831.43 Quitting or being fired from comparable job

Just because an employee is discharged from a subsequent job does not necessarily establish that he failed to reasonably mitigate his damages arising from a previous act of discrimination. In this case, the Complainant’s discharge from his subsequent job did not cut off his entitlement to back pay because the record did not establish that his actions were unreasonable or wrongful. Matousek v. Sears Roebuck & Co. (LIRC, 02/17/06); vacated and remanded for further proceedings sub nom. Sears Roebuck & Co. v. LIRC (Milwaukee Co. Cir. Ct., 09/29/06).

It is appropriate to reduce a back pay award by the amount the Complainant would have earned had he exercised reasonable diligence in seeking new employment. However, quitting a subsequent job is not necessarily an event which completely cuts off the Respondent’s liability for back pay. Robertson v. Family Dollar Stores (LIRC, 10/14/05).

There is no per se rule that discharge from subsequent employment ends the Respondent’s back pay liability, even when the Complainant’s discharge was for poor performance. The question is whether the discharge indicated that the Complainant did not act reasonably to mitigate his damages. In this case, the Complainant was fired for failing to record the correct number of pallets at his subsequent place of employment. There was nothing in the record to suggest that this anything more than an inadvertent performance error on his part. Therefore, there was no reason to regard it as a deliberate failure to mitigate his damages. Robertson v. Family Dollar Stores (LIRC, 10/14/05).

The Complainant did not fail to exercise reasonable diligence in mitigating her damages when she was fired from her subsequent employment for having three absences which, under the circumstances, were understandable absences U.S. Paper Converters v. LIRC, 208 Wis. 2d 523, 561 N.W.2d 756 (Ct. App. 1997).

Not all voluntary quits of subsequent jobs constitute a lack of reasonable diligence in mitigating a wage loss. The burden is on the employer to prove that the Complainant did not have any justifiable reason for quitting. In this case, the Complainant established that the job she took after being discharged by the Respondent was not comparable in terms of working conditions or compensation. Under the circumstances, the Complainant’s quitting that job should have no adverse effect on her eligibility for back pay. Crivello v. Target Stores (LIRC, 06/13/95), aff’d sub nom. Target Stores v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 (Ct. App. 1998).

The burden is on the employer to prove that the employee has failed to exercise reasonable diligence in mitigating her wage loss. Not all voluntary quits of subsequent jobs constitute a lack of reasonable diligence in mitigating a wage loss. Davis v. Braun-Hobar Corp. (LIRC, 04/18/90).

A Complainant's quitting a subsequent job three days after she began it did not toll the back pay period where the job required an excessive number of hours and did not include any breaks. State ex rel. Badger Produce v. MEOC (Dane Co. Cir. Ct., 09/02/80).

A part-time grocery store cashier who was discriminatorily discharged due to pregnancy was allowed back pay from the date of discharge to the date she voluntarily quit her cleaning job. Peterke v. Jolly Foods (LIRC, 10/03/78), aff’d sub nom. Jolly Foods v. LIRC (Dane Co. Cir. Ct., 05/08/79), aff’d, (Ct. App., Dist IV, unpublished opinion, 05/23/80).

Because a complaining party quit a comparable job which he had taken after being discriminatorily refused hire as a brakeman, it was reasonable to conclude that he would have also quit the first job and he was therefore not entitled to back pay and retroactive seniority. Soo Line R.R. v. LIRC (Bergeman) (Dane Co. Cir. Ct., 09/07/78).