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HUEGEL v. TISCH

April 7, 1988

Roland C. Huegel, Plaintiff
v.
Preston Tisch, Postmaster General, Defendant



The opinion of the court was delivered by: TROUTMAN

 E. Mac Troutman, S.J.

 This case arises under the Rehabilitation Act of 1973, 29 U.S.C. ยงยง 791 and 794. Plaintiff Ronald Huegel alleges that he was denied employment with the United States Postal Service because of a back condition. He further alleges that his physician submitted a certification that he was medically able to perform the duties of the position for which he had applied in September, 1978. Plaintiff seeks an award of backpay and attorney's fees, as well as employment in the position for which he had applied, including retroactive seniority and all benefits for which he would have been eligible had he been hired in 1978.

 In this motion for partial summary judgment, defendant seeks only to limit the periods of time for which plaintiff might be eligible for backpay if he succeeds in proving his case at trial. Specifically, defendant contends that, as a matter of law, there can be no backpay award for the two year period during which plaintiff was a full-time student in a medical technology program. Moreover, defendant further contends that plaintiff's eligibility for backpay ended in early 1985 when the Postal Service unconditionally offered plaintiff employment in the position he seeks. Plaintiff refused the offer, which did not include any provision for retroactive seniority or benefits.

 Both of these issues implicate the plaintiff's duty to mitigate damages in an employment discrimination case, as explained at length by the U.S. Supreme Court in Ford Motor Co. v. EEOC, 458 U.S. 219, 102 S. Ct. 3057, 73 L. Ed. 2d 721 (1982) and other cases. See, e.g., Smith v. American Service Co. of Atlanta, Inc., 796 F.2d 1430 (5th Cir. 1986); Miller v. Marsh, 766 F.2d 490 (11th Cir. 1985); Nord v. U.S. Steel Corp., 758 F.2d 1462 (11th Cir. 1985); Brady v. Thurston Motor Lines, Inc., 753 F.2d 1269 (4th Cir. 1985); Hanna v. American Motors Corp., 724 F.2d 1300 (7th Cir. 1984). *fn1" Congress's purpose in enacting legislation to remedy employment discrimination was to provide relief to the victims of discrimination while discouraging the future practice thereof. Thus, Congress vested in the courts broad powers to fashion and apply remedies to protect present and future potential victims of discriminatory conduct and to place past victims in the position they would have enjoyed absent the unlawful conduct to which they were subjected. Because these remedies are equitable, relief is to be tailored to each plaintiff's particular situation. Moreover, the plaintiff is obligated to mitigate damages by seeking comparable alternate employment through the exercise of reasonable diligence. Ford v. EEOC, Miller v. Marsh. It is the defendant's burden to prove lack of such diligence when requesting that the Court not award backpay for any period. Nord v. U.S. Steel.

 Those courts which have tolled the accrual of backpay during a plaintiff's full-time pursuit of higher education have based their decisions upon the individual's unavailability for full-time employment during that period. See, e.g., Miller v. Marsh. Conversely, those courts which have allowed the continued accrual of backpay while a plaintiff pursued an educational program did so upon finding that it was reasonable under the circumstances and/or that the plaintiff remained ready, willing and able to accept the position sought or comparable employment. Smith v. American Service Co. of Atlanta, Hanna v. A.M.C., Brady v. Thurston. It is clear, then, that there is no per se rule that backpay is tolled during periods of enrollment in an educational program. *fn2" Rather, the issue is to be determined in the context of the factual matrix existing in a particular case.

 Here, no evidence was adduced at plaintiff's deposition from which the Court can determine whether the plaintiff was unavailable for work during the time in which he was enrolled in a full-time educational program. The fact that it was full-time rather than part-time is a factor which may indicate that, in fact, he was not so available but is by no means conclusive on the issue. Consequently, we will deny this portion of defendant's motion at this time, subject to reconsideration at trial if the verdict is in favor of the plaintiff and the defendant sufficiently bears its burden of proof on the issue.

 Defendant's second basis for partial summary judgment concerns squarely the issue considered and decided by the Supreme Court in Ford v. E.E.O.C., i.e., whether a defendant's potential liability for backpay is tolled when it has made an unconditional offer of employment to the plaintiff of the job in question. In Ford, the Court held that while a plaintiff need not compromise the claim or accept a non-comparable job, the remedial purposes of Title VII and most particularly, the duty to mitigate damages, require that the defendant's liability for backpay end with such an offer. This is true even where, as here, the offer does not include retroactive seniority. The entitlement to seniority and other benefits which would have accrued had the plaintiff been hired initially are matters to be determined after litigation on the merits concludes. The plaintiff remains entitled to pursue them as remedies if he or she prevails at trial, notwithstanding the acceptance of the offered employment which did not include those benefits.

 On February 28, 1985, the defendant sent to the plaintiff a letter bearing the following message:

 
Dear Mr. Huegel:
 
This has reference to the physical examination given to you by Dr. David Sussman of February 13, 1985, as a result of our meeting concerning your EEO complaint with the U.S. Postal Service.
 
As a result of the examination, it is Dr. Sussman's opinion that you are now able to perform the duties of an LSM trainee without restrictions or accommodations. Based on this information, and in an attempt to settle your complaint, you are hereby offered the next available LSM trainee position at the Lehigh Valley facility.
 
Please advise me in writing of your decision ...

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