work. City of Chicago, 853 F.2d at 578; Ford Motor, 458 U.S. at 231. Plaintiff was not under a duty to accept just any job; rather, he could look for comparable jobs for which he had a reasonable likelihood of receiving an offer of employment. Gaddy, 884 F.2d at 318-19. See also City of Chicago, 853 F.2d at 578-79 (upholding plaintiff's decision to quit her job with the city Purchasing Department and look for other employment where the position was not sufficiently equivalent to that of police officer).
1. Reasonable Diligence
Determining whether a plaintiff exerted sufficient effort in locating an alternate job is one of fact, and courts do not always agree on what constitutes "reasonable diligence." In Gaddy, the employee contacted over one hundred employers, used two employment agencies, answered newspaper ads and followed leads from friends and relatives; however, she failed to pursue a "favorable response" to an employment inquiry at Kraft Foods. 884 F.2d at 318-19. The court held that this was sufficient for mitigation purposes, and noted that the employer presented no evidence that if Gaddy had pursued her employment opportunities at Kraft, there was a reasonable probability she would have received an offer. Id. at 319. See also Hutchison v. Amateur Elec. Supply, Inc., 42 F.3d 1037, 1044 (7th Cir. 1994) (plaintiff adequately mitigated her damages where, over a four-year period, she registered with the State of Wisconsin job service, attended seminars, joined a networking group, took courses to upgrade her computer skills, answered newspaper advertisements, and submitted nearly 600 resumes to prospective employers).
Indeed, the court in Reilly v. Cisneros, 835 F. Supp. 96, 101 (W.D.N.Y. 1993) also found that the plaintiff adequately mitigated his damages where he made only two job applications during his first year of unemployment and made minimal efforts while working as a temporary employee. Id. at 100-101. In finding these search efforts adequate, the court noted that the plaintiff was battling alcoholism, and that sending out resumes without knowing of actual job openings does not usually produce employment. Id. at 101. The court observed that it was the unavailability of jobs, rather than the inadequacy of plaintiff's search methods, that resulted in his inability to find comparable work. Id.
The plaintiff in Wheeler v. Snyder Buick, Inc., 794 F.2d 1228 (7th Cir. 1986), answered want ads, registered with employment agencies, and applied for various positions, but did not pursue other known opportunities with new car dealerships. Id. at 1234. The Seventh Circuit found the plaintiff's efforts sufficient, although it was "not untroubled by the [low] level of Wheeler's post-termination job-seeking activities." Id. As the court noted, "[a] diligent . . . plaintiff endeavoring to mitigate damages would at least check the want ads, register with employment agencies, and discuss job opportunities with friends and acquaintances." Id. See also Fleming, 898 F.2d at 561 (employee failed to exercise reasonable diligence to mitigate damages where he contacted only two headhunting firms in his first two years of unemployment, and turned down two or three job offers).
In this case, Plaintiff's efforts to secure alternate employment have been few and far between. From approximately 1994 to the present, he has submitted only four job applications, and merely inquired into three or four other positions.
(Coleman Dep., at 17-41.) Although he did receive some work through friends and relatives, he never checked the want-ads or registered with an employment agency. (Id.) Defendant submitted numerous pages from the Chicago Tribune classified section which listed various maintenance positions.
(Defendant's Exhibits in Opposition to Plaintiff's Petition for Back Pay (hereinafter "Def.'s Ex.") 2, C.) Plaintiff, however, failed to contact any of these employers regarding possible employment. See Wheeler, 794 F.2d at 1234 (stating that a reasonably diligent employee would at least check the want ads). Even if none of the listed positions was a legitimate opportunity for employment, Plaintiff still had an obligation to contact the potential employers and make some inquiries--an obligation, the court notes, that would typically entail merely picking up a telephone. A discharged employee can satisfy the obligation to mitigate damages despite an unsuccessful search "so long as [he] demonstrates an honest, good faith effort to locate comparable employment." E.E.O.C. v. Ilona of Hungary, Inc., 97 F.3d 204, 216 (7th Cir. 1996) (citing Smith v. Great Am. Restaurants, Inc., 969 F.2d 430, 438 (7th Cir. 1992). In this court's view, Plaintiff has not made a good faith effort to find alternate employment. Thus, CHA has met its burden on this issue.
Plaintiff points out that he earned some income while self-employed, and argues that he cannot be penalized merely because this effort proved fruitless. (Pl.'s Back Pay Petition, at 5.) The court recognizes that "self-employment can constitute employment for purposes of mitigating damages, as long as the self-employment was a reasonable alternative to finding other comparable employment." Smith, 969 F.2d at 438 (citing Carden v. Westinghouse Elec. Corp., 850 F.2d 996, 1005 (3d Cir. 1988) (emphasis supplied). Here, however, Plaintiff, a maintenance worker, has not shown that it was reasonable for him to pursue only self-employment rather than a staff position where he had no experience as an entrepreneur. In any event, there is no evidence here that Plaintiff made any serious attempts to form or market his own business. The single decades-old case Plaintiff cites in support of his argument confirms this court's opinion. In Crabtree v. Elizabeth Arden Sales Corp., 105 N.Y.S.2d 40 (1951), aff'd, 279 A.D. 992, 112 N.Y.S.2d 494 (1952), aff'd, 305 N.Y. 48, 110 N.E.2d 551 (1953), the plaintiff was originally hired by the defendant as a sales manager. After his termination, he began operating his own business, an option the court found reasonable given the "nature of his prior employment and the fact that a position in the nature of that held by him was not too readily or easily obtainable." Id. at 45. There is no basis here to excuse Plaintiff from seeking maintenance or custodial work.
2. Job Comparability
Plaintiff claims that most of the jobs listed in Defendant's want-ads exhibit were not comparable to his position with the CHA and, therefore, Defendant has failed to make its showing on this issue. Specifically, many of the listings were for janitors or custodians, yet Plaintiff had worked in a more prominent "crew-supervising" capacity. (Pl.'s Back Pay Petition, at 6.) The court recognizes that Plaintiff had advanced to a supervisory role with the CHA, but notes that he predominantly engaged in custodial and janitorial tasks. At trial, Plaintiff testified that he was first promoted to his position as maintenance supervisor (in a temporary capacity) when he performed well on a test designed to measure his qualifications to do repair work. (Tr., at 369.) Plaintiff further stated that his permanent promotion to maintenance supervisor resulted from his "knowledge of supplies, working out the time schedules, [and] my relationship with the tenants." (Id.) Indeed, the sporadic handyman work he performed following his discharge involved just such hands-on repair and maintenance skills. (Def.'s Ex. 2; see supra note 8.) Plaintiff's supervisory role notwithstanding, the court finds the positions listed in the Tribune to be sufficiently comparable to Plaintiff's maintenance job with the CHA. Many of the positions sought a supervisory employee; moreover, Plaintiff has been out of work for approximately four and a half years and has certainly reached the point where a reduction in expectations is required. See Hunter, 797 F.2d at 1428 (finding that the plaintiff's failure to find alternate employment for five years was insufficient for mitigation purposes, and noting that "at some point people must put their legal troubles behind them and get on with their lives").
3. Likelihood of Obtaining Employment
In addition to job comparability, Defendant must show that Plaintiff had a reasonable likelihood of actually getting the available position. Gaddy, 884 F.2d at 318-19. As noted, Defendant submitted numerous pages of advertisements from the Chicago Tribune listing job opportunities for maintenance personnel. (Def.'s Ex. 2, C.) In addition to his hearsay objection, Plaintiff contends that these want-ads do not establish either that such jobs actually existed, or that Plaintiff had a reasonable likelihood of securing one of them. (Pl.'s Back Pay Petition, at 6.) At least some case law supports this position. See Mueller v. First Nat'l Bank of Quad Cities, 797 F. Supp. 656, 658 (C.D. Ill. 1992) (admitting defense exhibits of job listings in newspapers and magazines, but requiring proper showing that the positions were available and represented actual job openings for the plaintiff); Ryder, 983 F.2d at 715 (finding that the defendant's reliance on help-wanted advertisements as evidence of job availability did not establish that any employment opportunities were specifically available or rejected by the plaintiff).
The court is not persuaded by Plaintiff's claims that he did not want to mislead potential employers by accepting employment with the knowledge that he may be returning to the CHA shortly thereafter. (Id., at 41-42.) Nothing prevented him from accepting a job pending his actual reinstatement and, when appropriate, choosing whether he wanted to keep his new position or return to the CHA. Equally unconvincing are Plaintiff's claims that no one would hire him in light of the circumstances surrounding his discharge. He prevailed at trial, and there is no indication that the CHA intended to sabotage his search efforts. Compare Smith, 969 F.2d at 439 (jury could conclude plaintiff's effort to find comparable work would be fruitless because his supervisor testified he would tell prospective employers that plaintiff simply walked off the job without notice). In any event, Plaintiff did not exert sufficient effort locating a job to lend any support to this theory. See Hunter, 797 F.2d at 1427 (noting that plaintiff might have had difficulty securing a new job because he was fired for falsifying records, but finding that his job search efforts were "not sufficiently assiduous to test this hypothesis").
This court is reluctant to reward Plaintiff's lack of industry. Nevertheless, the two-pronged test set forth in the case law requires Defendant to make a showing that further efforts on Plaintiff's part might have succeeded. All that Defendant has offered to meet this burden are copies of want-ads. No case law cited by Defendant nor located by this court establishes that such a showing, without more, is adequate to meet Defendant's burden. Nowhere does the court find evidence of the specific job qualifications sought by the potential employers and how they compare to Plaintiff's skills and background. Nor did Defendant present evidence from any potential employer that an application from Plaintiff would have resulted in an offer. Thus, although Plaintiff was undoubtedly remiss in his efforts to mitigate his damages, Defendant has failed to adequately demonstrate that Plaintiff had a reasonable likelihood of receiving a job offer had he contacted the employers in the newspaper. Although Plaintiff appears to believe that he was qualified to do "anything I want to" in the maintenance field (Coleman Dep., at 41), Defendant presented no evidence that potential employers shared that assessment. The court accordingly awards Plaintiff $ 88,261.95 in post-judgment back pay--$ 94,261.95 in lost wages and benefits minus $ 6,000 in income offsets.
C. Post-Judgment Interest
In addition to the supplemental back pay, Plaintiff also seeks post-judgment interest on the $ 155,000 jury award--an amount equaling at least $ 17,267.42. Under § 1961(a) of Chapter 28 of the U.S. Code, post-judgment interest is awarded automatically to civil litigants recovering money judgments in federal court. Student Loan Marketing Ass'n v. Lipman, 45 F.3d 173, 176 (7th Cir. 1995); Partington v. Broyhill Furniture Indus., Inc., 999 F.2d 269, 274 (7th Cir. 1993); 28 U.S.C. § 1961(a).
The interest runs from the date of entry of the judgment in favor of the plaintiff. Graefenhain, 870 F.2d at 1211; Ohio-Sealy Mattress Mfg. Co. v. Sealy, Inc., 585 F.2d 821, 845 (7th Cir. 1978). The court agrees that Plaintiff is entitled to post-judgment interest as provided by statute; indeed, Defendant does not specifically challenge this request.
Both parties in this case have failed to exercise sound judgment and due diligence. Defendant stubbornly refused to grant Plaintiff a conditional return to employment pending appeal; Plaintiff unjustifiably refrained from pursuing reasonable employment opportunities. The court nonetheless awards Plaintiff $ 88,261.95 in back pay for the period extending from the date of the verdict to the date of this decision in light of Defendant's failure to provide sufficient evidence that, had Plaintiff made appropriate efforts, he might have actually received job offers. Judgment will be entered in that amount, plus the $ 155,000 awarded by the jury. Post-judgment interest accrues automatically by statute.
Dated: November 22, 1996
REBECCA R. PALLMEYER
United States Magistrate Judge