United States District Court, S.D. Ohio, Western Division
OPINION & ORDER
Michael R. Barrett United States District Judge
matter is before the Court upon Plaintiff's Motion for
Summary Judgment Regarding Defendants' Mitigation
Defense. (Doc 48). Defendants filed a Response in Opposition
(Doc. 49), and Plaintiff filed a Reply (Doc. 50).
bring claims pursuant to the Age Discrimination in Employment
Act (“ADEA”) and Ohio law based on
Defendants' failure to rehire him into the position of
salesperson in Defendants' Chrysler dealership.
months after he was not rehired by Defendants, Plaintiff
applied for and was hired into a position as a salesperson
selling cars at Clay Cooley Nissan. (Doc. 10, Frederick
Holloway Dep., PAGEID# 65). Plaintiff began working at Clay
Cooley in October of 2015. (Id. at PAGEID# 66).
However, in February 2016, Clay Cooley sold the dealership to
Jeff Wyler. (Id. at PAGEID# 65). Jeff Wyler
instituted new job responsibilities, including a requirement
that salespersons be on call twenty-four hours a day, seven
days a week. (Id.). Plaintiff's obligations as a
pastor and caretaker for his grandchildren made it difficult
to be on call at all times. (Id.) Therefore, after
two weeks of working for Jeff Wyler, Plaintiff left his job
at Jeff Wyler. (Id. at PAGEID# 65-66). Defendants
argue that Plaintiff failed to mitigate his claimed damages
by remaining in that position.
Defendants failed to raise the affirmative defense of failure
to mitigate damages in their responsive pleadings, this Court
permitted Defendants to amend their answer to add the
affirmative defense. (Doc. 44). Plaintiff now moves for
summary judgment on Defendants' affirmative defense of
mitigation of damages.
Summary Judgment Standard
Rule of Civil Procedure 56(a) provides that summary judgment
is proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” The moving party has the
burden of showing an absence of evidence to support the
non-moving party's case. Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986). Once the moving party
has met its burden of production, the non-moving party cannot
rest on his pleadings, but must present significant probative
evidence in support of his complaint to defeat the motion for
summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248-49 (1986). In reviewing a summary judgment
motion, courts are required to view the facts and draw all
reasonable inferences in the light most favorable to the
nonmoving party. Scott v. Harris, 550 U.S. 372, 378,
127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citing United
States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct.
993, 8 L.Ed.2d 176 (1962)). This framework applies equally to
a defendant's affirmative defenses. Resolution Tr.
Corp. v. Metropole Bldg. Ltd. P'ship, 110 F.3d 64
(6th Cir. 1997) (“Appellants cite no authority whatever
(which is not surprising since there is none) in support of
their claim that because in this case the moving party is the
plaintiff, the rules are different.”); EEOC v.
Skanska USA Bldg., Inc., 80 F.Supp.3d 766, 780 (W.D.
Tenn. 2015) (“When the nonmoving party in a summary
judgment motion bears the burden of proof at trial, Rule 56
requires them to ‘go beyond the pleadings' and
designate specific facts showing that there is a genuine
issue for trial.”) (citing Celotex, 477 U.S.
Mitigation of damages
the ADEA, an employee has a duty to mitigate his damages by
seeking new employment. Skalka v. Fernald Envtl.
Restoration Mgmt. Corp., 178 F.3d 414, 426 (6th Cir.
1999). The Sixth Circuit employs a two-step test when
analyzing a mitigation of damages defense:
The employee bears the initial burden of proving damages with
“reasonable certainty.” Blackwell v. Sun
Elec. Corp., 696 F.2d 1176, 1192 (6th Cir. 1983). If he
meets that requirement, the employer must show that the
employee failed to mitigate damages by showing that (1)
similar positions were available; and (2) the employee did
not “use reasonable care and diligence in seeking such
positions.” Rasimas v. Mich. Dep't of Mental
Health, 714 F.2d 614, 624 (6th Cir. 1983).
Gunter v. Bemis Co., Inc., 906 F.3d 484, 490 (6th
threshold matter, Defendants argue that mitigation of damages
is not a proper subject for summary judgment because whether
a plaintiff has exercised reasonable diligence in mitigating
his or her damages is an issue of fact. The Court notes that
while it is typically raised by the employer, mitigation of
damages is routinely addressed on summary judgment.
See, e.g., Harris v. Heritage Home
Health Care, 939 F.Supp.2d 793, 804 (E.D. Mich. 2013)
(rejecting employer's argument on summary judgment that
plaintiff failed to mitigate her damages); Finch v.
Xavier Univ., 689 F.Supp.2d 955, 969 (S.D. Ohio 2010)
(denying employer's motion for summary judgment because
there was no evidence in the record that substantially
equivalent work was available to plaintiffs); Dawson v.
Qube Corp., 6 F.Supp.2d 677, 685 (N.D. Ohio 1998)
(denying employer's motion for summary judgment on the
issue of mitigation of damages because the
“reasonableness” of the ...