Mt. Hope line of cases is more readily applicable than the rule of Kendall.
But another conclusion that can fairly be drawn from Redemske, Pine State Bank, Kemnetz and Arneson is that the trial courts do consider the evidence of what would have happened in the future. Thus it is reasonably certain that the courts of Illinois would reject plaintiff's view that evidence of what would have happened is inadmissible to rebut plaintiff's showing of damages and would consider whether the employment would likely have terminated at a point prior to trial. Just as plaintiff may attempt to show that had the breach not occurred he would still be employed at EFS, defendant must be able to rebut that showing lest plaintiff's proof become irrebuttable. Although the proof is necessarily uncertain, as stated in Barnett, certainty is not required; the evidence must only establish a basis for assessment of damages with a fair degree of probability.
Nevertheless, it can also be inferred from the cases that the courts do not automatically acquiesce in the employer's assertion that the employee would have been fired in any event. Indeed, the contrary is apparent, that the courts are skeptical of such arguments. Certainly [ILLEGIBLE WORD] burden of proof is on the employer. [ILLEGIBLE WORD] was specifically placed on defendant in Pine River.8 It was implicitly placed there in Redemske. Procedures such as those provided in EFS's handbook are designed to establish fairness to the employee and thus to benefit the employer with an improved work force. As stated in Pine River, "Implicit in this award of lost wages to the date of trial is our recognition that the bank's disciplinary procedures confer some degree of substantive protection to the employee. Without that, the disciplinary procedures here would be virtually meaningless." Pine River, 333 N.W.2d at 632.
In light of these conclusions, the evidence must be evaluated to determine whether EFS has established that Munoz would have been fired on January 20, 1989 as EFS contends. The fact situation in the case before the court falls somewhere in the middle of the range of situations in the cited cases. The evidence is not entirely persuasive that plaintiff's employment would have continued as the courts indicated in Redemske and Lewis ; on the other hand, it is not a case where the right to terminate was apparently clear, as in Kemnetz and Arneson. It is somewhat similar to Pine River. The circumstances here reveal changes in upper management that cause uncertainty and dissatisfaction at lower levels of management. Mr. Van Der Wielen, whom Munoz was unable to satisfy, his since left EFS. Mr. Koenig, whom EFS desired to retain, left as well. Mr. Packee is no longer a regional vice president but rather has resumed his former position as sales representative. The company entirely relocated this facility within a year a Munoz' departure. Thus it is safe to infer that there was turmoil at EFS and that the [ILLEGIBLE WORD] was not caused entirely by Munoz. No employee, even a highly satisfactory one, is without blemishes that can be conveniently paraded in defense of a claim of wrongful termination. But clearly, Munoz cared about his job and had a good record prior to the events giving rise to the lawsuit.
On the other hand, the courts are not in a position to second guess management decisions concerning employees, barring violations of public policy or law. See Mitchell, 142 Ill. 2d at , 568 N.E.2d at 835 (employer's prerogative to make independent good faith judgments about employees is important to our free enterprise system). Here there is evidence that EFS was dissatisfied with Munoz as early as April, 1988 when EFS offered Munoz' job to his subordinate. Although Munoz received an annual raise and bonuses after that date, during the fall of 1988 his relationship with upper management deteriorated. Munoz's credibility is doubtful when he asserts that he had no indication that his job was in jeopardy. Specifically, this court finds him not credible when he denies the December telephone conversation with Van Der Weilen in which he was told to go home, the testimony of Packee that Munoz was disturbed enough about the situation to threaten to quit, and the testimony of Van Der Wielen at his termination indicating that he had seen it coming. The court finds no basis to infer that Van Der Weilen made the whole thing up, and in light of the testimony of all the witnesses concludes that the situation was not on an even keel at the time, suggesting that Munoz must have been aware his position was not secure. Indeed, according to Van Der Wielen, Munoz spoke to him about this very topic. Munoz clearly had the tendency at trial to shape the [ILLEGIBLE WORD] to what he thought would serve his own interest rather than what actually occurred, as he even admits at note 11 of his brief.
Although it is impossible to know how long plaintiff would have been employed had EFS followed its handbook, it can be inferred with considerable confidence that if EFS had followed the handbook Munoz would not have been fired on January 20 but rather that date would have been the initiation of the disciplinary proceedings provided therein. Even if one assumes that verbal and written warnings had been given by that date, at least a notice of suspension and counseling remained before EFS could have discharged Munoz. And one must also assume that EFS would have acted in good faith in administering its disciplinary procedures. See id. (employer may not treat promise as illusory); Osten v. Shah, 104 Ill. App. 3d 784, 786, 433 N.E.2d 294, 296, 60 Ill. Dec. 497 (3d Dist. 1982) ("In every contract both parties impliedly promise to act in good faith."); Foster Enterprises v. Germania Federal Sav. & Loan Ass'n, 97 Ill. App. 3d 22, 30, 421 N.E.2d 1375, 1381, 52 Ill. Dec. 303 (3d Dist. 1981) ("Good faith between contracting parties requires that a party vested with contractual discretion must exercise his discretion reasonably and may not do so arbitrarily or capriciously."). It is certainly conceivable that with direction and counseling, and a clear understanding that his job was on the line, Munoz would have been able to respond to the satisfaction of his superiors. Or, since other employees were shifted from one position to another, a demotion or transfer to a position Munoz could have handled more effectively might have grown out of the effort. Although these are "might-have-beens", this court believes that the courts of Illinois would impose the burden of the doubt on the breaching party rather than the non-breaching party and finds that if EFS had not breached the employment contract, Munoz would not have been terminated on January 20, 1989 and may well have continued in his employment to the date of trial.
This leaves the question whether and to what extent the amount Munoz would have earned between January 20, 1989 and the date of trial should be reduced by the amount he could reasonably have earned had he accepted a job at Preston Trucking Company. The first issue is one of fact, whether a job existed. The preponderance of the evidence is that a job was available for Munoz had he wanted it. It is more likely than not that if an offer was not made, it was not made because Munoz indicated informally that he did not want the job.
The next question is whether his failure to accept the job was an unreasonable failure to mitigate the damages resulting from EFS's breach. The doctrine of mitigation of damages requires the non-breaching party to exercise reasonable diligence to avoid his losses. The employer may reduce the amount of recoverable damages by whatever sum the plaintiff earned, or by the exercise of reasonable diligence could have earned, during the period in question. Kelly v. Chicago Park District, 409 Ill. 91, 98, 98 N.E.2d 738, 742 (1951); Mt. Hope, 139 Ill. at 79, 28 N.E. at 836 (supra note 4); Ashe v. Sunshine Broadcasting Corp., 90 Ill. App. 3d 97, 100, 412 N.E.2d 1142, 1145, 45 Ill. Dec. 560 (5th Dist. 1980). Defendant bears the burden of establishing that plaintiff failed to mitigate his damages. Id. at 100-01, 412 N.E.2d at 1145; People ex rel. Bourne v. Johnson, 48 Ill. App. 2d 307, 312-13, 199 N.E.2d 68, 71 (1st Dist. 1964), aff'd, 32 Ill. 2d 324, 205 N.E.2d 470 (1965). As stated in Williams v. Chicago Coal Co., 60 Ill. 149, 155 (1871), the discharged employee ". . . must not lie idle when it is practicable to get [ILLEGIBLE WORD] of the same general character." In Hill v. Bell Discount Corp., 39 Ill. App. 2d 426, 188 N.E.2d 517 (1st Dist. 1963), the court affirmed a ruling that the plaintiff, a semi-skilled laborer, had failed to use reasonable diligence when he did not seek work as an unskilled laborer or work that paid less than what he had been earning. In Wells v. Board of Education, 121 Ill. App. 2d 112, 257 N.E.2d 252 (1st Dist. 1970), the court reduced plaintiff's damage award by the amount of earnings she received from employment 90 miles away from her home, rejecting plaintiff's argument that to do so was unreasonable. The common law seems to impose a greater obligation to mitigate losses in breach of contract situations than in employment discrimination situations where the courts have ruled that an aggrieved person is not required to accept employment of substantially lower remuneration or status. See, e.g., Ford Motor Co. v. Equal Employment Opportunity Commission, 458 U.S. 219, 231 n. 14, 102 S. Ct. 3057, 3065 n. 14 , 73 L. Ed. 2d 721 (1982) (Title VII claimants are not required to "go into another line of work, accept a demotion, or take a demeaning position.").
The court's judgment of the facts in this case is that Munoz did not exercise reasonable diligence in foregoing the opportunity to work at Preston. The work was in the same industry and, although it was of a lower level of responsibility, the opportunity for promotion was in the picture. Munoz cannot rest on his unwillingness to move as an excuse for declining for opportunity when he holds himself out as willing to move to Wisconsin in order to accept reinstatement at EFS. For these reasons, the court concludes that plaintiff's damages must be reduced by the amount he would have earned had he accepted the opportunity at Preston and continued there through the date of trial. The calculation proffered by plaintiff (footnote 8 of his post-trial brief) appears to be an accurate calculation and results in an award of damages in the amount of $ 37,171.48.
Although most of the cases concerning unjust dismissal restrict relief to damages as discussed above, there is some authority in Illinois for reinstatement and injunctive relief where the discharge is "wrongful" (against public policy). In addition to the reinstatement ordered in Redemske, in Hartlein v. Illinois Power Co., 209 Ill. App. 3d 948, 568 N.E.2d 520, 154 Ill. Dec. 520 (5th Dist. 1991), the court affirmed the entry of a preliminary injunction to restrain the employer from discontinuing plaintiff's employment in order to avoid worker's compensation liability. Nevertheless, plaintiff has not cited a single Illinois case even suggesting that reinstatement may be an appropriate remedy for breach of employment contract. Thus, his claim for reinstatement must be denied.
Enter Findings of Fact and Conclusions of Fact and Law After Trial. The clerk is directed to enter judgment in favor of plaintiff Ricardo Munoz and against defendant, Expedited Freight, Systems, Inc., in the amount of $ 37,171.48.
JOAN HUMPHREY LEFKOW
United States Magistrate Judge
Dated: October 24, 1991