Refuerzo v. Southwest Airlines Co.

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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
RORESTE REFUERZO, et al.,
Plaintiffs,
v.
SOUTHWEST AIRLINES CO.,
Defendant.
Case No. 22-cv-00868-JSC
ORDER RE: PLAINTIFFS’ MOTION
FOR PARTIAL SUMMARY
JUDGMENT AND PLAINTIFFS’
MOTION TO EXCLUDE REBUTTAL
EXPERT REPORT
Re: Dkt. Nos. 172, 173
Plaintiffs, on behalf of themselves and three certified classes, allege Defendant violated the
Family and Medical Leave Act (“FMLA”) and California’s Family Rights Act (“CFRA”) by
deeming employees ineligible for disciplinary forgiveness if they used protected leave. Before the
Court are Plaintiffs’ motion to exclude Defendant’s rebuttal expert report and Plaintiffs’ motion
for partial summary judgment on Defendant’s failure-to-mitigate-damages affirmative defense.
(Dkt. Nos. 172, 173.)1 For the reasons set forth below, the Court grants in part and denies in part
Plaintiffs’ motion to exclude Defendant’s rebuttal expert report and excludes the portions of Mr.
Volk’s report that address class members’ failure to mitigate damages. The Court denies
Plaintiffs’ motion for partial summary judgment because, drawing inferences in Defendant’s
favor, the sheer number of flight attendant job openings, coupled with class members’ testimony
they saw or obtained similar flight attendant positions, permits an inference there were
substantially equivalent jobs which Plaintiffs could have obtained.
//
//
1 Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the
ECF-generated page numbers at the top of the documents.
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BACKGROUND
A. The Second Amended Complaint and Plaintiffs’ Requested Relief
Plaintiffs’ Second Amended Complaint (“SAC”) alleges five class-based causes of action:
(1) “Interference in Violation of the [Family and Medical Leave Act (‘FMLA’)],” based on 29
U.S.C. § 2615(a)(1); (2) “Discrimination and Retaliation in Violation of the FMLA,” based on 29
U.S.C §§ 2615(a)(1) and (2); (3) “Discrimination and Retaliation in Violation of [ California’s
Family Rights Act [‘CFRA’],” based on Cal. Gov. Code § 12945.2(1); (4) Wrongful termination;
and (5) Unfair Competition. (Dkt. No. 84 ¶¶ 59-89.) The first two causes of action are brought on
behalf of nationwide classes, and the other three are brought on behalf of California sub-classes.
(Id.) The Court granted Plaintiffs’ motion for class certification, in part, certifying three classes.
(Dkt. No. 106.) Then, on May 18, 2026, the Court denied Defendant’s motion for decertification
and granted Plaintiffs leave to file a motion to substitute a new or additional (b)(2) class
representative. (Dkt. No. 197.)
Plaintiffs request several remedies under the FMLA. As relevant here, Plaintiffs request
“the recovery of back pay, front pay, injunctive relief, compensatory damages, special damages,
general damages,” and “offers of restatement” under the FMLA and FMLA regulations. (Dkt. No.
84 ¶ 100.) The FMLA provides “[a]ny employer who violates section 2615 of this title,” i.e., the
FMLA’s prohibition on interference, discrimination, and retaliation,
shall be liable to any eligible employee affected—
(A) for damages equal to—
(i) the amount of—
(I) any wages, salary, employment benefits, or other
compensation denied or lost to such employee by
reason of the violation; or
(II) in a case in which wages, salary, employment
benefits, or other compensation have not been denied
or lost to the employee, any actual monetary losses
sustained by the employee as a direct result of the
violation, such as the cost of providing care, up to a
sum equal to 12 weeks (or 26 weeks, in a case
involving leave under section 2612(a)(3) of this title)
of wages or salary for the employee;
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[…]
(B) for such equitable relief as may be appropriate, including
employment, reinstatement, and promotion.
29 U.S.C. § 2617(a)(1)(A)-(B). Similarly, FMLA regulations provide:
Any violations of the Act or of these regulations constitute interfering
with, restraining, or denying the exercise of rights provided by the
Act. An employer may be liable for compensation and benefits lost
by reason of the violation, for other actual monetary losses sustained
as a direct result of the violation, and for appropriate equitable or
other relief, including employment, reinstatement, promotion, or any
other relief tailored to the harm suffered.
29 C.F.R. § 825.220(b). Plaintiffs request the same remedies under the CFRA. (Dkt. No. 84 ¶
101) (requesting “restatement, as well as the recovery of back pay, front pay, injunctive relief,
compensatory damages, special damages, [and] general damages[.]”)
B. The Parties’ Expert Reports
To understand the parties’ experts’ opinions, one must understand front pay and back pay.
“Front pay is ‘money awarded for lost compensation during the period between judgment and
reinstatement or in lieu of reinstatement.’” Traxler v. Multonmah Cnty., 596 F.3d 1007, 1009 n.1
(9th Cir. 2010) (quoting Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 846 (2001)).
By contrast, back pay typically measures an employee’s lost compensation up “to the date of
judgment.” See Odima v. Westin Tucson Hotel, 53 F.3d 1484, 1495–96 (9th Cir. 1995). Either
award may be reduced or denied if the employee “failed to mitigate [their] damages,” which
requires the employer to prove “during the time in question there were substantially equivalent
jobs available, which [the employee] could have obtained and that [the employee] failed to use
reasonable diligence in seeking one.” Id. at 1497 (cleaned up) (applying that standard to a back
pay award); see E.E.O.C. v. Pape Lift, Inc., 115 F.3d 676, 682–83 (9th Cir. 1997) (addressing
front pay).
Plaintiffs disclosed their expert, Dr. Jeffrey Petersen, and his report on January 16, 2026.
(Dkt. No. 172-1 ¶ 2.) Dr. Petersen’s report proposed a methodology “to assess the economic
damages of the class members who were terminated by Defendant.” (Dkt. No. 172-2 ¶ 1.) The
methodology was to add class members’ “past income loss and future income loss.” (Id. ¶ 6.) As
relevant here, for past and future losses, Dr. Petersen’s methodology added the value of lost
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wages, health insurance, and employer-provided retirement and savings. (Id. ¶¶ 12-20.) Dr.
Petersen then subtracted “mitigating wages,” i.e., “[i]ncome that was earned after termination.”
(Id.) Past income losses were calculated “from the date of termination to the trial date,” (id. ¶ 7),
which measures back pay. See, e.g., Odima, 53 F.3d at 1495–96. Future losses were measured
from trial to the end of “three alternative catch up periods,” i.e., the date when projected earnings
become equal to mitigating wages. (Id. ¶¶ 7, 19.) So, future losses encompass some lost
compensation incurred after judgment, which is relevant to a front-pay award. See Traxler, 596
F.3d at 1009 n.1. Dr. Petersen set forth each class member’s damages in tables accompanying the
report, but Plaintiffs did not attach the tables to their motion to exclude. (Id. ¶ 21; see generally
Dkt. No. 172.)
Aside from defining “mitigating wages” as “[i]ncome that was earned after termination,”
Dr. Petersen’s report does not reference any class member’s efforts to find new employment or
otherwise mitigate losses. (See generally Dkt. No. 172-2.) At his deposition, however, Dr.
Petersen was asked about how a class member’s job search would affect his damages calculations.
Q Now does [class members’] effort in terms of how they search for
jobs affect the catch up period or their future loss?
A It -- of course it would affect it, and that would be shown in the
earnings that they have. If someone made no effort and never got a
job or they made an incredible effort and they were not able to find
employment, you would see zeros there. But the -- the benefit of this
being a -- a class action is that those should cancel each other out,
such that, on average, you would see reasonable efforts being made
due to the large sample size we have of claims being made, such that
an individual analysis of effort does not seem to be needed based upon
my analysis in this matter.
(Dkt. No. 185-4 at 8:13-25.) So, if a class member obtained a job after termination, Dr. Petersen’s
report subtracted their actual earnings, called “mitigating wages,” from lost income. (See id. at
8:13-25; Dkt. No. 172-2 ¶¶ 12-20.) But Dr. Petersen’s report does not discuss the new job, a class
member’s efforts in finding the job, or any other facts relevant to a terminated employee’s legal
duty to mitigate damages.
Defendant submitted Mr. Volk’s report on February 16, 2026, the due date for rebuttal
expert disclosures. (Dkt. No. 172-1 ¶ 3.) The report is titled “EXPERT REBUTTAL REPORT.”
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(Dkt. No. 172-3.) In his report, Mr. Volk explains “I have been retained to provide rebuttal
opinions” in this case, including “responding to” Plaintiffs’ expert. (Id. at 2.) Mr. Volk provides
“individualized rebuttal assessments for […] five exemplar class members[.]” (Id.) “These
individualized assessments include general rebuttal to Dr. Petersen’s methodology, which would
apply to all of the class members.” (Id. at 2-3.)
Take, for example, Mr. Volk’s assessment of class member Valerie Barajas, which
illustrates Mr. Volk’s criticism of Dr. Petersen’s methodology for all class members. Mr. Volk
reviewed materials produced in discovery and Dr. Petersen’s report and deposition. (Id. at 4-5.)
Ms. Barajas was terminated on June 30, 2023, roughly three years before the trial date. (Id. at 6.)
At her deposition, she testified she only applied to one job position after her termination because
she was caring for her child, became pregnant again, and gave birth to another child. (Id.)
Mr. Volk’s report then includes an eight-page section titled “discussion of / response to Dr.
Petersen’s analysis.” (Id. at 6-14) (cleaned up). Mr. Volk recounts “Dr. Petersen’s narrative
report provides no details on individual class members” and instead applies “the same
methodology for … all putative class members.” (Id. at 6 (quoting Dkt. No. 172-2 ¶ 6).) Next,
Mr. Volk notes “Dr. Petersen assumed that each of the class members was capable of working as a
flight attendant for the entire period between date of termination and date of trial,” but “Ms.
Barajas was clearly not making herself available for full-time work throughout the pre-trial
period” since she was pregnant and raising children at the time. (Id.) This, Mr. Volk opines,
“call[s] into question Dr. Petersen’s ‘one size fits all’ modeling.” (Id. at 6-7.) Specifically,
in my opinion it is important to do an individualized assessment of
relevant factors and information for each class member; Dr.
Petersen’s “one size fits all” methodology for calculating damages for
the entire class fails to address important considerations. One of the
primary areas of importance relates to the topic of mitigation of
claimed loss of earnings and benefits resulting from a termination. It
is my understanding that a plaintiff in an alleged wrongful termination
matter has a duty to mitigate their claimed damages through
reasonable efforts to achieve comparable employment.
In my profession, reasonable job search expectations for comparable
employment can be based on guidelines for job seekers published by
the California Employment Development Department (EDD). In the
EDD publication, “Merchandising Your Job Talents,” they write that
a job search should be a full-time endeavor. Specifically, they write,
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“You work a 40-hour week for your employer; you should work no
less for yourself.” In another EDD publication, “Tips for Finding the
Right Job in California,” they write, “Finding work is a fulltime job!”
(Id. at 7-8.)
Mr. Volk then asserts an article Dr. Petersen relied on “raise[s]” “the duty to mitigate
claimed damages.” (Id. at 8.) Per Mr. Volk, “an assessment as to whether the search for new
employment has been dutiful towards mitigating loss is an important factor according to” the
article’s authors because the authors’ “preferred methodology in assessing damages is ‘to consider
that the displaced worker has a duty to mitigate damages and incorporate a measure of mitigation
in the damages estimate.’” (Id. at 8.) Put another way, Mr. Volk opines Dr. Petersen should have
specifically assessed “whether” a class member “has been dutiful” because two authors’
purportedly “prefer[]” “to consider … a duty … and incorporate a measure of mitigation.” (Id.)
(emphasis added). Additionally, Mr. Volk then responds to Dr. Petersen’s testimony about how
he expects class members, on average, had reasonable mitigation efforts: “[n]owhere in the …
article do the authors indicate that reasonable mitigation efforts are simply assumed to have been
undertaken […] nor do the authors indicate any expectation that across a group of similarly
situated claimants, on average they would make reasonable mitigation efforts.” (Id.)
Mr. Volk also briefly takes issue with certain details in Dr. Petersen’s report. For example,
Mr. Volk observes Dr. Petersen overstates Ms. Bajaras’ damages because he (1) did not use a
certain model for calculating damages which incorporates “catch-up periods,” (2) did not consider
Ms. Barajas’ average length of employment with her prior employers in predicting her future lost
wages from Southwest, (3) premises his analysis as if Ms. Barajas would “exclusively … work as
a flight attendant” instead of other opportunities like customer service, (4) assumes a lower 401(k)
contribution rate for mitigation employment than Southwest’s contribution rate, and (5) does not
account for money Ms. Barajas saved by not paying Southwest’s union dues. (Id. at 5-14.) At no
point does Mr. Volk opine Dr. Petersen’s methodology is unreliable or discredited because, say,
Dr. Petersen’s equation considered variables that economists do not consider. For the most part,
Mr. Volk’s “discussion of / response to” Dr. Petersen’s report is the report should have considered
some details, like Ms. Barajas’ job search, and should have tinkered with a few variables, like
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401(k) contribution rates.
Some of Mr. Volk’s opinions relate to front pay, but most of Mr. Volk’s criticisms pertain
to Dr. Petersen’s back pay calculations. Because Dr. Petersen’s “catch-up periods” include time
after judgment, (see Dkt. No. 172-2 ¶¶ 7, 19), Mr. Volk’s critiques regarding Dr. Petersen’s catch-
up periods relate to front pay calculations. But Mr. Volk’s opinions about class members’ job
searches concern facts that already occurred, so they are effectively opining on damages incurred
prior to judgment. Similarly, Mr. Volk’s opinions rebutting the assumptions in Dr. Petersen’s
“one size fits all modeling”–for instance, class members were “capable of working … for the
entire period between the date of termination and date of trial”–only encompass lost compensation
incurred before judgment. (See Dkt. No. 172-3 ¶¶ 5-14.) Those latter opinions are therefore
relevant to back pay, not front pay. See Odima, 53 F.3d at 1495–96; Traxler, 596 F.3d at 1009
n.1.
DISCUSSION
I. Plaintiffs’ Motion to Exclude Mr. Volk’s Report
Under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993), Plaintiffs move to exclude “the rebuttal expert report and testimony of Karl
Volk in its entirety” or, in the alternative, “the portions of Mr. Volk’s rebuttal report that discuss
the defense of failure to mitigate” for three reasons: “1) it is not proper rebuttal but an untimely
affirmative expert report; 2) it offers impermissible legal opinions rather than expert economic
analysis; and 3) it is not based on any reliable methodology tied to the governing standard for
mitigation of damages.” (Dkt. No. 172 at 6, 7.) The Court agrees, in part, on the first point, and
therefore excludes Mr. Volk’s opinions regarding the failure to mitigate.
Although Mr. Volk’s report’s assessments of class members resemble an affirmative
expert report in some respects, it is not an affirmative evaluation of damages because, as Plaintiffs
agree, Mr. Volk “provides no alternative model” and “no recalculations.” (Id.) And on its face,
Mr. Volk’s report rebuts Dr. Petersen’s methodology and conclusions by noting Dr. Petersen
“overstates” damages because Dr. Petersen did not consider certain class members’ availability to
work full-time and average length of employment. (See, e.g., Dkt. No. 172-3 at 6-14.) In that
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sense, those aspects of Mr. Volk’s report “contradict or rebut evidence on the same subject matter”
as Dr. Petersen’s report, namely calculations for a potential back pay award. See In re High-Tech
Emp. Antitrust Litig., 2014 WL 1351040, at *3 (N.D. Cal. Apr. 4, 2014) (quoting Fed. R. Civ. P.
26(a)(2)(D)(ii)); Odima, 53 F.3d at 1495–96. And because they are proper rebuttal, they are
permissible expert analysis and need not offer an alternative methodology for calculating
damages. For example, paragraphs 1-6, 11, 13, and 15-24 of Mr. Volk’s assessment of Ms.
Barajas’s damages and paragraphs 1-3, 7-8, 13, 15, and 17-26 of Mr. Volk’s assessment of Mr.
Refuerzo’s damages are proper rebuttal because they offer background or opinions regarding Dr.
Petersen’s report unrelated to class members’ failure to mitigate damages. (See Dkt. No. 172-3 at
9-26.)
That said, the Court excludes the portions of Mr. Volk’s report that discuss the defense of
the failure to mitigate damages. Defendant’s affirmative defense asserts “[a]ny recovery on
Plaintiffs’ SAC, or any cause of action contained therein, is barred in whole or in part by
Plaintiffs’ and other similarly situated employees’ failure to mitigate their damages.” (Dkt. No. 86
at 13.) The parties agree to prevail on this defense, Defendant bears the burden of proving two
elements.2 First, “there were substantially equivalent jobs available, which the plaintiff could have
obtained.” Odima, 53 F.3d at 1497 (cleaned up). Second, “plaintiff failed to use reasonable care
and diligence in seeking such a position.” Sias v. City Demonstration Agency, 588 F.2d 692, 696
(9th Cir. 1978).
Dr. Petersen did not discuss either element, so Mr. Volk’s opinions regarding the
affirmative defense are not proper rebuttal. Specifically, Mr. Volk “estimated flight attendant
2 The affirmative defense is rooted in the traditional duty of an injured party to mitigate damages,
but the parties cite case law interpreting the back-pay provision in Title VII, which says “[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.” Sangster v. United Air Lines,
Inc., 633 F.2d 864, 867 (9th Cir. 1980) (quoting 42 U.S.C. § 2000e-5(g)). The Court will assume
without deciding the defense applies to Plaintiffs’ FMLA claims. See Rightsell v. Concentric
Healthcare Solutions LLC, 2023 WL 6248536 at *1 n.1 (D. Ariz. Sept. 26, 2023) (“Both parties
cite cases involving mitigation in the context of Title VII claims, thus, the Court assumes Title VII
mitigation principles apply.”); see also Sias, 588 F.2d at 696 (interpreting the defense in light of
“the injured party’s traditional duty to mitigate damages” and Title VII); Sangster, 633 F.2d at 867
(“As a broad proposition, injured parties are expected to mitigate the damage they suffer. This
notion is expressed in Title VII[.]”)
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openings” available to class members, opined as to what, “[i]n my profession, reasonable job
search expectations for comparable employment can be based on,” faulted Dr. Peterson for not
considering “the duty to mitigate claimed damages” and “the reasonableness of [class members’]
mitigation efforts,” and estimated economic losses for class members “[a]ssuming hypothetically”
what “the finder of fact determines” with respect to “reasonable efforts to mitigate [class
members’] claimed damages.” (See, e.g., Dkt. No. 172-3 at 6-10.) Those opinions directly bear
on both elements of the failure-to-mitigate defense. But Dr. Petersen’s report did not discuss
either element; the report’s only reference to “mitigation” is to a class member’s actual earnings,
not the duty to mitigate or Plaintiffs’ job searches. (See Dkt. No. 172-2 ¶¶ 12-20; Dkt. No. 185-4
at 8:13-25.) So, although Mr. Volk styles his opinions as a “discussion of / response to Dr.
Petersen’s analysis,” (Dkt. No. 172-3 at 6-14) (cleaned up), Mr. Volk’s discussion is not proper
rebuttal because it does not “contradict or rebut evidence” of actual earnings in Dr. Petersen’s
report. See In re High-Tech Emp. Antitrust Litig., 2014 WL 1351040, at *3 (quoting Fed. R. Civ.
P. 26(a)(2)(D)(ii)). Nor are Mr. Volk’s discussions “on the same subject matter,” id., because his
opinions address an affirmative defense Dr. Petersen did not raise, and for which Defendant bears
the burden of proof.
Defendant’s argument Mr. Volk’s mitigation opinions are proper rebuttal because
“mitigation is a material part of [Dr. Petersen’s] damages framework, given that past and future
‘mitigating wages’ were embedded directly into his economic loss formulas” is unavailing. (Dkt.
No. 185 at 14.) Defendant misunderstands Dr. Petersen’s definition of “mitigating wages,” i.e.,
actual earnings from a new job. (Dkt. No. 172-2 ¶¶ 12-20.) By contrast, the duty to mitigate
examines available, equivalent jobs and a plaintiff’s reasonable care in finding a job. True, Dr.
Petersen’s report said the word “mitigating,” but his definition of “mitigating” limited the scope of
proper rebuttal to, say, contradicting or rebutting a calculation of what Plaintiffs actually earned in
their new jobs. (See id.) Dr. Petersen did not opine on whether Plaintiffs exercised reasonable
care in finding substantially equivalent jobs. (See Dkt. No. 86 at 13); Odima, 53 F.3d at 1497;
Sias, 588 F.2d at 696.
Accordingly, the Court grants Plaintiffs’ motion and excludes Mr. Volk’s opinions
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discussing Defendant’s affirmative defense, i.e., what substantially equivalent jobs Plaintiffs could
have obtained and Plaintiffs’ use of reasonable care in seeking new jobs. Given Plaintiff does not
identify specific paragraphs which should be excluded, the Court will hear argument at a later date
regarding which paragraphs to exclude.
II. Plaintiffs’ Motion for Partial Summary Judgment
“Plaintiffs seek partial summary judgment dismissing Defendant’s affirmative defense of
failure to mitigate damages.” (Dkt. No. 173 at 3.) Defendant has the burden of proving its
affirmative defense, Sias, 588 F.2d at 696, and Plaintiffs move only on the issue of whether a trier
of fact could find there were substantially equivalent jobs Plaintiffs could have obtained. So,
Plaintiffs must show “there is no genuine issue as to any material fact” as to that issue such that
Plaintiffs are “entitled to” dismissal of the affirmative defense “as a matter of law.” Fed. R. Civ.
P. 56(a).
Generally, “district court has wide discretion in awarding remedies to make a Title VII
plaintiff whole.” Odima, 53 F.3d at 1495. That said, “‘given a finding of unlawful discrimination,
backpay should be denied only for reasons which, if applied generally, would not frustrate the
central statutory purposes of eradicating discrimination throughout the economy and making
persons whole for injuries suffered through past discrimination.’ This dual purpose is not
inconsistent with the injured party’s traditional duty to mitigate damages, nor does it in any way
relieve him of his duty.” Id. (quoting Albermarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975)).
In light of that dual purpose, the lack-of-mitigation affirmative defense can limit back pay or front
pay awards when: (1) there were “substantially equivalent jobs which Plaintiffs could have
obtained” after their termination, and (2) Plaintiffs failed to exercise “reasonable diligence” in
seeking a job. Odima, 53 F.3d at 1497 (addressing back pay); see also Pape Lift, Inc., 115 F.3d at
682–83 (addressing front pay). Plaintiffs’ motion rests on the first prong.
Although the Ninth Circuit has not announced a hard-and-fast rule as to what makes a job
“substantially equivalent,” Pape Lift, Inc. is instructive. There, a jury returned a verdict in favor
of a terminated employee who had managed “the parts department” of a “retail outlet for forklift
trucks.” Id. at 679. The district court then eliminated the front pay award because the employee
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failed to mitigate his damages. Id. at 679, 682. During his post-termination job search, the
employee received “a response from the manager of a lift truck company interested in hiring
[him]” for a job which “would have entailed ‘several hours waiting on customers’ and paid about
half” of his previous salary as a parts manager. Id. The employer’s “expert testified that he
reviewed positions available … in … customer service management[ and] parts management,”
whereas the plaintiff “put forward evidence, however, that those jobs that were similar in kind to
[the employee’s] former position had salaries lower than that of his old job” and “some of those
jobs listed by [the] expert … included positions as a news director” and a “music librarian,” which
were “substantially dissimilar to” the employee’s prior jobs. Id. at 683.
The Ninth Circuit reversed, holding the district court erred when it “apparently concluded
that since [the employer]’s evidence of suitable employment covered the fall of 1993 and the time
immediately preceding trial, [the employer] had demonstrated that suitable employment would be
available from the time of trial to late December 1995.” Id. at 682.
In Ford Motor Co. v. EEOC, 458 U.S. 219, 231, 102 S.Ct. 3057, 3065,
73 L.Ed.2d 721 (1982), the Supreme Court held that “an unemployed
or underemployed claimant need not go into another line of work,
accept a demotion, or take a demeaning position.” A plaintiff need
only pursue “substantially equivalent” work. Id. at 232[. Defendant]’s
argument may essentially be reduced to the proposition that an
individual should consider working as an animal health manager or
music librarian after he has been illegally discharged from his position
as a parts manager in a forklift truck operation, or alternatively, that
he should accept a position similar to the one he held previously, but
which offers a significantly lower salary. These arguments are simply
untenable, and we reject them. The jury’s finding that Pape did not
satisfy its burden of demonstrating that suitable work was available
to Waters is thus well-supported by the evidence.
Pape Lift, 115 F.3d at 683. Both Pape Lift and Ford Motor mentioned, but neither adopted nor
rejected, the “so-called ‘lowered sights doctrine’” which is “‘after an extended period of time
searching for work without success, a claimant must consider taking a lower-paying position.’”
Pape Lift, 115 F.3d at 683 (quoting 458 U.S. at 232 n.16).
Plaintiffs assert Defendant’s evidence is insufficient to raise an inference there were
substantially equivalent jobs Plaintiffs could have obtained. Plaintiffs note Mr. Volk’s report
should be excluded, and even if the Court considers Mr. Volk’s report, Defendant does not have
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“admissible expert testimony or other evidence” showing either “substantially equivalent jobs
existed” with “comparable compensation, benefits, responsibilities, and status” or “class members
could have obtained such positions.” (Dkt. No. 173 at 8-11.) Although the Court excludes Mr.
Volk’s opinions about the duty to mitigate, Defendant responds evidence outside of Mr. Volk’s
report permits an inference substantially equivalent jobs were available. Specifically, Defendant
points to (1) Bureau of Labor Statistics Data in Dr. Petersen’s report and (2) class members’
deposition testimony. The Court agrees evidence in Dr. Petersen’s report3 and Plaintiffs’
deposition testimony permit an inference there were substantially equivalent jobs which Plaintiffs
could have obtained.
First, to estimate class members’ projected earnings, Dr. Petersen reviewed “data on wages
and employment of Flight Attendants from the U.S. Bureau of Labor Statistics” and “performed a
labor market supply and demand analysis for flight attendants in the U.S.” (Dkt. No. 172-2 at 4.)
Defendant attaches a table from Dr. Petersen’s report illustrating the supply and demand analysis,
which estimates the “total job openings per year” for flight attendants between “2024-34” as
“19,800.” (Dkt. No. 186-5 at 2; see also Dkt. No. 186-3 at 8:21-25 (testifying “19,800 [… is] the
3 Plaintiffs emphasize Defendant does not have “admissible expert testimony” regarding
substantially equivalent employment. (Dkt. No. 173 at 8-11.) But “[a]t the summary judgment
stage, we do not focus on the admissibility of the evidence’s form. We instead focus on the
admissibility of its contents.” Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003). The Court
considers Dr. Petersen’s report as part of Defendant’s evidence because Defendant can
conceivably admit at least some of the Bureau of Labor Statistics data through examination of Dr.
Petersen.
Relatedly, Defendant requests judicial notice of the Bureau of Labor Statistics data, and in
particular the government’s projections of annual flight attendant openings. (Dkt. No. 187.)
Defendant’s request instructs the Court, step-by-step, how to download data from the Bureau of
Labor Statistics’ website, open it in spreadsheet form, and interpret the voluminous spreadsheet to
ascertain the average number of projected job openings in years that Dr. Petersen’s supply-and-
demand analysis did not examine. (See generally id.) For instance, Defendant requests the Court
take judicial notice of counsel’s “summary” of the data, i.e., interpreting numbers found in “row
999” and “row 1060” of the spreadsheet. (Id. at 10.) The Court denies Defendant’s request as
improper. While government websites may be judicially noticed, even if a “document itself is
susceptible to judicial notice[, that] does not mean that every assertion of fact within that
document is judicially noticeable for its truth.” See Khoja v. Orexigen Therapeutics, Inc., 899
F.3d 988, 999 (9th Cir. 2018). Data points buried deep in agency-produced spreadsheets are not
“generally known within the trial court’s territorial jurisdiction” and cannot “be accurately and
readily determined,” Fed. R. Evid. 201(b)(1), (2), because data analysis of this sort requires some
degree of sophistication, personal knowledge, or expertise.
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annual … demand over 10 years. So, that would be the total expected job openings per year.”))
Recall Dr. Petersen did not opine as to whether there was substantially equivalent employment
available to class members. Nonetheless, based on this job openings estimate, Defendant argues
“the sheer volume of available positions” for flight attendants alone “may be sufficient to establish
that ‘substantially equivalent’ employment was available.” (Dkt. No. 186 at 16-17.)
Second, some class members testified they saw or found flight attendant job openings after
their termination. At her deposition in September 2025, Valerie Barajas testified United “recently
[…] had a job opening window for inflight,” although she did not apply because her passport was
set to expire soon, which meant she did not meet one of the job requirements. (Dkt. No. 186-6 at
15:16-16:21.) Alexander McCall Smith testified she obtained a full-time flight attendant job
where she earned more on an hourly basis than she did at Southwest. (Dkt. No. 186-10 at 16:17-
17:24.) And Victoria Paige Mack “found a SkyWest flight attendant position” in December 2025.
(Dkt. No. 186-11 at 18:10-19:9.) At the time, she was “trying to find comparable airlines to
Southwest,” meaning “comparable start pay, schedules, unionized, training times, aircraft fleet …
anything that I’m used to or similar size or airline[.]” (Id.)
Drawing inferences in Defendant’s favor, the Bureau of Labor Statistics data and class
members’ testimony permit an inference there were substantially equivalent jobs which Plaintiffs
could have obtained. All terminated class members, by definition, were flight attendants, and in
each year between 2024 and 2034, there were roughly 19,800 job openings for the flight
attendants nationwide. Given those openings are for the same kind of job Plaintiffs previously
had, Defendant’s argument here is not “essentially … reduced to the proposition that [Plaintiffs]
should consider” “another line of work.” See Pape Lift, 115 F.3d at 687 (citing Ford Motor, 458
U.S. at 231). That said, Plaintiffs are correct Dr. Petersen’s analysis does not set forth these roles’
pay, location, or other factors which would bolster Defendant’s argument these roles are
“substantially equivalent” to Plaintiffs’ jobs at Southwest. (See generally Dkt. No. 172-2 at 4;
Dkt. No. 186-5 at 2; see, e.g., Dkt. No. 186-7 at 25 (testifying “I felt my worth was minimum $20
an hour.”)) But Plaintiffs’ own evidence suggests a high volume of job openings for flight
attendants–19,800 per year. The sheer volume of openings, coupled with testimony at least some
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class members saw flight attendant openings or obtained flight attendant positions with similar pay
and benefits, permits an inference there were “substantially equivalent” jobs which Plaintiffs could
have obtained. (See, e.g., Dkt. No. 186-10 at 16:17-17:24 (testifying she obtained a full-time
flight attendant job with better hourly wages than Southwest); Dkt. No. 186-11 at 18:10-19:9
(testifying she saw a flight attendant opening while looking for positions which are “comparable”
in “start pay, schedules,” unionization, and other factors she was “used to” at Southwest)).
Therefore, class members are not necessarily “accept[ing] a demotion” or taking “significantly
lower pay.” Pape Lift, 115 F.3d at 687. So, drawing inferences in Defendant’s favor, Plaintiffs
have not shown, as a matter of law, Defendant’s affirmative defense must be dismissed on the
basis no reasonable trier of fact could find there were no substantially equivalent jobs which
Plaintiffs could have obtained.
Plaintiffs’ insistence Defendant must identify specific openings “offering virtual identical
promotional opportunities, compensation, working conditions, and status” (Dkt. No. 193 at 6) is
unavailing. Plaintiffs cite several district court cases as stating jobs are “substantially equivalent”
when the jobs have “virtually identical promotional opportunities, compensation, job
responsibilities, working conditions, and status.” (Id. at 6-9) (cleaned up). But the Ninth Circuit
has not held that is the rule. Plaintiffs rely on cases which “cit[e] Odima” and “apply[] the Odima
standard” (see generally id.), but Odima does not say anything about what constitutes
“substantially equivalent” employment. See 53 F.3d at 1496–97. Rather, Odima stated there is
“no Ninth Circuit authority” for the argument “[i]f an employer proves that a plaintiff failed to
look for work, the employer is not required to prove that jobs were available.” Id. at 1497
(cleaned up). So, if anything, Odima merely re-affirmed the failure to mitigate defense has two
elements, and the employer must prove both. The Court therefore declines to adopt the “virtually
identical …” language some district courts have applied. See, e.g., Cheeks v. General Dynamics,
22 F. Supp. 3d 1015, 1027 (D. Ariz. 2014); Brown v. Riverside Elementary School District No. 2,
2024 WL 474528, at *5 (D. Ariz. Feb. 7, 2024); Hughes v. Mayoral, 721 F. Supp. 2d 947, 967–68
(D. Haw. 2010).
Consider, for instance, Plaintiffs’ reliance on Cheeks, which held jobs are “substantially
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equivalent” when they have “virtually identical promotional opportunities, compensation, job
responsibilities, working conditions, and status.” 22 F. Supp. 3d at 1027–28 (cleaned up). The
“virtually identical” language came from another district court case, Cassella v. Mineral Park,
Inc., 2010 WL 454992, at *5 (D. Ariz. Feb. 9, 2010), which borrowed the standard from the Fifth
Circuit. Id. (quoting Sellers v. Delgado College, 902 F.2d 1189, 1193 (5th Cir. 1990)). And even
under that standard, Cheeks reached the same conclusion as this Court on a similar evidentiary
showing by the employer. There, the employer produced “job search results” showing “dozens of
potentially equivalent available jobs,” but the search results “consist[ed] only of job titles,
employers, and locations.” 22 F. Supp. 3d at 1027, 1028 n.14. Based on “the sheer number of
jobs specifically responsive to Plaintiff’s own search parameters,” Cheeks held it is “reasonable to
infer that at least one of the dozens of potentially equivalent jobs may have been, in fact,
equivalent to Plaintiff’s previous position[. …] Thus, […] at the summary judgment stage where
all reasonable inferences must be made in favor of the non-movant, [Defendant]’s failure to
proffer detailed descriptions of the jobs is not fatal.” Id. at 1027-28. Admittedly, unlike Cheeks’
evidence, Dr. Petersen’s report does not show the employers or locations of the job openings.
(Dkt. No. 186-5 at 2.) But the “sheer number of … potentially equivalent jobs” here (roughly
19,800 per year) is exponentially higher than the “dozens” of potentially equivalent jobs in
Cheeks. (See id.); 22 F. Supp. 3d at 1027–28 & n.14. And here, some class members testified
they obtained, and/or saw openings for, flight attendant jobs with similar employers. Therefore, it
is “reasonable to infer that at least one of the [19,800] potentially equivalent jobs may have been,
in fact, equivalent to Plaintiff[s’] previous position[.]” Cheeks, 22 F. Supp. 3d at 1028.
Accordingly, the Court denies Plaintiffs’ motion for partial summary judgment.
CONCLUSION
As explained above, the Court excludes the portions of Mr. Volk’s report that discuss class
members’ failure to mitigate damages and denies Plaintiffs’ motion for partial summary judgment.
This Order disposes of Docket Nos. 172 and 173.
IT IS SO ORDERED.
Dated: June 10, 2026
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JACQUELINE SCOTT CORLEY
United States District Judge
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