852 Cases

The Complainant was not required to mitigate the cost of her post-termination medical expenses by purchasing medical insurance. Garza v. Koenig Concrete Corp. (LIRC, 10/30/23).

A failure to accept suitable replacement employment can serve to cut off the entitlement to back pay. However, the Complainant was not expected to accept a job offer where he did not satisfy the requirements of the job. Gilbertson v. Wingra Redi-Mix, Inc. (LIRC, 12/10/20), aff'd sub nom. Wingra Redi-Mix v. LIRC (Dane Co. Cir. Ct. 10/12/21), appealed 11-23-21 and awaiting decision as of 5-10-23.

The Complainant attended a technical school in order to gain the skills necessary to become employed with a specific employer in the area. He also attempted to continue in paid employment while attending school, but quit that employment when it interfered with his schoolwork. There was no reason to believe that the Complainant’s efforts were not undertaken in mitigation of his damages. It would not be appropriate to reduce his back pay as a result. Knight v. Walmart Stores East (LIRC, 10/11/12).

The Complainant did not attempt to mitigate his damages. The Complainant was not eligible for back pay following his discharge where he did not seek employment and he made no contention that his failure to do so was because of a lack of job opportunities in the labor market. Smith v. Wis. Bell (LIRC, 04/19/12).

Self-employment is an acceptable method of mitigating damages. The Complainant did not fail to mitigate his damages in the first year following his discharge where he enrolled in taxidermy school and set up his own taxidermy business. The evidence did not suggest that at the time the Complainant decided to go to taxidermy school and start his own business he lacked a reasonable expectation that the business could be successful. Nor was there any evidence to indicate that the Complainant’s efforts to get the business off the ground were inadequate. However, while it might be reasonable to expect a new business to founder in its early days, there comes a point at which the Complainant’s self-employment efforts are recognized to be failing and can no longer be deemed a reasonable effort to mitigate damages. At some point the Complainant should have recognized that he was not going to be able to support himself on his taxidermy business alone. At that point he was no longer attempting to mitigate his wage loss and, therefore, cannot expect to pass his continuing wage loss on to the Respondent. Fields v. Cardinal TG Co. (LIRC, 02/16/01).

After the hearing, and after the Administrative Law Judge issued a preliminary decision finding that the Respondent had unlawfully discriminated against the Complainant, the Respondent moved to amend its answer to raise a question of failure to mitigate damages. The administrative rules relating to hearings before the Equal Rights Division provide that a complaint may not be amended less than twenty days before hearing unless good cause is shown. Although the rule dealing with answers is silent on when amendment is permitted, one may infer a twenty-day rule applies to amendments offered to raise affirmative defenses in answers as well. Further, even if sec. 802.09(2), Stats., applied to cases before the Equal Rights Division, the statute does not authorize raising entirely new, un-litigated causes of action or affirmative defenses after the conclusion of the hearing. Kalsto v. Village of Somerset (LIRC, 10/03/00).

The employer offered evidence in the form of classified advertisements showing the availability of work during the back pay period. That evidence was a “random” sample of advertisements which showed that there were 78 bartender positions and 125 waitressing positions available during the two and one half year back pay period. Biggers v. Isaac’s Lounge (LIRC, 10/29/99).

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 US Paper Converters v. LIRC, 208 Wis. 2d 523, 561 N.W.2d 756 (Ct. App. 1997).

A certified teacher who was discriminatorily refused hire as an accountant was thereafter justified in pursuing teaching rather than accounting positions. Anderson v. UW-Whitewater (LIRC, 02/16/83), aff’d sub nom. UW-Whitewater v. LIRC (Dane Co. Cir. Ct., 03/09/84).

Self-employment is an acceptable method of mitigating damages, and a rejected job applicant who became owner-operator of a tavern qualified under this method. Neuendorf Transp. v. LIRC (Dane Co. Cir. Ct., 05/07/82).

A discharged employee did not use reasonable diligence to mitigate his lost earnings where he did not seek other employment because of a belief that the nature of his discharge made him unemployable. Fruehwald v. City of Milwaukee (LIRC, 12/18/81).

The discharged employee’s actions in applying for factory jobs and working as a waitress satisfied her mitigation duty. Appleton Elec. v. LIRC (Kreider) (Dane Co. Cir. Ct., 05/12/81).

Where a job applicant made an exhaustive effort to find work before she was discriminatorily denied employment, her failure to make additional efforts should not diminish her back pay award because she was justified in believing that it would be fruitless, she had already registered with various job services and she did not have the money to travel downtown. Janssen v. Milwaukee County (DILHR, 10/12/76).