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COLEMAN v. LANE

November 22, 1996

DAVID COLEMAN, III, Plaintiff,
v.
VINCENT LANE, et al., Defendants.



The opinion of the court was delivered by: PALLMEYER

 Plaintiff David Coleman, III alleged that his employer, Defendant Chicago Housing Authority (the "CHA"), deprived him of his liberty and property interests in his employment without due process of law in violation of 42 U.S.C. ยง 1983. A jury awarded Plaintiff $ 155,000 in damages and, on April 29, 1994, this court ordered Defendant to reinstate Plaintiff to a position of comparable responsibility, with the seniority and benefits he would have received absent his discharge. The court further awarded Plaintiff back pay for the time from the entry of the jury verdict to the date of his reinstatement. (See Memorandum Opinion and Order, Coleman v. Lane, 1994 U.S. Dist. LEXIS 5712, No. 92 C 2726, 1994 WL 171446, at *3 (N.D. Ill. May 2, 1994.)

 Following this decision, Defendant filed, and Plaintiff responded to, several post-verdict motions addressing the validity of the jury's findings. *fn1" After this court concluded that the jury's verdict must stand, Plaintiff moved for an award of back pay and post-judgment interest, asking that the court make him whole not only for the pay lost between the jury verdict and the entry of judgment, but also for the time since the entry of judgment that the case remained before this court. On May 23, 1996, Defendant CHA filed a notice of appeal. One month later, however, CHA moved to dismiss that appeal, recognizing that this court's failure to award back pay in a sum certain rendered the judgment nonappealable.

 BACKGROUND3

 Plaintiff seeks to add $ 105,529.37 to his initial $ 155,000 judgment--$ 94,261.95 in lost wages and benefits (accruing since the entry of the jury verdict), plus "at least" $ 17,267.42 in interest, less $ 6,000 in income offsets. *fn4" (Plaintiff's Reply in Support of Petition for Back Pay & Interest (hereinafter "Pl.'s Back Pay Petition"), at 8.) This request apparently stems from the fact that (1) Plaintiff has yet to be reinstated despite this court's April 29, 1994 order, and (2) the court granted Plaintiff back pay up to his date of reinstatement. (See Memorandum Opinion and Order, Coleman, 1994 WL 171446, at *3.) Defendant has refused to give Plaintiff his job back, choosing to wait until the completion of the appeals process. At the same time, Plaintiff, unsuccessful in securing alternate work, has remained unemployed. There is evidence that Plaintiff earned some income while self-employed, but these efforts proved largely unprofitable. (Pl.'s Back Pay Petition, at 5.) Defendant contends that Plaintiff has failed to mitigate his damages as required in wrongful discharge cases. (Defendant's Objection to Plaintiff's "Amended Calculation of Back Pay & Interest" (hereinafter "Def.'s Objection") P 2-3.) Plaintiff argues that Defendant has failed to meet its burden of proving that Plaintiff's efforts to secure interim employment were inadequate. (Pl.'s Back Pay Petition, at 2-5.)

 DISCUSSION

 This court must now determine whether Plaintiff is entitled to supplemental back pay, or whether he forfeited this right by failing to mitigate his losses. Before turning to the specific facts in this case, the court will briefly review the law of mitigation of damages.

 A. Mitigation of Damages

 By their very nature, wrongful discharge cases necessarily involve employees who suddenly find themselves out of work. These employees may be tempted to forego seeking new employment until the case is resolved because of the possibility of getting their jobs back or obtaining monetary judgments. See, e.g., Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1428 (7th Cir. 1986) (reducing plaintiff's back pay award because he left the labor force apparently "in the hope of someday being made whole by a judgment at law"). Even where the employee is successful in his claim against his employer, however, courts recognize that the employee cannot remain idle for the duration of the suit; rather, he must make affirmative efforts to secure alternate employment. Graefenhain v. Pabst Brewing Co., 870 F.2d 1198, 1202 (7th Cir. 1989) (citing Ford Motor Co. v. E.E.O.C., 458 U.S. 219, 231, 73 L. Ed. 2d 721, 102 S. Ct. 3057 (1982) for the general rule that a discharged employee must mitigate damages by using "reasonable diligence in finding other suitable employment").

 Once a plaintiff has established that his employer unlawfully terminated his employment, a presumption in favor of full relief arises. Gaddy v. Abex Corp., 884 F.2d 312, 318 (7th Cir. 1989). The plaintiff must establish, nonetheless, the amount of damages (in the form of lost salary and benefits) to which he is entitled. Fleming v. County of Kane, 898 F.2d 553, 560 (7th Cir. 1990); Taylor v. Philips Indus., Inc., 593 F.2d 783, 787 (7th Cir. 1979). The employer may then assert as an affirmative defense the employee's failure to mitigate his losses. Fleming, 898 F.2d at 560. Under the Seventh Circuit's jurisprudence, proof of failure to mitigate requires a two-pronged showing: (1) that "the [plaintiff] was not reasonably diligent in seeking other employment," and (2) "that with the exercise of reasonable diligence there was a reasonable chance the [plaintiff] might have found comparable employment." U.S. v. City of Chicago, 853 F.2d 572, 578-79 (7th Cir. 1988) (citation omitted); Fleming, 898 F.2d at 560; Gaddy, 884 F.2d at 318 (citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 421, 45 L. Ed. 2d 280, 95 S. Ct. 2362 (1975)).

 A plaintiff's duty to mitigate damages does not require him to "go into another line of work, accept a demotion, or take a demeaning position." Graefenhain, 870 F.2d at 1202 (quoting Ford Motor, 458 U.S. at 231). Furthermore, an employee "need not seek employment which is not consonant with his particular skills, background, and experience or which involves conditions that are substantially more onerous than his previous position." Id. (quoting Ford Motor, 458 U.S. at 231 n. 16) (internal citations omitted). This does not mean, however, that the plaintiff may spend an insufficient amount of time and effort looking for work. See Payne v. Security Sav. & Loan Ass'n, F.A., 924 F.2d 109, 111 (7th Cir. 1991) (upholding reduction of plaintiff's back pay award for two-year period during which his job search efforts consisted of spending merely "two or three days a month" and "[a] few hours a week, maybe a month" looking for employment).

 B. The Parties' Arguments

 1. Rule 11(a)

 With this background in mind, the court now turns to the parties' arguments in this case. Defendant first challenges Plaintiff's amended calculation as a violation of FED. R. CIV. P. 11(a). Specifically, Defendant maintains that the document fails to comply with the requirements of Rule 11(a) because it is unsigned, unsupported and unexplained. *fn5" ...


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