to mitigate damages by seeking work following his discharge, the Second Circuit vacated his front- and back-pay awards, as well as the damages for future health insurance premiums and future medication costs.

"Typically, the employer has the burden to demonstrate that suitable work existed in the marketplace and that its former employee made no reasonable effort to find it," the court said.

However, the U.S. Court of Appeals for the Eleventh Circuit held in 1991 that an employer does not have to prove that comparable employment was available to an employee who does not seek work (Weaver v. Casa Gallardo Inc., 55 FEP Cases 27).

The Second Circuit noted that, aside from six months of temporary work, there was no showing that Greenway engaged in a diligent search for work. Greenway's training for another job was not a substitute for a diligent job search, the court said.

The court upheld the punitive damages, interest costs, and attorneys fees awarded to Greenway by the lower court.

Judge Richard J. Cardamone wrote the decision which Judges John M. Walker and Pierre N. Leval joined. The Second Circuit covers Connecticut, New York, and Vermont.