ALFREDO Villacorta, a Filipino mechanical engineer, worked as a maintenance planner at Cemex Cement, Inc., a large cement production company with a plant in Victorville. Villacorta transferred to Victorville from Cemex’s plant in the Philippines where he worked for 15 years. Villacorta was laid off from Cemex on February 22, 2008. At that time, he was earning an annual salary of $65,699. Villacorta claimed he was laid off because he is Filipino, and the Cemex managers preferred Venezuelans. Villacorta was unemployed for approximately eight months. During that time, Villacorta suffered anxiety and depression.
On October 15, 2008, he found work as a maintenance supervisor for National Cement in Bakersfield which is about 2 to 3 hours from where he lived. He had to rent a room in Lancaster and go home only on weekends to see his family. At National, Villacorta earned an annual salary of approximately $69,300.
Villacorta sued Cemex for wrongful termination in violation of public policy and national origin discrimination. At trial, the jury awarded the employee $198,000 for lost wages (calculated as wages he lost from the time he was fired until the time of trial or approximately 3 years of lost wages).
In its decision, the Court of Appeals said that, generally, a wrongfully terminated employee is entitled to recover lost wages. Lost wages is computed as the employee’s compensation before the termination, minus any amount earned from a new job (assuming the employee has found a new job after being fired).
However, the employee’s earnings at the new job will only reduce his lost wages claim if the employer can show that the new employment was comparable to his old job. If the new job is different or inferior, then the wages from the new job may not be used to reduce the employee’s lost wages claim.
Wages earned from an inferior job may not be used to reduce damages because 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. The location of the new job is one of the factors to consider in determining whether the new job is inferior. The evidence showed that the employee’s new job was located two to three hours away from where his family resided. As a result, he had to rent a room in Lancaster, which was still one hour away from the new job because no closer rental was available. As a further result, Villacorta could see his wife and two young daughters only on weekends.
Because the new job was inferior to the job at Cemex because of its location, it was reasonable for the jury to award the full value of the employee’s loss of earnings. The amount of the employee’s wages at his new job should not reduce the employee’s recovery.
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C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully obtained significant results, including several million dollar recoveries for consumers against insurance companies and employers. He has been selected as a Super Lawyer by the Los Angeles Magazine, and is a member of the Million Dollar-Advocates Forum – a prestigious group of trial lawyers whose membership is limited to those who have demonstrated exceptional skill, experience and excellence in advocacy. He has been featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements for his professional accomplishments and recipient of numerous awards from community and media organizations. His litigation practice concentrates in the following areas: wage and hour (overtime) litigation, serious personal injuries, wrongful death, insurance claims, and unfair business practices. His law firm is currently class counsel to thousands of employees seeking payment of wages in California courts. You can visit his website at www.joesayaslaw.com or contact his office by telephone at (818) 291-0088. Inquiries to his law office are welcome and at no cost.
