*1
Justice took no Underwood, Jr., plaintiff-appellant. M. for the Otis defendant-appellee. for the Karl Reibel determine the upon J. We are called Brickley, duty scope plaintiffs mitigate discriminatory under discharge suit the context of MCL 37.1101 et Handicappers’ Rights Civil Act. seq. seq.\ 3.550(101) MSA et
i
employed
general
as a
laborer
stor-
defendant,
underground
a manufacturer of
eye
lost an
on
and waste tanks. The
age
in an incident not related to his
August 13, 1989,
reported
Tank. He
back to Clawson
work at Clawson
physician
with a note from his
Tank one month later
was able to return to work. At this
stating that he
by the defendant.
point, however,
discharged
he was
*4
of the defend-
encouragement
With the
and assistance
dis-
payments under
ant,
plaintiff began receiving
disability
He continued to receive
ability insurance.
immediately after he was fired. For six months in temporary job 1990, he held a at Cranbrook School, earning August $6 began an hour.1 In of 1990, he working Landscaping Company, for the Barkman earning working $5 an hour and often in excess of forty job, hours a week. This was a seasonal so the plaintiff was out of work in the winter, but was year rehired Barkman the next and in 1992 as a supervisor earning August $6 an hour. Between February approximately 1993, the made fifty job inquiries landscape companies, gas sta- employers. During period, tions, and similar jobs held several short-term, odd in addition already to those described. February plaintiff began working 1993, the in a permanent position
full-time, at Cranbrook School as janitor earning along $7.46 an hour, with health pension, care, and other benefits.
During period following discharge, pursuing legal plain- was also remedies. The grievance, seeking tiff filed a reinstatement at Claw- January Tank, son and, on 20, 1990, an arbitration panel long ordered that he be reinstated, as as his rehiring displace employees greater would not seniority. posi- The defendant claimed that no such tion was available, and refused to reinstate the plaintiff. hour, $7.42 along Plaintiff had pension earned an with health and ben efits, at Clawson Tank. The was a member of the Teamsters employed by
Union while the defendant. *5 Tank Co v Clawson
Opinion
the Court
to enforce
lawsuit, seeking
plaintiff
The
then filed
September 11, 1991, the
On
arbitration award.
the
com-
amend his
the
to
trial court allowed
Handicap-
the
of action under
plaint to assert
cause
1992,
plain-
the
August
Civil
Act. On
pers’
Rights
of the
hearing that, because
tiff stated at a motion
and the lack of
hostility
litigation,
increasing
only be seeking
he
parties,
between the
would
trust
monetary
and
wanted reinstatement
relief,
longer
no
that reinstate-
Thus,
Tank.
the court ruled
at Clawson
remedy,
on
an available
and
longer
ment was no
this rul-
28, 1992,
judge
October
the circuit
declared
law of the case. The
did
ing
be the
correspond
ruling.
with this
complaint
amend his
23, 1992,
and
September 18, 1992,
On
on October
plaintiff, purport-
mailed
to the
the defendant
letters
edly
him
work. The
did not
recalling
parties dispute
respond
letters,
to these
the
actually
and,
so,
existed
if
whether
the
offered
plaintiff.
actually
whether it was
available to the
began
April
A
bench trial
the circuit court
testimony
plain-
regarding
1994. The court heard
firing,
find
both from
tiffs efforts to
work
his
experts. The
and from the defendant’s
testimony from
sides regarding
court also heard
both
Septem-
genuineness
defendant’s
plaintiff.
plain-
to the
The
ber/October 1992
offer
expert
evidence that
amount
presented
tiff’s
pay
$46,729,
and that
lost
plaintiff was
lost
the amount of front
January
the trial court ruled for the
$76,516.
In
duty
to miti-
that he had fulfilled
plaintiff, finding
$130,439.
him
and awarded
gate damages
The Court further held that “the trial pay August court should have off cut job paying when $5 took a seasonal an hour company landscaping admittedly stopped at a and employment.” seeking p (emphasis other Id., original). according The trial count’saward of was, front Appeals, clearly to the Court of erroneous on two grounds. September/October First, the defendant’s 1992 offer of to the unrea- sonably plaintiff. refused Such a for- refusal plaintiff’s right pay. pp feits the Id., 290-291, front citing Chrysler Corp, Rasheed v 132; Mich v Clawson Tank Co Morris “the trial court’s award Second, 19 (1994). 517 NW2d February 1993, when period after of front for the clearly erro- employment, was obtained like damages incurred no because neous Id., p 291. that time.” Court,
Plaintiff to this appeal leave to sought Mich 853 (1998).2 leave. 457 granted we decision as reverse the Court We now set forth below.
n doctrine that seeks legal Mitigation from arising harm minimize economic wrongdoing. tort, person of con- committed a breach
“Where one
has
another,
wrong against
it
tract,
legal
is incumbent
or other
upon
reasonable under
use such means as are
the latter to
damages.
minimize the
to avoid or
the circumstances
any
damage
person
item of
wronged cannot
recover
Company,
108659. The issues are
v Clawson Tank
No.
reversing
(1)
the trial
to:
Did the Court of
err
limited
*7
landscape company
finding
with
that defendant’s
court
purposes
reasonably
job he held with defendant for
similar to the
Appeals
mitigation
damages? (2)
in
the Court of
err
of
Did
reasonably mitigated
finding
reversing
that
the trial court’s
higher paying
damages
look for
work
because
failed to
landscape company? (3) Did
he had a full-time
with the
while
finding
Appeals
reversing
trial court’s
err in
the Court of
plaintiff
attempt
to return to
as of and after his
was not disabled
September,
(4)
err in
Did the Court of
1989?
work
damages
reversing
finding
suffered
the trial court’s
pay?”
meriting
(5)
err
an award of “front
Did
plain
position
finding
offered to
fact that the
that defendant
as
pre
1992,
genuine position? (6)
defendant fail to
was a
Did
tiff
findings
relating
in its
whether the trial court erred
serve issues
post-judgment
or
motion for new trial
when it did not file a
of fact
notwithstanding
judgment
the trial court?
the verdict with
459 Mich which could thus have been avoided.”
v Gibraltar
[Shiffer
Ed,
School Dist Bd
197;
It must be remembered, however, that the wrongfully against here was discriminated when he was fired the defendant. 221 Mich 284-286.It inappropriate require would be him to make all efforts to resulting eliminate the economic wrongdoing. only from required Rather, he is make efforts that are reasonable under the circum- employment. supra, p stances to find Rasheed, 124.A plaintiff who does not make such efforts loses the right damages. to claim full back as Id. This required Court has noted that “a claimant to make mitigate damages reasonable efforts to is not held to highest diligence. standards of . . . ‘[T]he claim- ant’s require burden is not onerous, and does not him ” mitigation.’ to be supra, p successful in Rasheed, quoting Dep’t Rasimas v Mental Health, 714 *8 265 Co v Tank Clawson Opinion of the Court 950 den 466 US 1983), cert (CA 6, 624 F2d (1984).3 to the obliges rule also mitigation substantially offered, that
accept,
employment
if
plaintiff was fired.4 See
which the
to that from
similar
231-232;
S Ct
US
102
EEOC,
458
Ford Motor Co
mitiga-
This
aspect
3057;
(1982).
73 L Ed 2d
of the
interest
rule balances the
tion
job in order
unacceptable
accept
to
an
being forced
pay,
the interests
right
against
to maintain
to
public
avoiding
unneces-
the defendant and the
Supreme
States
sary
loss. As the United
economic
requirement can-
explained,
mitigation
Court has
accept employ-
to
a
to
not be construed
force
particularly
demeaning,
he or
finds
ment
that
she
unacceptable.
or
inconvenient,
otherwise
unemployed
underemployed claimant need not
or
[T]he
demotion,
accept
work,
or take a
go into
line of
a
another
right
backpay if
position,
demeaning
he forfeits his
[but]
substantially equivalent
job
the one he was
he refuses
supra, pp
Co,
Motor
denied.
231-232.]
[Ford
Thus,
to mitigate damages,
in order
cir-
are reasonable under the
must make efforts that
the economic harm caused
to minimize
cumstances
employment of
and, if offered
wrongdoer;
backpay/continued
approach of state
on the issue of
“The
courts
Rasheed,
harmony
backpay
with
utilized
the federal courts.”
is in
supra, p 123.
“like-
aspect
rule is often referred
as
This
proving
test,”
the burden
because the defendant has
“like
are
which
fired
and the
from
offered
employment.”
In of these we now the examine holdings Appeals. of the Court of
A isAs made evident from this discussion of doc- the mitigation damages, Appeals trine of of applied holding an erroneous law rule of in “the plaintiff’s evidence showed that own efforts to secure employment similar were not reasonable.” 221 Mich App 287. collapsing
The Court of
erred in
the two
aspects
mitigation
of the doctrine of
into one
“In
test:
mitigate damages,
to
order
must
a make
jury
properly
The standard
instruction
states this rule of law:
seeking
accepting
Whether the
reasonable
or
particular employment
question
you
However,
is a
for
to decide.
obligated
accept
employment
the
is
an offer of
which is
determining
of “a like
nature.”
whether
is of “a like
nature,” you may consider,
example,
type
work,
for
of
worked,
compensation,
security, working
hours
condi-
tions,
employment.
and other conditions of
[SJI2d 105.41.]
Tank Co
v Clawson
employ-
‘like’
effort to secure
reasonable, good-faith
defined “like
of
Id.6 The Court
ment.”
hours,
type,
“work that is similar
employment” as
Id.
working
conditions.”
tenure,
wages,
to search
require
find no reason
We
of
by the Court
as defined
employment,”
“like
The sole
mitigate damages.
in an effort
Appeals,
courts,
public,
and the
defendant,
interest of the
employment sought
type
in the
in avoid-
parties have
interest
those
is the
mitigation
supra, p
Shiffer,
loss. See
unnecessary economic
ing
permeat-
is a thread
principle
“The
part
...
it
jurisprudence
the entire
ing
”
consequences,’
‘avoidable
principle
broader
much
*10
a
Thus, while
supra, pp 123-124.
Rasheed,
in
quoted
of
object
to the “reasonableness”
may
that the
typical
jobs
of the
compensation
amount of
the “work conditions”
mitigation,
in
plaintiff seeks
are relevant
App 287,
Mich
work,”
221
“type
no
Furthermore,
there is
only
to the
seeker.
with
employment
find
that
requirement
lost.7
of the
equivalent
to that
compensation
6
Inc,
App
Fabricating,
Dep’t
Rights
Tube
148 Mich
Civil
v Horizon
for
633, 639;
(1986),
the Court of
the case cited
As I, noted the “like test exists largely protection plaintiff, shielding for the having accept unacceptable job him from an preserve right back-pay order to ato award. Ford supra, pp Co, Motor 231-232.The Court of restatement of the doctrine converts it into heightening, legiti- sword for the defendant, to no requirements end, mate must meet in successfully mitigate damages. order to Such a heightened particularly inappropriate standard is given Handicappers’ Rights Civil Act, like the Rights seq.-, Civil 3.548(101) Act, MCL 37.2101et MSA seq., Rights et and title VHof the federal Civil Act, is a primary goal remedial act, the of which “is to end dis- supra, p (emphasis crimination.” Ford Co, Motor original); supra, pp in the see Rasheed, 118-119. *11 particular job plaintiff and advancement within a if the remained that job protracted period. example, for a might For a factfinder find it “rea- job sonable” salary for a to remain in a with a much lower than job, great opportunity the advancement, earlier if there is for whereas the might factfinder not find it reasonable for the to remain in such a long time, for a if there is little or no chance for advancement. If the long, however, does not remain in opportunity for the for plaintiff’s advancement has little relevance to the reasonableness in seek- ing job. accepting and that 269 Co v Tank Clawson joba was required to find that was he with the “reasonably to the one that held similar” whether question is Rather, the relevant defendant. mitigate efforts” to plaintiff made “reasonable the noted pp 123-124. As Rasheed, supra, damages. efforts plaintiff’s whether the above, question the fact,8 of and the is one for the trier were reasonable plain- the proving the burden of that defendant has Id. were unreasonable. efforts at tiff’s the properly the allocation of judge The trial stated “ has that the proof, of found burden [defendant for applied this burden. Plaintiff failed to meet was various areas and able to obtain employment ”9 To the was of a ‘like nature.’ employment that miti- plaintiff’s found that Court of extent the plaintiff’s unreasonable because the efforts gation of a and Clawson Tank were not jobs at Barlarían must be nature,” Court was error and “like reversed.
B “plain- The Court held that because the of basically work stopped looking August for tiff case, judge fact her Because the sat as the finder of in this circuit appli findings the “In the are reviewed under erroneous standard. special opportunity principle, regard given to the of this shall be cation credibility appeared judge the who trial court witnesses 2.613(C). it.” before MCR necessary thought trial that it It is unclear whether the court was nature,” employment committing plaintiff to “like find thus legal Appeals, error Court of or whether the trial court same as the simply characterizing that the in fact obtained. supports case, finding failed conclusion defendant either mitigate plaintiffs were “Una show that the efforts “unreasonable.” 186, 191, error,” Korneffel, 5; Flynn n NW2d 249 Mich ble to find uphold (1996), did not court’s we the trial conclusion proof. its burden meet *12 270 256 459 Mich
Opinion of the Court 1990,” App 288, back-pay award should off” this have been “cut as of date. Id. This holding upon misapplication relies of principles doctrine of discussed above. Appeals of opined
The Court that the trial “even basically court acknowledged stopped work,”10 trial looking id., observing for court’s finding plaintiff accepted landscaping job,
that once he had no obligation employment. making look for “like” statement, implicitly acknowledged trial court virtually stopped seeking employment had but that authority he was to do entitled so. There is no for such a p proposition. [Id., n 2.] We reiterate that obligation had no employment” seek “like as defined Appeals. Rasheed, supra, p 123; see Mich 287. question plaintiff’s The whether efforts to miti- gate were reasonable under the circum- stances is for the of Rasheed, one trier fact. supra, p 124. 10We note that the evidence the trial before court did not show that the
plaintiff stopped looking August for as work 1990. Court of Appeals “[p]laintiff apparently stated that did look work for some in the landscaping, off-season from because the evidence showed that he took a temporary job Id., p off-season.” 288. The Court of February spring plaintiff] also noted “that from only applied to the [the approximately fifty at . businesses . . .” Id. parties stipula- The Court of also stated that “the into entered sought employment beginning tion that had no further at all landscaping spring Id., p in the season 1992.” 288. As we hold below, “the to which a extent continues his search once he simply many has found one factors” that the finder of may determining plaintiff’s fact consider in the reasonableness of the miti- gation efforts. Tank Co Clawson of a search is Determining the “reasonableness” of, inquiry requiring thorough evaluation a fact-laden plaintiffs of a motiva- example, the earnestness and the circumstances and condi- to find work tion job search, as well as the surrounding his tions *13 plaintiff which a continues of it. The extent results has found is sim- job search once he many factors in this fact-laden determina- ply one of depends inquiry Much of this tion of reasonableness. far credibility, determinations which are upon competence within the of the trial court than more competence appellate judges reading within the dry 2.613(C). records. See MCR case,
In review of the record in this we cannot our with the Court of that the trial court’s agree plaintiff that the made reasonable efforts finding, August 1990, erro- mitigate damages plaintiff often worked far in excess of neous. Barkman He held forty Landscaping. hours a week at job while he was laid off from at least one short-term have during Barkman the off-season. He also would from Barkman in eligible been to receive benefits 1993, had he not to work at Cranbrook instead. gone opinion, n 7. As the trial court noted in its See “[a] plaintiff must show that the failed to make ‘honest, employment,’ faith effort to secure good an that more exhaustive efforts could have been showing Tube, Quoting made is not sufficient.”11 Horizon supra, p 639. well in his review of the record indicates that the did Our search, considering which it was carried out. the circumstances under very job expe Notably, tenth-grade little had a education money time, gas to search out he had no car or with which rience. For properly employment. considered the trial These circumstances were Shiffer, supra, p determining plaintiffs reasonableness. court 459 Mich
c The Court of held that it was unreasonable ignore employer’s purported for the September and, offer in and October of 1992 thus, any was not entitled to back or front following this refusal.12221 Mich 289-291. duty Rasheed, this Court discussed of a discriminatory discharge accept in a suit to an unconditional offer of recall from the defendant. p employer Id., that, 130. We determined where the plaintiff, makes an offer of reinstatement to the court must first determine whether reinstatement p offer is Id., conditional or unconditional. 129. “The step rejection second is to assess whether a is reason- part question able.” Id. The first of this test involves a question court, of law for the while “the of reasona- bleness is one of fact that must take into account the particular circumstances of each case.” Id.
In case, the instant the Court of stated: ways mitigate damages. There are two a can He accept, offered, employment can seek and if that is of “like [Riethmiller, supra.] Or, accept nature.” he can reinstate- (“ upon [plaintiff] is incumbent ‘[I]t to use such means as are reasona- ” ble under the circumstances to avoid or minimize the damages.’ Quoting McCormick, Damages, 33, p 127) (emphasis supplied). § recognized Federal and state cases have a trial court’s discretion to remedy, particularly imprac award front as a where “reinstatement is impossible.” Riethmiller, supra, p (setting ticable or forth the stan recognizing dard and that “the trial court should have discretion in decid ing, case, based on circumstances of each whether to award future dam Express Corp, ages”); Shore v Federal 6, (CA 1994) 42 F3d 377-378 (finding ‘simply compensation post-judgment that “front is for the ” past discrimination,’ “flexibility effects of and that and wide discretion especially important are when a court’s remedies for a Title vn violation Express Corp, pay.” Quoting Shore v Federal include front 777 F2d (CA 6, 1985). Clawson Tank Co [Rasheed, supra, p
ment of if it is offered. 120.] instances, accept obligated In some is an offer of reinstatement or his are cut off. Id. Mich [221 App 286.] law
This statement of the is error both because it imposes a burden on the that is more rigor- duty ous than his to use to mitigate reasonable efforts damages, part I, implies see and because it that acceptance way of offered reinstatement is in some meaningfully acceptance different from of “like employment” employer. from another employment,”
Whenever a is offered “like accept he is it or lose his obligated right contin- pay. back and uing defendant, however, front still proving employ- has the burden of the offered ment was, indeed, employment,” “like and that plaintiff was “unreasonable” in rejecting it. We recog- nized in rejection Rasheed that of an unconditional “may offer of proof reinstatement be used as of an rejection unreasonable satisfaction employer’s Id., p important burden.” 129. It is to note, however, that any previ-
if there are differences between the offer employment position, exception backpay, ous with the employee’s discharged rejection, then a act of if based in part condition, precludes peremp- on that difference or tory Rather, question ruling. court of reasonableness particular one of fact that must take into account cir- cumstances of each case. [Id.] case, the instant recognized conditional, defendant’s reinstatement offer was *15 apparently and that trial court found that the “[t]he patently offer was unreasonable because it was made 459 Mich plain- years after the termination more than two employment. Timing alone, however, does tiff’s . . .” unreasonable . make an offer of reinstatement dispute ignores This statement the 290. parties offer in between the over whether the question legitimate offer, or, rather, was fact merely a trial tactic. question of fact
“[T]he of reasonableness is one particular take into account the circum- that must supra, p Rasheed, stances of each case.” 129. The did not its trial court the instant case document Septem- findings regarding legitimacy and whether the offer, ber/October 1992 rejecting findings was reasonable in it. Such are nec- essary proper appellate review of whether the trial determining erred in that the failed court showing meet its burden of was mitigate damages. unreasonable in his efforts to See 2.517(A)(2) (“Brief, pertinent definite, MCR find- ings and conclusions on the matters axe contested partic- sufficient, without over elaboration of or detail facts”). ularization of
This case must be remanded to the circuit court for specific finding regarding plaintiff’s reasonable- purported job rejecting ness in the defendant’s offer September If, remand, and October of 1992. on plaintiff unreasonably circuit court finds that rejected employment, the defendant’s offer of then pay Septem- is not entitled to back after pay If, ber and to no front whatsoever. on the plaintiff’s hand, other circuit court finds that the rejection original reasonable, award of front September and the award of should both be in full. reinstated *16 275 Clawson Tank Co questions The before this Court remaining involve reversal of the trial court’s find- ings on factual issues.13 We are unable to find clear error the trial court’s See MCR findings. 2.613(C) (“[R]egard given special shall be to the opportunity of the trial judge credibility court to of the witnesses appeared who it”). before
A The Court of ruled, sponte, sua plaintiff admitted that he was disabled and “[b]ecause disability collected February benefits until 1990, the trial court’s award of back 1, 1989, from October as opposed February was erroneous. Indeed, the act of discrimination did not occur until was no longer disabled.” 221 Mich App 287. There is no basis in the evidence for holding.14 13 plaintiff argued preserve The that the defendant failed to issues relat ing findings fact, to -whether the trial court erred its because it did proper postjudgment preclude not file the motions. The court rules plaintiff’s argument point: exception on this “No need be taken to a [trial finding 2:517(A)(7). or decision.” MCR court] potential holding equitable Another basis of this is the doctrine of
judicial estoppel,
properly
applied
but that doctrine cannot
be
to the facts
Industries,
502;
of this case. See Paschke v Retool
445 Mich
Opinion the Court disabil- he had received admitted that February ity 1989, and October benefits between undoubtedly “act of discrimination” 1990, but the date was fired. The latest when the occurred Septem- happened might have which this on gave 1989,when the defendant ber stating decision recommendation, that “the letter of return to work. not to allow Mr. Morris to was made eye put remaining simply in . . . We cannot danger.” *17 plaintiffs inappropriate to infer from the
It is disability dining period, receipt insurance this yet had not and, therefore, unable to work he was against. noted that This Court has been discriminated “ disability possibility may there is ‘the exist where physical capacity for work which is thwarted of some ” inability get physical reasons.’ to for Industries, 502, 513; v Retool Paschke quoting (1994), Larson, 1C Workmen’s NW2d p Compensation § Law, 57.65, 10-492.50. may honestly injured represent to the claimant
“[An] Security Employment office that he is able to do some honesty work, equal Compensation tell the Board and with totally during period he disabled the same later that was since, although work, he have done some kinds of no could physical give one would him a because of his handi- caps.” [Id., pp 513-514.] precisely was the situation in the instant case:
This plaintiff’s physical handicap, because despite work, denied him a chance to App ability willingness and to do so. 221 Mich 284- 286. v Clawson Tank Co Appeals agree
We cannot with the Court of that the finding judge trial erred in was dis- against before October 1989. criminated
B Appeals The Court of stated that “the trial court’s period February award of front after employment, clearly when obtained like was erroneous because incurred no support that time.” Mich 291. No further is despite spe- given statement, for this the trial court’s finding cific on the basis of evidence in the record plaintiff’s front-pay damages amount to judge, making ruling, $75,814.The trial this had the testimony expert reports benefit of and the of those experts. respect obligated The Court of finding it is determined to be unless erro- 2.613(C). reasoning neous. MCR There must be some support such a determination. The amount the circuit award of court’s front fully supported by to the the record discretionary authority grant. and well within its supra, pp Riethmiller, See 200-201. The Court of reversing front-pay erred award on this *18 If, remand, basis. on the circuit court determines that rejecting was reasonable in the defend- September/October front-pay offer, ant’s award should be reinstated.
IV
legally
The Court of
utilized a
erroneous
determining
in
whether the
had
standard
properly
damages.
mitigated
Furthermore, the Court
neous standard
proper
light
the trial court. When evaluated
legal
was sufficient evidence in the
standards, there
support
findings of the trial court.
record to
judgment
reasons,
these
of the Court of
For
Appeals is
and this case is remanded to the
reversed,
whether the defend-
circuit court for a determination
showing
its
unrea-
ant met
burden of
sonably rejected
employment,
its conditional offer
and, therefore, whether the awards of front and back
pay
September
appropriate.
Otherwise,
after
are
rulings
are
of the circuit court
reinstated
full.
and
C.J.,
JJ.,
and
con-
Cavanagh
Mallett,
Kelly,
curred with
J.
Brickley,
majority
(concurring).
agree
J.
I
with the
Weaver,
mitigation requires
that the doctrine of
the victim of
wrongdoing
mitigate
to make reasonable efforts to
pay.
right
or forfeit the
to back
Further, pursuant
mitigation,
to the doctrine of
where the vic-
wrongdoing
employ-
tim of
refuses an offer of “like
e.g., employment
substantially
ment,”
is
equivalent
by wrongdoing,
to the
lost
right
continuing
victim also
forfeits the
pay.
and front
bears the burden of
proving
mitigate damages
that the victim’s efforts to
majority
agree
was unreasonable.1 Because I
with the
August
that the trial court’s award of back
unconditional,
Where an offer of reinstatement
the burden shifts to
rejection
the victim to demonstrate
of the offer was reasonable.
Corp,
Chrysler
109, 132;
(19943;
Raskeed
Further, majority’s I concur with the result sec- plaintiff’s receipt disability tion from m(A). September February through pre- 1990 does not a pay, although clude concurrent award of back correctly pay by trial court reduced back award disability payments. the amount of necessary I also concur that remand is to deter- plaintiff’s rejection Septem- mine whether the of the ber and October offers was reasonable. If plaintiff’s rejection defendant demonstrates unreasonable, plaintiff to neither entitled pay nor front pay However, after October 1992. it remains unclear whether the trial court correctly applied the doctrine pay to the front award. yet pay
This Court has to define the limits of front awards, Legislature and the has offered the courts no direction, despite potential effect of such awards. Even lacking specific guidance, the facts of this case may support pay a modified of front award plaintiff accepted substantially position a similar February 1993. twenty-two years
Plaintiff
in this case was
old
discriminatorily
when he was
discharged. He had
only
been
for Clawson Tank
working
nine months.
The front
award of $75,814
assumes
would have continued
for Clawson Tank
working
sixty-two.
until he retired at the age The award
using
percent
was calculated
rate of 5.26
growth
year
present
value of the
between
difference
earnings
his future
at defendant Clawson Tank and
Cranbrook Schools.
Opinion J. Weaver, speculative nature. The awards are Front expressed regarding concern Circuit has Sixth *20 uncertainty pay potential effect of front awards and pay gov- cautioning of front must be that “an award the trial court and the sound discretion of erned may appropriate in all cases.” Davis v Com- not be (CA Engineering, 6, F2d 923 Inc, 916, bustion 742 example, 1984). stated: Davis, for discriminatorily discharged pay front to a award of [T]he qualifies year employee 41 old until such time as he for pension hand, might the other the fail- be unwarranted. On employee 63, age ure to make such an award for an like- discriminatorily discharged, might be an of dis- wise abuse cretion. [Id.]
Michigan
recognized
courts also have
the uncer-
tainty
pay
v Blue
front
awards.
Riethmiller
Michigan,
App 188,
Cross & Blue Shield
(1986),
201;
and number employee mandatory before the would be faced with Implicit pp Id., retirement.” 200-201. in the second regarding plaintiff’s prospects consideration other is the relevance to the award of plaintiff’s actually obtaining front of a other employment.
Beyond those enumerated in considerations supra, Riethmiller, the Sixth Circuit considers the pay: following factors relevant to the award of front Co Tank Clawson Opinion J. Weaver, employee’s position from which she (1) future expectancy; (3) her terminated; (2) work and life her availability (4) mitigate damages; her obligation to opportunities reason- comparable employment time employment; (5) required the dis- ably find substitute present value of future dam- determine count tables to pertinent prospective (6) factors that are ages; and “other Manage- [Suggs Ed Food damage v ServiceMaster awards.” 6, (CA 1996).] ment, F3d obli- plaintiffs are recognize thus The federal courts as well as mitigate their future gated Express Corp, 42 v Federal damages. See Shore 6, 1994). (CA F3d mitigate damages. future obligation There is an adequately reflect case, the record does In this miti- considered the properly the trial court whether *21 respect damages. future It with principles gation future determined what constitutes be remains only to I remand not result, As a would damages. plaintiff was reasonable determine whether September October rejecting defendant’s reexamine the issue front but also to offers opinion. set forth in this principles light with J. Boyle, J., concurred Weaver, J., case. part no in the decision of this took Taylor,