MEMORANDUM AND ORDER

DALE E. SAFFELS, United States District Judge.

This matter is before the court sua sponte and on plaintiff's (Doc. 73) and defendant's (Doc. 71) memorandums regarding a possible award of back pay. On February 8, 2002, the jury returned a verdict in favor of plaintiff in this case. After the verdict was accepted, the court informed the parties that the back pay award selected by the jury was only advisory. The court ordered the parties to file the instant memorandums regarding the imposition of a back pay award, and the court delayed the entry of judgment until this issue was resolved. Therefore, after consideration of the parties' arguments, the court finds plaintiff is entitled to an award of back pay as detailed below.

I. BACKGROUND

Plaintiff, a female Mexican-American, alleged her discipline and termination by defendant were the product of intentional gender and race based discrimination. On February 2, 2002, this case proceeded to trial on plaintiff's claims of intentional gender and race discrimination pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and on plaintiff's claim of denied due process pursuant to 42 U.S.C. § 1983. At the close of plaintiff's case on February 6, 2002, defendant moved for judgment as matter of law on all of plaintiff's claims. The court granted defendant's motion in regards to plaintiff's § 1983 claim. Franco v. Unified Sch. Dist. No. 437, No. 99-4167, 2002 WL 398731 (D.Kan. Feb. 26, 2002).

On February 8, 2002, the jury found that defendant had participated in intentional gender discrimination when it terminated plaintiff. The jury, however, rejected plaintiff's other claims. Although being fully instructed on its power to grant damages, the jury awarded plaintiff zero damages. The jury was specifically instructed that they could award "lost wages" or back pay. The court, therefore, finds itself confronted with an unique situation, for the jury clearly found a Title VII violation yet just as clearly found plaintiff suffered no damages. While, in a companion Memorandum and Order issued today, the court found sufficient evidence supported the jury's verdict, the court is obligated, due to the verdict, to look anew into the issue of equitable damages. Although the jury believed no back pay award was warranted, equitable damages, like back pay, fall solely within the court's province.

II. DISCUSSION A. Award of Damages

B. Mitigation of Damages

While a successful plaintiff may be entitled to an award of back pay, a plaintiff must make a reasonable and good-faith effort to mitigate such damages. Acrey v. American Sheep Indus. Ass'n, 981 F.2d 1569, 1576 (10th Cir. 1992); Spulak v. K Mart Corp., 894 F.2d 1150, 1158 (10th Cir. 1990). This mitigation usually takes the form of replacement employment. See 42 U.S.C. § 2000e-5(g)(1) (amounts earnable with reasonable diligence reduce back pay allowable). The defendant-employer bears the burden of showing a lack of reasonable diligence. Spulak, 894 F.2d at 1158. The Tenth Circuit has held that a defendant-employer may meet its burden by showing "(1) that the damage suffered by plaintiff could have been avoided, i.e. that there were suitable positions available which plaintiff could have discovered and of for which [she] was qualified; and (2) that plaintiff failed to use reasonable care and diligence in seeking such a position." EEOC v. Sandia Corp., 639 F.2d 600, 627 (10th Cir. 1980) (internal citation and quotation marks omitted). See also Ford Motor Co. v. EEOC, 458 U.S. 219, 231 (1982) (opining that a Title VII plaintiff's duty to mitigate does not require the plaintiff "go into another line of work, accept a demotion, or take a demeaning position").

Generally, the court examines the total salary lost during the appropriate recovery period, i.e. the time from the date of the defendant's illegal conduct until the date of judgment, and then reduce this amount by the actual (or contemplated) earnings compiled by the plaintiff during the recovery period. Such offset is critical to ensure the plaintiff is made whole but does not receive a windfall.

In this case, plaintiff was terminated on October 14, 1997, and she remained unemployed for approximately two and half months. No evidence was introduced regarding plaintiff's attempts at finding employment during this time. In January of 1998, however, plaintiff was hired at Payless Shoe Source as a general warehouse laborer. It is uncontested that Payless paid plaintiff a higher wage than defendant. However, plaintiff resigned from Payless after only seven days. At trial, plaintiff testified she quit because it was "too early," due to the emotional distress caused by her termination, for her to return to work. Plaintiff also testified to being "afraid" of continuing her employment. The Payless job required plaintiff to work four ten hour shifts from 6:00 a.m. to 4:30 p.m. Whereas plaintiff worked five eight hour shifts when employed with defendant.

After her resignation from Payless in January of 1998, according to the evidence offered at trial, plaintiff did not apply for another job until November of 1999. Plaintiff was hired in November for "seasonal work" at Hickory Farms. Thereafter, in January of 2000, plaintiff was hired at a retail shop named Valori's. Plaintiff concedes that since November of 1999, she has maintained employment meeting or exceeding her salary from defendant. Therefore, plaintiff seeks back pay from the date of her termination till October 31, 1999. On the other hand, defendant asserts plaintiff's voluntary resignation from Payless coupled with her alleged lack of diligence in seeking replacement employment, precludes any back pay award. The court agrees in part.

First, as to the approximately two and a half months between plaintiff's termination and employment with Payless, the court finds plaintiff is entitled to back pay. Defendant produced no evidence to satisfy its burden of demonstrating that during this time, employment opportunities were available to plaintiff but were not diligently pursued. Furthermore, the court considers two and a half months as a reasonable length of time for a person in plaintiff's situation to successfully reenter the workforce.

Second, the court finds it was unreasonable for plaintiff to voluntarily quit the Payless job and then remain unemployed for almost two years. Contrary to plaintiff's assertion, the court finds the Payless job represented comparable replacement employment. In arguing her position, plaintiff states: "[Plaintiff] had believed she was ready to return to work following her termination by [defendant], but found her self emotionally and physically unable to meet the demanding work schedule of the Payless assembly line work and the long hours it required." (Pl. Mem. at 2). Plaintiff is not arguing that the two jobs materially differed in the actual physical working requirements. Instead, the Payless job was not comparable due to its accompanying work schedule and long hours. The court rejects plaintiff's assertion. Both jobs required a forty-hour workweek. The only difference was that Payless employees completed the workweek in four days instead of five. The court finds this feature fails to adequately differentiate the jobs for purposes of comparison within this context. Simply put, having to work an additional two hours per day is not the equivalent of forcing plaintiff to "go into another line of work, accept a demotion, or take a demeaning position." Ford Motor Co., 458 U.S. at 231.

Furthermore, as mentioned above, the evidence at trial revealed plaintiff made no effort between January of 1998 and November of 1999 to secure replacement employment. Plaintiff did testify she had applied for other jobs, yet plaintiff could not describe with any detail with whom she had sought employment. After hearing plaintiff's testimony and reviewing the evidence admitted at trial, the court is convinced plaintiff did not seek employment during this twenty-two month period. While defendant bears the burden in this analysis, the court is hesitant to find it must come forward with evidence of available jobs when the available evidence demonstrates plaintiff's complete failure to mitigate her damages. See Hillman v. United States Postal Serv., No. 97-4041, 2000 WL 1863363, at *11 (D.Kan. Oct. 11, 2000) ("Where, however, a claimant `makes little or no effort to obtain any type of employment, the court does not need to consider in the abstract whether or not a suitable position for which the plaintiff is qualified might have been offered to the discriminatee if he or she had made the necessary effort to find it.'") (quoting Logan v. Pena, No. 91-2389, 1993 WL 62316, at *3 (D. Kan. Feb. 9, 1993)). See also Johnston v. Harris County Flood Control Dist., 869 F.2d 1565, 1579 n. 3 (5th Cir. 1989). In sum, the court finds plaintiff unreasonably resigned from comparable replacement employment and then failed to diligently seek further employment for nearly two years. Such findings force the court to conclude plaintiff did not properly mitigate her damages as required by Title VII. For this reason, no back pay shall be awarded after January of 1998. Plaintiff will be awarded $3,458.92 in back pay.

C. Prejudgment Interest

D. Improper Filings

Also before the court are three filings entered by the parties: (1) defendant's Supplemental Brief in Opposition to Plaintiff's Request for Back Pay Award under Jury Verdict (Doc. 74); (2) plaintiff's Reply to Defendant's Supplemental Regarding Back Pay (Doc. 75); and defendant's Motion to Strike Plaintiff's Reply to Defendant's Supplemental Regarding Back Pay (Doc. 76). The court finds all three filings improper. As mentioned above, after the jury was excused in this case, the court ordered the parties to file simultaneous briefs on the issue of back pay. While defendant's "supplemental" may have been filed within the deadline, the court's instructions clearly ordered the parties to file a single brief. As such, defendant's "supplemental" was filed without leave and was not considered by the court. Furthermore, plaintiff's "reply" was also filed without leave and was not considered. Finally, defendant's "motion to strike" is moot and will be denied.

IT IS THEREFORE BY THIS COURT ORDERED that plaintiff shall be awarded $3,458.92 in back pay, subject to prejudgment interest to be determined based on additional submissions. Plaintiff shall file prejudgment interest calculations by April 24, 2002. Defendant shall file any written objection to the calculations by May 8, 2002. The court will enter final judgment upon consideration of the additional submissions.

IT IS FURTHER ORDERED BY THIS COURT that defendant's Motion to Strike Plaintiff's Reply to Defendant's Supplemental Regarding Back Pay (Doc. 76) is denied as moot.