Parker v. Twentieth Century-Fox Film Corp.

California Supreme Court, 1970

Parties: Plaintiff- Shirley McClaine

Defendant- Twentieth Century-Fox Film corp.

Procedure: defendants appeal trial court’s grant of summary judgement for $750,000.

Facts

On August 6, 1965, plaintiff and defendant enter a contract in which plaintiff was to play the female lead in a motion picture, “Bloomer Girl”, a musical song and dance number contemplated by defendant. Compensation for plaintiff was $53,571.42 per week for 14 weeks, commencing May 23, 1966 for a total of $750,000. In a letter dated April 4, 1966, defendant notified plaintiff by mail that they decided not to produce that motion picture, and offered the lead role in a western, “Big Country”. Paintiff was given one week to accept, and she refused, seeking recovery of agreed upon compensation.

Issue

Did plaintiff, in rejecting defendant’s substitute offer of employment, fail to reasonably mitigate damages?

Holding

Defendant’s offer did not constitute comparable or substantially similar employment as that originally agreed upon, and plaintiff was under no duty to accept.

Rule

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 employment, minus the amount the employer can prove the employee has earned or might have earned with reasonable effort. Before earnings from rejected alternate employment will be applied, the employer must prove that the work offered was comparable or substantially similar to the work she has been deprived.

The original film contemplated was a song and dance number that would highlight the plaintiff’s musical talents as well as her acting talents, and was to be filmed in southern California. “Big Country” was to be a western filmed in Australia, with a dramatic female lead. Additionally, the plaintiff was to approve the screenplay and choice of director under the original employment contract, rights that were not present in the alternate offer of employment. For these reasons, the court concluded that the alternate employment offered was not of comparable or similar quality.

In dissent, Judge Sullivan states that the inquiry in a case such as this should not be whether the two jobs are substantially different, but whether the differences are substantial enough to constitute different or inferior employment.