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What is the duty to mitigate damages?

To obtain economic damages (lost pay and benefits) in an employment-related lawsuit, you must show that you tried to mitigate your damages, i.e., you searched for comparable employment.  The duty to look for comparable employment does not require the plaintiff to go into another line of work, or accept a demotion.

A discrimination or retaliation plaintiff has not failed to make a reasonable effort to mitigate damages where she refuses to accept employment that is an unreasonable distance from her residence.  Donlin v. Philips Lighting North America, 581 F.3d 73, 89 (3rd Cir. 2009); Rasimas v. Mich. Dept. of Mental Health, 714 F.2d 614, 625 (6th Cir. 1983).  In assessing a defendant’s failure-to-mitigate defense, a court will only look at the jobs available in this “relevant geographic area.”  Quint v. A.E. Staley Mfg. Co. , 172 F.3d 1, 15 (1st Cir. 1999).

In the Second Circuit, two alternative paths exist for employers to prove failure to mitigate. Dailey v. Societe Generale, 108 F.3d 451, 456 (2d Cir. 1998). An employer may prove that an employee failed to mitigate by “establishing (1) that suitable work existed, and (2) that the employee did not make reasonable efforts to obtain it.”  Or the employers can show that the employee made no reasonable efforts at all to seek comparable employment. Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 54 (2d Cir. 1998).  The employer bears the burden of proving a failure to mitigate.

Jason Zuckerman, Principal of Zuckerman Law, litigates whistleblower retaliation, qui tam, wrongful discharge, and other employment-related claims. He is rated 10 out of 10 by Avvo, was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2015 and selected by his peers to be included in The Best Lawyers in America® and in SuperLawyers.