Parker v. Twentieth Century-Fox Film Corp. (Cal.).
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Facts. On August 6, 1965, Twentieth Century-Fox Film Corporation (Fox), a major film
production studio, entered into an employment contract with Shirley MacLaine Parker
(Parker), an actress. Under the contract, Parker was to play the leading female role in a
musical production called Bloomer Girl, to be filmed in Los Angeles. In the movie, Parker
would be able to use her talents as a dancer as well as an actress. The contract provided
that Parker was to be paid guaranteed compensation of $53,571.42 per week for 14 weeks
commencing on May 23, 1966, for a total of $750,000. On April 4, 1966, Fox sent Parker
a letter notifying her that it was not going to film Bloomer Girl. The letter, however,
offered Parker the leading female role in a film tentatively entitled Big Country, which
was to be a dramatic western to be filmed in Australia. The compensation Fox offered
Parker was identical to that offered for Bloomer Girl. Fox gave Parker one week to accept.
She did not and the offer expired. Parker sued Fox to recover the guaranteed compensation
provided in the Bloomer Girl contract. The trial court granted summary judgment to
Parker. Fox appealed.
Was the job that Fox offered Parker in Big Country comparable employment that Parker
was obligated to accept to mitigate damages?
Opinion. Burke, Justice. The general rule is that the measure of recovery by a
wrongfully discharged employee is the amount of salary agreed upon for the period of
service, less the amount that the employer affirmatively proves the employee has earned
or with reasonable effort might have earned from other employment. However, before
projected earnings from other employment opportunities not sought or accepted by the
discharged employee can be applied in mitigation, the employer must show that the other
employment was comparable, or substantially similar, to that of which the employee has
been deprived; the employee's rejection of or failure to seek other available employment
of a different or inferior kind may not be resorted to in order to mitigate damages.
Applying the foregoing rules to the record in the present case, with all
intendments in favor of the party opposing the summary judgment motion--here,
defendant Fox--it is clear that the trial court correctly ruled that plaintiff's failure to
accept defendant's tendered substitute employment could not be applied in mitigation of
damages because the offer of the Big Country lead was of employment both different and
inferior, and that no factual dispute was presented on that issue. The mere circumstances
that Bloomer Girl was to be a musical review calling upon plaintiff's talents as a dancer as
well as an actress, and was to be produced in the City of Los Angeles, whereas Big
Country was a straight dramatic role in a Western-type story taking place in an opal mine
in Australia, demonstrates the difference in kind between the two employments: The
female lead as a dramatic actress in a Western-style motion picture can by no stretch of
imagination be considered the equivalent of or substantially similar to the lead in a song-
Holding. The state supreme court held that the job that Fox offered to Parker in Big
Country was not comparable employment to the role Fox had contracted Parker to play
in Bloomer Girl. Therefore, Parker did not fail to mitigate damages by refusing to accept
such employment. The supreme court affirmed the trial court's summary judgment.
Ethics. Did Fox act ethically in this case? Did Parker?
Policy. Should nonbreaching parties be under a duty to mitigate damages caused by the
breaching party? Why or why not?
Business Implication. Who is more likely to be able to mitigate damages when there is a
breach of an employment contract: (1) the president of a large corporation, (2) a middle
manager, (3) a bank teller?
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