No

table of AUTHORITIES............................................................................ iii

statement of INTEREST......................................................................... 1

statement of THE issue........................................................................ 2

statement of the case......................................................................... 2

A. Statement of the Facts.......................................................................... 2

B. Proceedings Below............................................................................... 3

argument.................................................................................................... 8

Where a company has violated the ADA by discharging a worker because of her disability, the victim’s failure to mitigate back pay has no bearing on whether a district court has the statutory discretion to order the company to reinstate her... 8

conclusion............................................................................................... 19

CERTIFICATE OF BAR MEMBERSHIP...................................................... 20

certificate of compliance............................................................... 20

CERTIFICATE OF IDENTICALLY FILED BRIEFS.................................... 21

CERTIFICATE OF VIRUS CHECK.............................................................. 21

certificate of service

TABLE OF AUTHORITIES

FEDERAL CASES

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)................................. 8, 17

Blum v. Whitco Chemical Corp., 829 F.2d 367 (3d Cir. 1987).................... 9, 13

Booker v. Taylor Milk Co., Inc., 64 F.3d 860 (3d Cir. 1995)............... 10, 16–17

Brunnemann v. Terra International, Inc., 975 F.2d 175 (5th Cir. 1992).... 10, 16

Caufield v. Center Area School District, 133 Fed. Appx. 4 (3d Cir. 2005)...... 12

Dilley v. SuperValu, Inc., 296 F.3d 958 (10th Cir. 2002)............................ 6, 15

Donlin v. Philips Lighting North America Corp., 581 F.3d 73 (3d Cir. 2009). 10

Ellis v. Ringgold School District, 832 F.2d 27 (3d Cir. 1987).................... 10, 17

Eshelman v. Agere System, Inc., 554 F.3d 426 (3d Cir. 2009)........................... 8

Farley v. Nationwide Mutual Insurance Co., 197 F.3d 1322 (11th Cir. 1999). 14

Feldman v. Philadelphia Housing Authority, 43 F.3d 823 (3d Cir. 1994)......... 9

Ford Motor Co. v. EEOC, 458 U.S. 219 (1982).................................. 11, 13, 19

Jackson v. City of Albuquerque, 890 F.2d 225 (10th Cir. 1989)...................... 14

Maxfield v. Sinclair International, 766 F.2d 788 (3d Cir. 1985)...................... 11

McKnight v. General Motors Corp., 973 F.2d 1366 (7th Cir. 1992)................ 18

Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843 (2001).................... 13

Quint v. A.E. Staley Manufacturing Co., 172 F.3d 1 (1st Cir. 1999)............... 16

Spencer v. Wal-Mart Stores, Inc., 469 F.3d 311 (3d Cir. 2006)....................... 10

Squires v. Bonser, 54 F.3d 168 (3d Cir. 1995)............................................ 9, 14

Starceski v. Westinghouse Electric Corp., 54 F.3d 1089 (3d Cir. 1995)............. 9

FEDERAL STATUTES AND RULES

Americans with Disabilities Act of 1990

...... 42 U.S.C. § 12102..................................................................................... 4

...... 42 U.S.C. § 12111(8)................................................................................. 4

...... 42 U.S.C. § 12112(5)(A)........................................................................... 4

...... 42 U.S.C. § 12117................................................................................. 1, 8

...... 42 U.S.C. § 12206..................................................................................... 8

Title VII, Civil Rights Act of 1964

...... 42 U.S.C. § 2000e-5(g)(1).............................................................. 8, 11, 15

Age Discrimination in Employment Act of 1967

...... 29 U.S.C. § 626(b)..................................................................................... 9

Fed. R. App. P. 29(a)........................................................................................ 1

statement of INTEREST

The U.S. Equal Employment Opportunity Commission interprets and enforces various federal employment anti-discrimination laws, including Title I of the Americans with Disabilities Act of 1990 (“ADA”), which prohibits employment discrimination based on disability. See 42 U.S.C. §§ 12117, 12206. In this case, a jury found that Appellant/Appellee Ethicon Inc. had violated the ADA by discharging former employee Theresa Ellis because of her disability. The district court then ordered Ethicon to reinstate Ellis to her former position at Ethicon. Ethicon argues on appeal (as it did below) that the district court lacked authority to make Ethicon give Ellis her old job back because, after working in a comparable position for a few years, Ellis failed to try to find a second comparable position.

The statutes the EEOC enforces give district courts broad discretion to craft appropriate equitable relief to make discrimination victims “whole” again. That authority includes the power to order a company that has violated the law to restore a former employee to the position the victim was working in before the discrimination occurred. The Commission has a compelling interest in safeguarding this equitable power that civil rights statutes confer on district courts, and in preserving reinstatement as a remedy for employees who have been terminated illegally. We therefore offer our views to the Court. See Fed. R. App. P. 29(a).

statement of THE issue [1]

If a company violates federal law by discharging a worker because of her disability, a district court can help make this victim “whole” by ordering the company to give her her job back. Where the victim is willing and able to return to her former position, does her failure to look for other work in the meantime restrict the district court’s broad statutory discretion to order reinstatement?

statement of the case

A. Statement of the Facts

Ellis started working at Ethicon in September 1997 as a Senior Quality Assurance Engineer. R.104 (order denying judgment as a matter of law) at 2. In January 1999, she got into a car accident on her way to work. Id. Ellis took a short-term disability leave to recuperate, but returned to Ethicon and worked without any restrictions from September 1999 until April 2001. Id.

In April 2001, Ellis began experiencing dizziness, pain, and an inability to concentrate. R.104 at 2. Her doctor diagnosed her with post-concussion syndrome and a mild traumatic brain injury resulting from the 1999 car accident. Id. Ellis then went out on a second short-term disability leave. Id.

About five months later, Ellis’s doctor informed Ethicon that Ellis should be working three days a week from home, and that Ethicon should provide a job coach to help her successfully return to work. R.104 at 3. Ethicon determined that it could not accept these recommendations. Id. When Ellis’s second short-term disability leave ended in October 2001, she was enrolled in the company’s long-term disability program. Id. at 4. This “effectively terminated Ellis.” Id.

Soon after Ethicon discharged her, Ellis went to work at another company named Aventis, doing similar engineering work. She worked at Aventis from December 2001 to August 2004, without any accommodation except for a five-month short-term disability leave. After August 2004, Ellis did not seek comparable employment elsewhere. R.104 at 37–38.

B. Proceedings Below

Ellis sued Ethicon for discriminating against her on the basis of her disability in violation of the ADA. R.1. The parties tried the case for almost two weeks before a jury. R.73–R.90. The jury ultimately found that Ethicon had violated the ADA and, in an advisory verdict, recommended that Ethicon pay Ellis significant monetary damages. R.90.

In special verdict interrogatories, the jury found that Ellis had proved that in October 2001 she was substantially limited in the major life activity of cognitive function, and therefore was an individual with a disability within the meaning of the ADA. R. 90 at 1; R.104 at 5; see 42 U.S.C. § 12102 (defining “disability”). The jury also found that Ellis was qualified to perform the essential functions of her job as a quality engineer at Ethicon, with or without reasonable accommodations. R.90 at 1; R.104 at 5; see 42 U.S.C. § 12111(8) (defining “qualified individual”). The jury further found that Ethicon had failed to provide Ellis with a reasonable accommodation for her disability, and that doing so would not have been an undue hardship to Ellis. R.90 at 2; R.104 at 5; see 42 U.S.C. § 12112(5)(A) (explaining that an employer commits unlawful discrimination in violation of the ADA if it fails to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability . . . unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of [its] business”). The jury also implicitly concluded that Ethicon’s failure to reasonably accommodate Ellis had caused her termination. R.90 at 5.

Given its finding that Ethicon was liable for violating the ADA by terminating Ellis unlawfully, the jury then recommended an award of between $311,200 and $486,250 in back pay – i.e., wages Ellis would have earned between October 2001 and the time of the verdict if Ethicon had not discharged her. R.90 at 5. However, the jury also found that after Ethicon discharged her, Ellis failed to mitigate her monetary damages (presumably, by failing to look for work after leaving Aventis in 2004). Id. Finally, the jury found that Ellis was able to work with or without reasonable accommodations. Id. at 6.

Ethicon moved for judgment as a matter of law under Federal Rule of Civil Procedure 50(b), or in the alternative for a new trial under Federal Rule of Civil Procedure 59(a). R.94. The district court denied both motions. R.104 at 54.

The district court also ordered Ethicon to pay Ellis back pay. The court did an “independent appraisal” of the amount due. R.104 at 44. It noted that ordinarily in a discriminatory-discharge case like this one, courts calculate back pay from the date of the unlawful termination through judgment. Id. at 40. Here, however, the district court agreed with the jury’s assessment that Ellis had not fully mitigated her lost wages. It determined that Ellis’s failure to continue looking for work after she left Aventis in 2004 should reduce the amount of back pay Ethicon would be required to repay. Id. at 36–40. The district court calculated the appropriate amount of back pay to be roughly $42,400. Id. at 45. (After adding prejudgment interest, the district court later increased this amount to $53,731.31. R.112 at 15–16.)

The district court then ordered Ethicon to reinstate Ellis, the remedy Ellis had requested. The district court rejected Ethicon’s argument that Ellis’s failure to mitigate “forecloses” reinstatement. R. 98 at 33; R.104 at 50–51. Ethicon had contended that “[n]either front pay nor reinstatement is appropriate where, as here, the plaintiff’s failure to mitigate cuts off back pay.” R.104 at 35. The district court disagreed. Citing the decision by the Tenth Circuit in Dilley v. SuperValu, Inc., 296 F.3d 958, 967 (2002), the district court concluded that while it may be relevant to the appropriate amount of back or front pay owed a prevailing plaintiff, a failure to mitigate “does not bear on a plaintiff’s entitlement to reinstatement[.]” R.104 at 50–51.

The district court found that “reinstatement is the most appropriate remedy under the circumstances of this case.” R.104 at 51. As support, the district court pointed to the jury’s finding that Ellis is still able to work. The district court also cited testimony by Ellis’s doctor establishing that “reemployment at Ethicon would provide Ellis the best opportunity to work again.” Id. at 52. Ellis’s doctor had testified that Ellis “‘wants to work’” and would “‘love to go back to Ethicon [and] the job that she loved.’” Id. The district court also noted testimony from Ellis’s former supervisor, who had stated “‘up until the time [she] went out on disability, her performance was always exemplary’” and that she had been “‘a very solid performer, well-regarded, [and] well-respected . . . .’” Id. at 54. The district court emphasized that “Ellis stated that she is capable of working and that returning to Ethicon would be the best opportunity for her to succeed.” Id. at 42. Accordingly, the district court ordered Ethicon to “reinstate Ellis’[s] employment at Ethicon as a quality engineer, or a comparable position.” Id. at 54; R.103 at 2.

Ethicon and Ellis both appealed. R.114; R.170. Ethicon then asked the district court to stay the judgment – including the order requiring reinstatement – pending its appeal. R.125. On September 21, 2010, the district court denied Ethicon’s request to stay Ellis’s reinstatement. R.135 at 12.

In doing so, the district court rejected Ethicon’s contention that Ellis “may not be qualified to work any position at Ethicon due to her five-year absence from the workforce.” R.135 at 11. The district court determined that it “would be a grave injustice for Ethicon to violate the ADA and subsequently preclude Plaintiff from working by claiming that Plaintiff is not qualified” since “reinstatement precisely rectifies this type of violation.” Id.

The district court also emphasized its broad discretion to fulfill the ADA’s statutory purposes by fashioning appropriate equitable relief to make victims of disability discrimination “whole,” and it concluded that a stay of reinstatement here would be against the public interest. Id. at 12. According to the district court, “allowing an employer to delay the implementation of equitable relief would discourage future litigants, less resolute than Plaintiff, from seeking redress for what they believe is illegal employment discrimination.” The district court determined that “the public interest is undoubtedly better served by Plaintiff’s reinstatement to a position she lost due to Defendant’s unlawful disability discrimination.” Id.

In spite of the district court’s order denying a stay, Ethicon has not yet complied with the court’s reinstatement order.

argument

The district court correctly held that Ellis’s failure to fully mitigate her money damages is irrelevant to whether it had the authority to order Ethicon to reinstate her. Ethicon’s contrary view reflects a misunderstanding of the basic differences between monetary relief and reinstatement, and of the very rationale for reinstatement as an equitable remedy. It also arguably conflicts with the text of the anti-discrimination statutes. Further, adopting Ethicon’s position on this issue would inappropriately curtail the statutory discretion given to district courts to decide on a case-by-case basis whether reinstatement is appropriate. This Court thus should affirm the district court’s ruling on this issue.

1. Employers who violate federal anti-discrimination laws like the ADA must make their victims “whole.” See, e.g., Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975) (explaining that “[t]he injured party is to be placed, as near as may be, in the situation he would have occupied if the wrong had not been committed”) (internal quotation marks omitted); see also Eshelman v. Agere Sys., Inc., 554 F.3d 426, 440 (3d Cir. 2009) (noting the goal is to “restore the employee to the economic status quo that would exist but for the employer’s conduct”) (internal quotation marks omitted). These laws thus give district courts wide latitude to fashion appropriate equitable relief. See 42 U.S.C. § 12117(a) (incorporating the remedies from Title VII of the Civil Rights Act of 1964 into the ADA); 42 U.S.C. § 2000e-5(g)(1) (Title VII) (allowing “any . . . equitable relief as the court deems appropriate”) (emphasis added); see also 29 U.S.C. § 626(b) (Age Discrimination in Employment Act) (providing that courts “shall have jurisdiction to grant such legal or equitable relief as may be appropriate”).

In a discriminatory-discharge case like this one, the company’s unlawful act causes a worker to lose a unique employment opportunity. Accordingly, in these cases courts typically require the offending employer to give the victim her job back – to reinstate her to her former (or an equivalent) position. As this Court has repeatedly recognized, reinstatement is the “preferred” equitable remedy. See, e.g., Squires v. Bonser, 54 F.3d 168, 172 (3d Cir. 1995) (noting the “presumption” or “preference” in favor of reinstatement in Title VII cases); Blum v. Whitco Chem. Corp., 829 F.2d 367, 373 (3d Cir. 1987) (stating that “back pay coupled with reinstatement is the preferred remedy to avoid future damages in ADEA cases”).

The district court’s decision to order reinstatement is reviewed only for an abuse of discretion. See Feldman v. Phila. Hous. Auth., 43 F.3d 823, 832 (3d Cir. 1994) (“Guided by the particular circumstances of a case, the district court has broad discretion in determining whether reinstatement is appropriate, and its determination is reviewed under an abuse-of-discretion standard.”); Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1103 (3d Cir. 1995) (explaining that district courts are in the best position “‘to determine whether or not reinstatement was feasible based on the testimony and evidence at trial’”) (quoting Brunnemann v. Terra Int’l, Inc., 975 F.2d 175, 180 (5th Cir. 1992)).

2. Even if a court orders reinstatement, the victim may have suffered other damages that can only be remedied monetarily. For example, from the time the company unlawfully discharges the worker until it reinstates her, the victim may not have been able to earn as much in wages or benefits at a new job as she was earning at her old job. Thus, appropriate equitable relief routinely includes an award of back pay to allow the victim to recoup these purely monetary losses incurred through the date of judgment. See, e.g., Spencer v. Wal-Mart Stores, Inc., 469 F.3d 311, 315 (3d Cir. 2006); Booker v. Taylor Milk Co., Inc., 64 F.3d 860, 866–67 (3d Cir. 1995).

Further, reinstatement itself is not always feasible. This Court has recognized that reinstatement may be inappropriate where “there is a likelihood of continuing disharmony between the parties” or “no comparable position exists.” Donlin v. Philips Lighting N. Am. Corp., 581 F.3d 73, 86 (3d Cir. 2009); see also Ellis v. Ringgold Sch. Dist., 832 F.2d 27, 30 (3d Cir. 1987) (noting “the court may deny reinstatement to a plaintiff when, for example, animosity between the parties makes such a remedy impracticable”). Then – and typically only then – a court may award front pay in lieu of reinstatement. See Donlin, 581 F.3d at 86 (explaining that “courts may award front pay where a victim of employment discrimination will experience a loss of future earnings because she cannot be placed in the position she was unlawfully denied”); Maxfield v. Sinclair Int’l, 766 F.2d 788, 796 (3d Cir. 1985) (explaining that reinstatement is the “preferred remedy to avoid future lost earnings” and front pay is merely “an alternate remedy” to be invoked when reinstatement is not feasible).

3. While laws like the ADA require make-whole relief, they also expect discrimination victims to mitigate their money damages. Back and front pay are monetary awards designed to make a prevailing plaintiff whole monetarily. Since money is fungible, the plaintiff can mitigate this type of loss if she can secure wages and benefits from equivalent employment elsewhere.

Therefore, Title VII (and thus the ADA by incorporation) provides that “[i]nterim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.” 42 U.S.C. § 2000e-5(g)(1); see also Ford Motor Co. v. EEOC, 458 U.S. 219, 231 & n.15 (1982) (“This duty [to mitigate], rooted in an ancient principle of law, requires the claimant to use reasonable diligence in finding other suitable employment.”) (interpreting 42 U.S.C. § 2000e-5(g)(1)). Similarly, this Court has indicated that a failure to mitigate ordinarily would affect an award of front pay, as well. See Caufield v. Ctr. Area Sch. Dist., 133 F. App’x 4, *11 (3d Cir. 2005) (“When an employer successfully proves a failure to mitigate, any back-pay award to an aggrieved employee will be cut off or reduced beginning at the time of the employee’s failure to mitigate and any front-pay award will be foreclosed.”).

Here, Ellis partially mitigated her back-pay damages by getting another job at Aventis. The district court found that Ellis failed to mitigate after that, and thus refused to award her additional back pay through the date of judgment.

4. Ethicon asserts that since Ellis failed to fully mitigate her money damages, she is categorically ineligible for reinstatement, as well. Ethicon misapprehends the very purpose of reinstatement as a form of equitable relief in employment discrimination cases. And reversal on this issue would unduly constrict district courts’ statutory remedial powers.

While front pay is sometimes an acceptable substitute for reinstatement (and both are designed to account for future damages), the two are qualitatively different forms of equitable relief. Reinstatement is in-kind, while front pay is purely monetary. See, e.g., Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 853 n.3 (2001) (“‘A front pay . . . award is the monetary equivalent of the equitable remedy of reinstatement.’”) (quoting Blum, 829 F.2d at 383). The former offers restoration of a lost employment opportunity, while the latter provides compensation for wages that will be forfeited due to the inability to restore the victim to the lost position.

These fundamental differences lie at the heart of why a failure to mitigate is pertinent to front pay but irrelevant to reinstatement. Where a victim of discrimination has voluntarily withdrawn from the workforce (for reasons wholly unrelated to the discrimination), it may make sense for a district court to decide that the worker should not get a windfall with a monetary award of front pay. Cf. Ford Motor Co., 458 U.S. at 229 (reasoning that in some respects paying monetary damages “is like paying an extra worker who never came to work”). But where a victim such as Ellis remains willing and able to return to the job from which she was discriminatorily ejected, it is a non-sequitur to deprive her of that previously-held position simply because she may have failed to find employment elsewhere.

Positions at different employers, even when they are “equivalent” in wages and benefits, are rarely fungible in the sense that money is. A discriminatorily-discharged employee cannot reinstate herself (without her employer’s approval), and even if she obtains an “equivalent” position with another employer, she continues to be deprived – unlawfully – of the job she had with the defendant. The new job rarely will provide her with the same employment opportunities (e.g., work environment, promotional chances, clients or customers) she had before the discrimination. If she worked for the defendant for a substantial period, for example, she will often have had an established network of colleagues and friends and/or institutional knowledge and credibility that she will not have at the new employer. These intangibles are often irreplaceable.

Reinstatement is the preferred remedy in a discriminatory-discharge case for precisely this reason. As this Court (and other courts) have recognized, reinstatement gives the plaintiff back the specific job that the employer unlawfully took away from her, and thus makes her whole in a way that front pay never could. See Squires, 54 F.3d at 172–73 (“Reinstatement advances the policy goals of make-whole relief and deterrence in a way which money damages cannot.”); see also Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1338 (11th Cir. 1999) (explaining that “except in extraordinary cases” reinstatement is “required” because it “offers the most likely means of making a plaintiff whole by allowing her to continue her career as if the discrimination had not occurred”) (ADA and ADEA); Jackson v. City of Albuquerque, 890 F.2d 225, 232 (10th Cir. 1989) (“‘When a person loses his job, it is at best disingenuous to say that money damages can suffice to make that person whole. The psychological benefits of work are intangible, yet they are real and cannot be ignored.’”) (citation omitted) (Title VII).

Accordingly, as the Tenth Circuit correctly held in Dilley v. SuperValu, Inc., 296 F.3d 958, 967 (2002), “there is no logical link between a plaintiff’s pursuit of alternative employment and whether he should be reinstated to the position from which he was wrongfully discharged.” The Court reasoned that “[a] plaintiff’s ability to replace some of the income lost by virtue of the wrongful discharge certainly affects how much lost income he is due, but it does not bear on whether the plaintiff is entitled to the job itself.” Id.

This holding, which the district court relied on in this case, is consistent with the plain language of Title VII itself. The statute authorizes district courts to order “reinstatement . . . with or without back pay . . . .” 42 U.S.C. § 2000e-5(g)(1). Thus, Congress specifically provided for reinstatement and back pay as possible remedies in the same sentence. In the very next sentence, the statute states that a failure-to-mitigate “shall” require a reduction in the amount of back pay owed. See id. (stating “amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable”) (emphasis added). But this second sentence is silent about the effect of a failure to mitigate on reinstatement. If, as Ethicon argues, Congress had intended for a victim’s lack of diligence to preclude reinstatement as well as back pay, it would presumably have said so.

More important, the act expressly authorizes a district court to order reinstatement “without” awarding any back pay at all. The statutory language thus allows a district court to find that even though back pay is unwarranted – often, presumably, because the plaintiff failed to mitigate her damages – reinstatement is still appropriate. The Tenth Circuit’s holding in Dilley is in accord. And other circuits likewise have recognized that reinstatement may be required even though back pay has been reduced for a failure to mitigate (as it was by the district court in this case). See, e.g., Quint v. A.E. Staley Mfg. Co., 172 F.3d 1, 15–21 (1st Cir. 1999) (affirming back-pay award reduced for failure to mitigate, but remanding for district court to consider ordering reinstatement); Brunnemann, 975 F.2d at 178–80 (ordering district court to reduce plaintiff’s back-pay award by the amount he earned at another employer, but affirming order reinstating him).

While this Court has not squarely addressed this issue before, the Dilley holding also finds some support in this Court’s holding in Booker. The employer in Booker maintained that the plaintiff’s failure to mitigate immunized it from any liability for back pay. See 64 F.3d at 867. This Court rejected that argument, holding that the plaintiff’s failure to mitigate was grounds for reducing the employer’s back-pay liability, but could not immunize the employer completely from any liability for back pay where back pay was necessary to make the victim whole. Id. at 867. This Court emphasized that back pay should only be denied altogether if the court is certain that doing so “‘would not frustrate the central statutory purposes of [Title VII].’” Id. at 866–67 (quoting Albemarle Paper Co., 422 U.S. at 421). Similarly here, a prevailing plaintiff’s failure to mitigate cannot immunize the employer from reinstatement where, as the district court found here, reinstatement is necessary to make the employee whole and further the ADA’s purposes.

There may be extreme cases in which the plaintiff’s total failure to mitigate damages amounts to abandonment of her profession. And abandonment of the profession may be one of the factors that a district court could, in its discretion, rely on in deciding to deny reinstatement. But cf. Ringgold, 832 F.2d at 29–30 (“Standing alone, the fact that a plaintiff takes a job in an unrelated field to meet her obligation of mitigation should not be construed as a voluntary withdrawal from her former profession” lest a plaintiff “be put in the intolerable position of choosing between foregoing a source of earnings during the interim before trial or risking an adverse finding on abandonment of her profession.”). But Ellis did not abandon her profession here; for part of the period after the discrimination occurred, she continued to work as a quality engineer at Aventis. And we are aware of no court of appeals opinion affirming a district court decision denying reinstatement because the plaintiff had “abandoned her profession” by failing to seek work at some point.

Nor has Ethicon cited any. It relies in part on a decision by the Seventh Circuit in McKnight v. General Motors Corp., 973 F.2d 1366 (1992), to suggest that a victim cannot “‘just leave the labor force after being wrongfully discharged in the hope of someday being made whole by a judgment at law.’” Ethicon Appeal Br. at 61–62 (quoting McKnight, 973 F.2d at 1372). There, the Seventh Circuit affirmed a district court’s decision denying reinstatement. And there, unlike here, the victim had changed professions entirely and was earning more in his new profession than he had earned in his old one. Further, the Seventh Circuit there noted that “the sting of discrimination had ended by the time of trial.” 973 F.2d at 1372. The district court in this case clearly found otherwise. McKnight is thus readily distinguishable.

In addition to lacking support in the text of the statutes and case law, Ethicon’s argument – that a failure to mitigate “forecloses” a victim’s right to reinstatement – would significantly constrict a district court’s discretion to craft remedies on a case-by-case basis. Yet nothing about this case cries out for creating such a new categorical legal rule.

As the Supreme Court has noted, the employment discrimination statutes seek “to compensate victims for their injuries” and “victims of job discrimination want jobs.” Ford Motor Co., 458 U.S. at 230. Ellis wants to return to work at Ethicon; indeed, she has been trying to do so for almost a decade. Her doctor testified that going back to work there represents her best chance to once again become a productive member of the workforce. Her former supervisor testified that she had been an “exemplary” employee when she worked for Ethicon before, and she apparently still can perform the essential functions of her old job (with or without reasonable accommodations). Openings for that job (or an equivalent position) exist at Ethicon.

The district court looked at this and all the record evidence and determined, in its discretion, that reinstatement was the most appropriate remedy here. On these facts, it is difficult to see how Ellis has met its burden to show that the district court abused its discretion in doing so.

CONCLUSION

For the foregoing reasons, the district court’s ruling requiring Ethicon to reinstate Ellis should be affirmed.

[1] We take no position with respect to any other issue presented in this appeal.