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Holloway v. Dodge

United States District Court, S.D. Ohio, Western Division

August 19, 2019

Frederick Holloway, Plaintiff,
v.
Kings Dodge, et al., Defendants.

          OPINION & ORDER

          Hon. Michael R. Barrett United States District Judge

         This 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).

         I. BACKGROUND

         Plaintiff 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.

         A few 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.

         While 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.

         II. ANALYSIS

         A. Summary Judgment Standard

         Federal 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. at 324).

         B. Mitigation of damages

         Under 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 Cir. 2018).

         As a 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 ...


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