In the five plus years of this blog, it’s rare to find topics that I haven’t covered, at least minimally.
One such topic, though, is the notion of “mitigation of damages”. It is a concept found in lots of cases, but it has particular importance in employment discrimination cases.
An employee who claims he (or she) was wrongfully terminated because of his age, for example, cannot sit by and collect damages if he wins an age discrimination lawsuit. Rather, he must try to mitigate his damages, typically by conducting a job search to find comparable work.
Put another way, if a employee is laid off on a Monday, but is hired by a new employer on Tuesday for the same salary, the employee probably hasn’t suffered any real damages.
Last week, a federal court in Connecticut was confronted with the question of whether an expert can testify about a terminated employee’s failed job search and to what extent.
In Castelluccio v. IBM (download here), the employer wanted an expert to testify that the terminated employee had “not conducted a diligent pursuit of full-time, permanent employment opportunities to find a job.”
The court ruled, in essence, not so fast. The expert cannot testify that the employee did not conduct a “diligent” job search because that is an “ultimate question in this case which is for the jury to decide.” He is also precluded from testifying that the plaintiff should have found comparable employment within 9-18 months, because it is not “reliable.”
But the expert can testify about the job search itself, including the “nature and degree of efforts which typify an average or successful job search…and how [the plaintiff’s[ efforts compare to what are typical — or successful efforts.”
Thus, testimony that compares the plaintiff’s job search efforts to the industry standard is permissible, so long as it doesn’t go beyond that.
What is also interesting about the case is that another federal court 12 years earlier, had placed the same limits on the testimony by the same expert.
For employers, the case is a useful example of what type of evidence is required of a terminated employee to mitigate his damages, and what type of testimony can be elicited by an expert to rebut that evidence.
At a minimum, employers faced with a termination claim should consider whether mitigation of damages will be a viable defense that may cut off damages at some point.