851 Generally, burdens and proof

Even though the record did not demonstrate that the Complainants were diligent in searching for full-time work following their discharge, there was no showing that such full-time work was reasonably available. It was the Respondent’s burden to make this showing. Achilli v. Sienna Crest Assisted Living (LIRC, 07/18/08).

The Wisconsin Fair Employment Act requires that back pay awards be reduced by amounts earnable with reasonable diligence. The burden of proving a failure of reasonable mitigation is on the Respondent. The Respondent can sustain this burden by demonstrating: (1) that the Complainant failed to make a diligent effort to seek new employment and that there was a reasonable likelihood that the Complainant might have found comparable work by exercising reasonable diligence, or (2) that the Complainant unreasonably rejected proffered employment that was comparable to the job that she had with the Respondent. In this case, the Complainant’s failure to present documentary evidence of her job search efforts did not in and of itself call into question her testimony that she searched for work. Job seekers do not necessarily keep records of the jobs they have applied for unless they are required to do so for unemployment insurance or other purposes. Nunn v. Dollar Gen. (LIRC, 03/14/08).

While presentation of classified advertisements is a common method for establishing that a Complainant has failed to mitigate her damages by making a diligent effort to seek new employment, such evidence was unpersuasive in this case where the Complainant had an arrest record which might deter prospective employers from giving her serious consideration (as it did the Respondent). Thus, even if the Complainant failed to make a diligent effort to seek new employment, and the Respondent had established there were numerous appropriate jobs available, these facts would not necessarily warrant a conclusion that there was a reasonable likelihood that the Complainant could have found comparable work any sooner than she did. Nunn v. Dollar Gen. (LIRC, 03/14/08).

The Respondent has the burden of proving a failure of reasonable mitigation of damages. To meet the burden of proving the affirmative defense of failure to mitigate, the employer must establish: (1) that the Complainant failed to exercise reasonable diligence to mitigate his damages; and (2) that there was a reasonable likelihood that the Complainant might have found comparable work by exercising reasonable diligence. Goldsworthy v. Elite Marble (LIRC, 10/15/04).

The mitigation of damages concept is used to determine whether a terminated employee exercised reasonable diligence in seeking comparable employment after her discharge. Powell v. SBC Ameritech (LIRC, 04/21/03).

Once a Complainant establishes the amount of damages she claims resulted from the employer’s conduct, the burden shifts to the employer to show that the Complainant failed to mitigate her damages, or that the damages were in fact less than she asserts. Haas v. Jerry Sark (LIRC, 03/19/03).

The ultimate inquiry in a mitigation of damages question is whether the Complainant acted reasonably in attempting to gain other employment or in rejecting proffered employment. The Respondent bears the burden of proving the affirmative defense of a failure to mitigate. Ramos v. Stoughton Trailers (LIRC, 08/16/01).

A Complainant has an obligation to mitigate his damages, and if the Respondent can demonstrate that he failed to make a diligent effort to do so, the back pay award may be reduced by the amount the Complainant could have earned had he exercised reasonable diligence in seeking new employment. Fields v. Cardinal TG Co. (LIRC, 02/16/01).

The use of classified advertisements showing the availability of different positions during the back pay period is a common method of proof of failure to mitigate damages. Whether opportunities for other comparable employment existed, such that the employer can be considered to have satisfied its burden of proving that there was a reasonable likelihood that the Complainant might have found comparable work by exercising reasonable diligence, is primarily a question of fact. Where the employer introduces no evidence that any alternative employment was available to a former employee during the back pay period, the employer has not sustained its burden of proof. Mueller v. Schedulesoft (LIRC, 10/27/00).

The Respondent attempted to show that the Complainant failed to mitigate her damages by, among other things, introducing statistics published by the Department of Workforce Development showing that the unemployment rate in the area during the back pay period was between 1.5% and 1.7%. These general statistics lump all kinds of employment together; they cannot help answer the question of whether there was comparable work available to the Complainant. Furthermore, the suggested fact that a low unemployment rate means a high rate of open and available jobs is one which is not actually established by the mere unemployment rate figures themselves, but instead requires some additional knowledge of and analysis of labor market conditions. Mueller v. Schedulesoft (LIRC, 10/27/00).

To meet the burden of proving the affirmative defense of failure to mitigate damages, the employer must establish that the Complainant failed to exercise reasonable diligence to mitigate her damages, and that there was a reasonable likelihood that the Complainant might have found comparable work by exercising reasonable diligence. Biggers v. Isaac’s Lounge (LIRC, 10/29/99).

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 manner in which the Complainant treated the Respondent at the hearing is irrelevant to the issue of mitigation of damages. The question of mitigation of damages is simply whether, after a legal wrong has been committed causing damage to another party, that party makes reasonable efforts to avoid or lessen the damage. Dude v. Thompson (LIRC, 11/16/90).

In order to satisfy its burden of proving that the Complainant failed to mitigate damages, the Respondent must prove both that the Complainant was not reasonably diligent in seeking other employment and that, with the exercise of reasonable diligence, there was a reasonable chance that the Complainant might have found comparable employment. Lambert v. All Lighting, Inc. (LIRC, 08/28/90).

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).

The Respondent has the burden of showing that the Complainant did not make reasonable efforts to mitigate her damages, thereby cutting off the back pay period. Compton v. Great Wall Rest. (LIRC, 07/20/89).

Where unlawful discrimination has occurred, the employer has the burden of proving its contention that the Complainant has failed to adequately mitigate his or her back pay losses by seeking other employment. Rusch v. City of La Crosse Police & Fire Comm’n (LIRC, 12/19/88).

While an employee has a duty to seek other employment in mitigation of damages, the employer has the burden of proof to establish that alternative employment was an available reality. Where there was evidence only that employment was available in the Complainant's field, but there was no comparison of pay, location, or other circumstances for the available positions, it was held that the employer failed to establish the existence of available alternative employment. UW Whitewater v. LIRC (Ct. App., Dist. IV, unpublished opinion, 11/25/85).

The Wisconsin Fair Employment Act requires that back pay awards be reduced by “amounts earnable with reasonable diligence.” The burden of proving a failure of reasonable mitigation is on the employer. Anderson v. LIRC, 111 Wis. 2d 245, 255, 330 N.W.2d 594 (1983).

Where the employer did not show that there were any suitable jobs available during the back pay period or that the job applicant turned down any jobs, it failed to meet its burden of proof on the question of mitigation of damages. Neuendorf Transp. v. LIRC (Vicherman) (Dane Co. Cir. Ct., 05/07/82).

Failure to mitigate damages is an affirmative defense, and where the employer failed to show that there were suitable jobs available during the back pay period or that the applicant turned down any jobs, the employer failed to meet its burden on that issue. Appleton Elec. v. LIRC (Kreider) (Dane Co. Cir. Ct., 05/12/81).