In Villacorta v. Cemex Cement, Inc., ___ Cal.App.4th ___ (Dec. 11, 2013), the California Court of Appeal (Fourth Appellate District, Division Two) affirmed the San Bernardino County Superior Court court’s order denying Defendant’s motion for a new trial and motion for judgment notwithstanding the verdict.

Plaintiff sued his former for wrongful termination, intentional infliction of emotional distress and national origin discrimination and won at trial.  During trial, Plaintiff’s attorney asserted that Plaintiff had lost $44,000 during eight months that he was unemployed before finding another job at a company that was two to three hours away. The jury, however, awarded Plaintiff $198,000 (roughly three years of pay) in lost wages.  Defendant filed its motions on the ground that substantial evidence did not support the jury’s award.  The trial court denied both motions.

The appellate court affirmed, finding that a jury could reasonably conclude that Plaintiff’s wages from his new job should not be considered when awarding damages because it was not comparable or substantially similar to the job he had with Defendant.  If a defendant employer argues that a plaintiff’s lost wages were mitigated because he found other work, the employer must show that the new employment is comparable, or substantially similar, to that of which the employee lost.  If the new job is different or inferior, then the wages from that job may not be used to mitigate damages. If they were used then it would result “in senselessly penalizing an employee who, either because of an honest desire to work or a lack of financial resources, is willing to take whatever employment he can find.”