## Facts

- Shirley MacLaine Parker contracted with Twentieth Century-Fox Film Corporation to star in a musical film, *Bloomer Girl*, for \$53,571.42 per week for 14 weeks (total \$750,000).
- The agreement contemplated a musical performance and included negotiated creative approvals, including approval rights relating to the director and screenplay, and approval of the dance director.
- Before production began, Fox notified Parker that it would not perform its obligations under the *Bloomer Girl* contract.
- Fox simultaneously offered Parker the lead role in a different film, *Big Country, Big Man*, at the same pay; 31 of 34 contract provisions were the same.
- *Big Country, Big Man* was a dramatic western-type film to be shot in Australia and did not provide Parker the same approval rights over the director and screenplay; dance-related provisions were also absent.
- Parker did not accept the substitute offer within the stated time; she sued for the full guaranteed compensation.
- Fox conceded the validity of the original contract, Parker’s ability and readiness to perform, and Fox’s breach by anticipatory repudiation.
- The trial court granted summary judgment for Parker for \$750,000; the Court of Appeal affirmed.

## Issues

1. Whether an employee’s damages for an employer’s anticipatory repudiation must be reduced when the employee declines substitute employment offered by the breaching employer.
2. Whether the employer met its burden to show the offered substitute employment was comparable or substantially similar to the contracted employment.
3. Whether, on undisputed facts, the comparability of the substitute employment could be decided as a matter of law on summary judgment.

## Decision

- The Supreme Court of California affirmed summary judgment for Parker.
- The court held that damages are the contract salary minus amounts the employer proves the employee earned or could have earned with reasonable effort in comparable employment.
- The employer bears the burden to prove both availability and comparability of substitute employment.
- The *Big Country, Big Man* offer was different and inferior as a matter of law; Parker had no duty to accept it to mitigate damages.
- Because the material differences between the two employments were undisputed, the comparability question was properly resolved on summary judgment.

## Legal Principles

- In wrongful discharge or anticipatory repudiation of an employment contract, the employee’s recovery is the agreed compensation for the contract term, less what the employer proves the employee earned or with reasonable effort could have earned from other employment.
- An employee’s rejection of, or failure to seek, employment that is different or inferior cannot be used to reduce the employee’s recovery.
- The burden of proof on mitigation rests on the breaching employer, including proof that substitute work was substantially similar or comparable.
- Where the material facts are undisputed, a court may determine as a matter of law whether proposed substitute employment is comparable.

## Conclusion

The court held that an employee wrongfully deprived of contracted employment need not accept substitute work that is materially different or inferior to mitigate damages, and because the offered replacement film role lacked key creative-control terms and differed in nature and location, the actor was entitled to the full guaranteed compensation.


Parker v. Twentieth Century-Fox Film Corp., 3 Cal. 3d 176 (Cal. 1970)