61 Ohio St. 2d 353 | Ohio | 1980
Lead Opinion
In State, ex rel. Martin, v. Columbus (1979), 58 Ohio St. 2d 261, paragraph two of the syllabus, this court held that a civil service employee who is unlawfully discharged is entitled to his lost compensation, but “is subject to have his claim reduced by the amount he earned, or in the exercise of due diligence, could have earned in appropriate employment during the period of exclusion.” In the third paragraph of the syllabus in Martin, supra, we held that this question of mitigation of damages “is an affirmative defense and the burden of proof on that issue resides upon the employer responsible for the wrongful discharge.” Thus, the issue before us is whether appellant city of Columbus has met its burden of proof.
Accordingly, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
Dissenting Opinion
dissenting. I dissent from the majority herein because the record clearly establishes that the appellee had not exercised a reasonable degree of diligence in seeking other appropriate employment. Here it was shown that a number of other municipalities had conducted examinations for firefighter positions, but that the appellee had not chosen to compete for these positions.
The fact that he was, during such period, involved in litigation attempting to be reinstated provides no reasonable excuse for not competing for such other positions. Further, it appears that in 1976, the appellee had made his decision to change his vocational approaches by becoming a full-time law student at Ohio State University which seems to be inconsistent with his continued availability for employment as a firefighter, or other full-time employment. However, appellee conceivably could have worked additional part-time in order to mitigate any claimed lost wages.