IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

ROBERT SMITH, )

)

 Plaintiff, )

) 

v. ) Civil Action No. 11-CV-9147

)

) 

ROSEBUD FARMSTAND, ROCKY MENDOZA, )

CARLOS CASTANEDA, et al ) Honorable Judge Robert M. Dow Jr.

 ) Jury Demand

Defendants. )

MOTION FOR JUDGMENT ON DEFENDANT’S AFFIRMATIVE DEFENSE OF

MITIGATION

Defendant's burden on their affirmative defense of mitigation

The law is well-established that the defendants had the burden to prove their affirmative 

defense at the phase II hearing, i.e., that the plaintiff 1) did not exercise reasonable diligence to 

seek employment and 2) a reasonable likelihood existed that he might have found comparable 

employment. Gaddy v. Abex, 884 F.2d 312, 318 (7th Cir. 1989); Coleman v. Lane, 949 F. Supp. 

604, 608, 611 (N.D. Ill. 1996); Wheeler v. Snyder., 794 F.2d 1228, 1234 (7th Cir.1986). 

The plaintiff has pending a motion to bar the testimony and strike the report of the 

defendant’s economist. Doc 250. Also, the plaintiff has a motion to strike documents from the 

defendant's economist that were not produced in discovery and to bar any opinion not in the 

economist’s report. Doc 257. If this Court grants those motions, then the court's order will bolster

the plaintiff's motion for judgment. If such motions are not granted, the Honorable Judge Dow 

may find that the plaintiff's motion for judgment can still be granted. Operating v. Clarks, 688 

F.Supp.2d 902, 913 (N.D.Calif. 2010) (granting summary judgment for the plaintiff on 

defendant's affirmative defense of mitigation). As will be demonstrated, the defendants failed to 

prove both or either of the two prongs of their burden, supra. Consequently, judgment can be 

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entered against the defendants on their affirmative defense of mitigation and the parties can 

proceed to the next step.

Defendants failed to meet their “heavy” burden on their affirmative defense

The defendant's burden to prove a failure to mitigate is "heavy". Atlantic Limousine v. 

N.L.R.B., 243 F.3d 711,721 (3 rd Cir. 2001). Why? The defendant's burden is heavy because the 

law promotes an important public policy, that is, 1). refusing to allow employers to benefit from

breaking the law and 2). making victimized plaintiffs whole. NLRB v. Westin, 758 F. 2d 1126, 

1130 (6th Cir. 1985) ("Westin seeks... to place the burden on the employee to prove a 'systematic

method of searching for a job', and...to retain employment once secured regardless of the 

conditions under which the employee was required to work. Neither the courts nor the Board has 

recognized this as an appropriate standard. To the contrary, basic principles of equity and fairness

mandate that the burden of proof must remain on the employer because the employer's illegal 

discharge of the employee precipitated the search for another job.") Once a plaintiff has 

established that his employer unlawfully terminated his employment, a presumption in favor of 

full relief arises. Gaddy v. Abex, supra.

Prong #1: The defendants failed to meet their burden to prove that the plaintiff did not 

exercise reasonable diligence to seek employment

The Seventh Circuit standard for victimized plaintiffs seeking a substantially equivalent 

job includes 'check[ing] want ads, register[ing] with employment agencies, and discuss[ing] 

employment opportunities with friends and acquaintances.'" Hanna v. American, 724 F. 2d 1300, 

1307 (7th Cir.1984). The victimized plaintiff is "only required to make a reasonable effort to 

mitigate damages and is not held to the highest standard of diligence. This burden is not onerous,

and does not mandate that the plaintiff be successful in mitigating." NLRB v. Ryder, 983 F.2d 

705, 715 (6th Cir. 1993); see also, Canova v. NLRB, 708 F.2d 1498, 1506 (9th Cir.1983). 

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The defendants attempting to attack the credibility of the plaintiff fails to meet the 

defendant's burden of proof. Floca v. Homecare, 849 F.2d 108, 112 (5th Cir. 1988) (reversing 

District Court’s holding that plaintiff, a supervisory RN, was required to accept a regular RN 

position; "the judge did not believe... (Plaintiff) that she could not find comparable work; the 

lack of credibility...is insufficient to meet the defendant's burden of proof.) This concept is 

important because as will be seen and determined, in Smith vs. Rosebud, the defendants did not 

refute the plaintiff's uncontroverted testimony of his efforts to find a job. 

In Clark v. Takata, 192 F.3d 750, 759 n. 5 (7th Cir.1999), the Court of Appeals held: 

The district court... held that...Mr. Bozeman made no meaningful attempt to 

obtain teaching employment ....On that basis, in addition to the finding of no 

racial discrimination, the court below declined to award back....Mr. Bozeman 

testified that he sent written applications to two school districts... that he had 

talked to the superintendent...and that he had also inquired about vacancies...

through teachers and former teachers, all black, who had been released....The 

district court concluded that Mr. Bozeman's efforts to find other teaching 

employment were insufficient...

The appellees do not claim that at trial it was proved that there were teaching jobs 

available for which Mr. Bozeman would have qualified had he applied. It merely 

asserts that Mr. Bozeman did not expend sufficient effort to find other teaching 

employment. The appellees' position is without legal justification. As the Eighth 

Circuit held in Hegler...'The defendant...(school board) has to show not only that

the plaintiff... failed to use reasonable care and diligence, but that there were jobs 

available which appellant could have discovered and for which she was qualified'.

In Snow v. HealthSouth., 2001 Lexis 5534 (S.D. Ind. 2001), the court held: 

(The plaintiff) ...claims that, because of her inside knowledge of the health care 

community in Kokomo, she knew that no comparable jobs were available to her. 

It is true that she merely asserts this claim. However, that is enough, because it is 

not her burden to present evidence to prove that she was sufficiently diligent. 

Rather, it is HealthSouth's burden to bring forth evidence to disprove it. The only 

evidence that HealthSouth proffers is its own assertion that Snow did not 'apply 

for a job [in the health care market, and that] she [did not] inquire into possible 

job openings at any of the numerous healthcare facilities in the surrounding area.' 

HealthSouth Brief at 33. Even if true, this is an inadequate showing. The law does

not require that a plaintiff circulate resumes or make formal inquiries when it is 

clear that such an attempt would be futile. The burden remains with HealthSouth 

to show that the attempt, most likely, would not have been futile. Thus, to refute 

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Snow's explanation, HealthSouth would have to show that there were jobs 

available which Snow ignored. This, HealthSouth has failed to do.

As in Clark and Snow, in Smith vs. Rosebud, the defendants failed to present any 

employers who would have hired the plaintiff if he had applied. Also, the defendants failed to 

refute the plaintiff’s testimony. The plaintiff testified that after being constructively discharged in

June 2008 and before discovering that he had an opportunity to move to Arizona in July 2008, 

the plaintiff testified that, daily, he spent five hours a day looking for a job. He would review job 

postings in the Chicago Tribune, Chicago Sun-Times and the free employment newspapers that 

one would find at supermarkets. Also, the plaintiff testified that daily he submitted numerous job 

applications. Moreover, the plaintiff either daily or frequently throughout the week would go to 

the Illinois Department of Economic Security (IDES) and used their computers. He testified that 

the IDES would give the plaintiff lists of job openings. He would respond to about 32 of those 

job openings daily by submitting applications. Furthermore, he frequently contacted family and 

friends asking them if they had any ideas where he could obtain a job. 

After moving to Mesa, Arizona in July 2008, the plaintiff testified that he followed the 

same procedure as in Chicago before leaving for Arizona. Instead of the Chicago newspapers, he 

reviewed the Arizona Republic and the same type of employment newspapers one would find at 

supermarkets. Moreover, he would go to the employment agencies where he lived every day and 

followed the same procedure as he did in Chicago. He testified that he would walk within a 4 

mile radius of where he lived and applied for jobs. 

Also, the plaintiff testified about proceeding to interviews. Furthermore, he testified how 

he looked for a job as a meat butcher both in Chicago and Mesa, Arizona, but to no avail, except 

for some temporary jobs. He testified that his girlfriend informed him of a couple of job leads. 

He pursued those job leads and was able to find temporary employment. Moreover, the plaintiff 

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testified how he has worked for a temporary employment agency. 

Had Rosebud not constructively discharged him, the plaintiff testified that he would have 

continued to work for Rosebud beyond 2016. At trial, he testified that when working at Rosebud,

he could walk to work when his car would frequently break down. He testified how he would 

have worked 50, 60 and 70 hours per week. He also testified that when he did work overtime, 

that is, 50, 60, 70 hours per week, Rosebud did not pay him time and one-half. Indeed, he stated 

that he complained to head butcher, Federico Lopez, but to no avail. The defendants violated 

Illinois law by failing to pay time and one-half for the plaintiff working overtime. 820 ILCS 

105/4a (1) ("no employer shall employ any of his employees for a workweek of more than 40 

hours unless such employee receives compensation for his employment in excess of the hours 

above specified at a rate not less than 1 1/2 times the regular rate at which he is employed.")

In Hanna, supra, the plaintiff had been an assemblyman for the defendant. The plaintiff 

visited the job service office, applied at factories, read want ads, discussed jobs with friends and 

worked at least 2 jobs. The Court of Appeals held, "these actions are more than sufficient to 

constitute 'reasonable diligence' on the part of Hanna." Id at page 1309. Therefore, the Court of 

Appeals reversed the District Court's finding that the plaintiff "should have more diligently 

pursued work that was available". Hanna at page 1308. Also, the Court of Appeals held:

AMC failed to introduce a scintilla of evidence to contradict or discredit Hanna's 

testimony that he had placed applications on file with various employers, 

registered with the employment office, discussed employment opportunities with 

others, checked the want-ads, or secured temporary employment. 

In Smith v. Rosebud, the plaintiff satisfied the Seventh Circuit standard or exceeded it. 

He filed applications with various employers. He registered with employment agencies. He 

discussed employment opportunities with friends and family. He checked the want ads and he 

secured temporary employment. Indeed, he did more than required by Hanna, spending 5 hours 

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daily a day checking the want ads in multiple newspapers, checking the lists of job openings at 

the Department of Economic Security and the correlative agency in Mesa, Arizona, walking a 4 

mile radius daily looking for jobs and so forth. As in Hanna, the defendants have presented no 

evidence to contradict the plaintiff's testimony of his efforts to find employment. The plaintiff's 

testimony is uncontroverted, undisputed, and thus, must be accepted. As stated, the defendants 

must meet both prongs to fulfill their burden. As the defendants failed to meet their burden 

regarding the first prong, on this basis alone, Judge Dow may decide to enter judgment against 

the defendants on their affirmative defense. 

In Gaddy v. Abex, supra, on cross-examination, the plaintiff testified that Kraft was 

interested to employ the plaintiff, but she did not pursue the possible job because she could not 

afford relocating herself and her family from Chicago to Geneva, Illinois. The plaintiff testified 

that she contacted over 100 employers, used two employment agencies, answered newspaper ads

and followed leads from friends and relatives. Despite all of these efforts, the plaintiff received 

no job offers and earned no income since her employment with the defendant terminated. The 

District Court granted back pay for 71 months totaling $118,270. Affirming the District Court, 

the Court of Appeals held that the defendants failed to produce any probative evidence that if the 

plaintiff had pursued Kraft, a reasonable probability existed that she would have received a job 

offer. Therefore, the Court of Appeals held that the defendants failed to meet their burden to 

overcome the important public policy of making victimized plaintiffs whole.

In Wheeler v. Snyder, 794 F.2d 1228, 1234 (7th Cir.1986), the plaintiff answered want 

ads, registered with employment agencies and applied for various positions, but did not pursue 

other known opportunities with new car dealerships. The Seventh Circuit found that the 

plaintiff's efforts were sufficient, although it was "not untroubled by the [low] level of Wheeler's 

post-termination job-seeking activities." Id. A diligent ... plaintiff endeavoring to mitigate 

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damages would at least check the want ads, register with employment agencies, and discuss job 

opportunities with friends and acquaintances." Id. In Smith v. Rosebud, the plaintiff met the 

Seventh Circuit standard of answering want ads, registering with employment agencies and 

discussing job opportunities with friends and acquaintances. Indeed, he did considerably more 

than the standard. Supra. 

The defendant's answers to the plaintiff's discovery demonstrate that the defendant

failed to meet its burden

As argued in the plaintiff's supplement to the plaintiff's motion to strike and bar the 

defendant's economist, the defendants failed to disclose in discovery the factual basis of their 

affirmative defense. The defendant's affirmative defense #2 is bare-bones stating "plaintiff has 

failed to mitigate his damages." Exh. I. The plaintiff propounded discovery to learn the basis of 

the defendant's bare-bones defense. For example, interrogatory #15 requested:

Regarding each and every affirmative defense, I) detail all facts, II) identify all 

persons having information or knowledge relating to such affirmative defense and

identify the affirmative defense and III) please produce all documents related to 

the affirmative defenses.

Emphasis added. The defendants never answered interrogatory #15. Instead, in response to the 

plaintiff's motion to compel, the defendants argued that their answer to interrogatory #14 and #16

essentially responded to interrogatory #15. However, neither the defendant's answer to 

interrogatory #14, Exh. II nor the defendant’s answer to interrogatory #16, Exh. III, detailed all 

of the facts for the defendant's affirmative defense. Therefore, regarding the first prong of the 

defendant's burden, the defendants provided no facts that the plaintiff did not exercise reasonable

diligence to seek other employment. Regarding the second prong of the defendant's burden, the 

defendants provided no facts that with reasonable diligence, a reasonable likelihood existed that 

the plaintiff might have found a substantially equivalent job.

The plaintiff's interrogatory #16, requested:

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Please state whether you or your counsel has received any factual information 

from any person or entity relating to the allegations in the complaint, the 

defendant's answer to the complaint or defendant's affirmative defenses, 

including, but not limited to, any third party, such as, any place where the plaintiff

was employed or applied for employment. If the answer is yes, please detail the 

name, address and telephone number, work position, name of employer, the date 

the information was provided and the substance of all factual information. If you 

contend any such information is privileged, please provide privilege log in 

accordance with the Federal Rules of Civil Procedure.

Emphasis added. As can be seen by and gotten a handle of the defendant's answer to 

interrogatory #16, Exh. III, the defendant's answer provides no facts to meet their burden to 

prove the first and second prong of their burden. Plaintiff's request to produce #11 requested "all 

documents, memorandum, correspondence, notes or computer records referring or relating to 

your defense of the allegations of the plaintiff's complaint." The defendants failed to produce 

documents to meet their burden. In short, as the defendants failed to produce evidence to meet 

their “heavy” burden to overcome the important public policies to make the victimized plaintiff 

whole, this Court might decide to move to the next step of entering judgment against the 

defendants on their affirmative defense. 

Prongs #2: The defendants failed to meet their burden to prove that with reasonable 

diligence, the plaintiff could have found a substantially equivalent job

The defendants must prove that substantially equivalent employment was available and 

that the claimant did not exercise reasonable diligence to obtain it. Ford v. EEOC, 458 U.S. 219, 

231 (1982), Donlin v. Phillips, 581 F.3d 73, 89 (3rd Cir. 2009). In Coffey v. DFW, #14-4365 (ND

Ill. 10/29/15), *7 Exh. IV, regarding the affirmative defense of mitigation, the court asserted that 

the defendant bore the burden of proving 1) that the plaintiff was not reasonably diligent about 

finding employment and 2) a reasonable probability existed that the plaintiff might have found 

comparable employment.

Regarding the first prong, the court noted that the defendant did not rebut the plaintiff's 

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deposition testimony about her job search. Instead, the defendant only argued that the plaintiff 1).

restricted her job search to online sources rather than checking newspaper job advertisements 

and 2). could have expanded her job search to a wider geographical area. The court held that 

even if a jury disbelieved the plaintiff about her job search, the defendant still failed to meet its 

burden to rebut the plaintiff's testimony. Regarding the second prong, the court held that the 

defendant offered no evidence “that plaintiff might have found a job had she made additional 

efforts. For instance, defendant did not present evidence from a potential employer that an 

application from plaintiff would have resulted in a job offer, nor did defendant offer evidence of 

specific job qualifications sought by employers and how they compare to plaintiff's”. id.

As in Coffey v. DFW, in Smith v. Rosebud, the defendants provided no evidence refuting 

the plaintiff's uncontroverted testimony of his efforts to find a job. Also, the defendants provided 

no evidence that the plaintiff might have found a job had he made additional efforts. Moreover, 

the defendants offered no evidence of specific job qualifications sought by employers and how 

they compare to the plaintiff's. Also, the defendants provided no evidence from a potential 

employer that if they had received an application from the plaintiff, they would have hired the 

plaintiff. Therefore, as in Coffey v. DFW, the defendants in Smith v. Rosebud, failed to meet 

their burden on their affirmative defense.

Regarding the second prong, the defendants, either through their economist or otherwise, 

failed to demonstrate any substantially equivalent employment which had virtually identical 

promotional opportunities, compensation, job responsibilities and status as the plaintiff had with 

the defendants. The defendant's economist merely stating that thousands of jobs from a hearsay 

website existed failed to meet their burden. At no time did the defendant's economist discuss a 

specific meat butcher job opening and give an opinion that it was substantially equivalent in 

promotional opportunities, compensation, job responsibilities and status as the plaintiff's position

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with the defendants. Consequently, whether there were thousands of jobs in Chicago or Arizona 

is irrelevant as it does not relate to any issue in the case. 

Notably, as argued in the plaintiff's motion to strike, the defendant's economist admitted 

at the Phase II hearing that he did not check, even randomly, if the alleged thousands of job 

openings were real, actual jobs. He did not check if these alleged thousands of job openings were

actually filled. If they were real jobs and filled, he did not check who filled them and what 

qualifications such person had. When defendants submit job advertisements as potential 

evidence, courts require defendants to prove that such jobs were real, actually available. Mueller 

v. First, 797 F. Supp. 656, 658 (C.D.Ill.1992) (admitting defense exhibits of job listings in 

newspapers and magazines, but requiring proper showing that the positions were available and 

represented actual job openings for the plaintiff). Also, at no time did the defendants through 

their economist (Malcolm Cohen ) or otherwise prove that had the plaintiff applied for a 

particular job, he would have obtained it.

Pursuant to the FRE 701, 702, the defendants were obligated to provide an expert with 

technical or other specialized knowledge to prove that substantially equivalent jobs existed. An 

economist may be unqualified to render such an opinion. A vocational expert might be more 

qualified. Even the most “supremely qualified expert cannot waltz into the courtroom and render 

opinions unless those opinions are based upon some recognized scientific method and are 

reliable and relevant under the test set forth by the Supreme Court in Daubert.” Clark at 759 n. 5.

Nevertheless, whether an economist is unqualified to render an opinion about 

substantially equivalent jobs is irrelevant because the defendant's economist never gave an 

opinion that substantially equivalent jobs existed. Sparks v. Griffin, 460 F.2d 433, 443 (5th Cir. 

1972) (“[T]he [defendants] do not claim that at trial it was proved that there were teaching jobs 

available for which [the plaintiff] would have qualified had he applied. It merely asserts that [the 

10
plaintiff] did not expend sufficient effort to find other teaching employment. [This] position is 

without legal justification.”); 

At the Phase II hearing, the Honorable Judge Dow may recall that the plaintiff repeatedly 

objected based upon relevance regarding the defendant's cross examination of the plaintiff and/or

the defendant's examination of their economist. The reason why the plaintiff objected based upon

relevance is because the defendant’s questions had little to no bearing on what the defendants 

had to prove on their affirmative defense. “[E]xpert testimony which does not relate to any issue 

in the case is not relevant and, ergo, non-helpful” it should be excluded. Daubert, at 591.

In NLRB v. Midwestern, 508 F. 3d 418, 427 (7th Cir. 2007), the defendants presented a 

report from Malcolm Cohen, the same economist used by the defendants in Smith v. Rosebud. 

The administrative law judge restricted the testimony of Malcolm Cohen to what was contained 

in his report. (Indeed, the Honorable Judge Dow in Smith vs. Rosebud also restricted Malcolm 

Cohen at the Phase II hearing to what was in his report.) Allegedly, the report stated that 

numerous jobs existed. The Court of Appeals affirmed the restriction by the judge holding:

The data collected was Statewide, and thus the report did not provide specific data

for the relevant geographical areas. In addition, Cohen's analysis did not include 

any data regarding the pool of applicants, any insight into whether the 

discriminatees would have been able to secure positions had they applied, or any 

information regarding the hours, wages, and locations of the supposedly available 

positions. In general, it is reasonable for the Board to reject expert testimony 

regarding generalized labor market analysis as evidence that particular 

discriminatees failed to perform a reasonably diligent search. 

id. As in NLRB v. Midwestern, in Smith vs. Rosebud, the defendants through Malcolm 

Cohen failed to provide any evidence regarding the pool of applicants, whether the plaintiff 

would have been able to secure a job, any information regarding the hours, wages and locations 

of the supposedly available positions. Also, regarding Arizona, the defendants through Malcolm 

Cohen provided general information of Maricopa County instead of specific data of Mesa, 

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Arizona where the plaintiff lived. This is particularly important as the plaintiff had restricted 

access to means of transportation.

Finally, as in in NLRB v. Midwestern, in Smith vs. Rosebud, the defendants through 

Malcolm Cohen provided only "generalized labor market analysis". See also, Kuper v. Empire 

Blue Cross, 2003 LEXIS 2362, 20 (S.D.N.Y. 2003) (“Generalized evidence that the industry is 

doing well is insufficient to meet the burden to show comparable work existed”); Prine v. Sioux 

City, 95 F.Supp.2d 1005, 1012 (N.D. Iowa 2000) ("The court concludes that the School District's 

assertion that the economy is good, and that jobs are available in the Sioux City area does not 

satisfy its burden of proof on the issue of mitigation.")

Notably, in NLRB v. Midwestern, Malcolm Cohen went a step further than he did in 

Smith v. Rosebud, that is, rendering an opinion that the plaintiff did not perform a reasonably 

diligent search. Even with this additional step, the judge rejected Malcolm Cohen's opinion and 

the Court of Appeals affirmed. In Smith v. Rosebud, Malcolm Cohen does not even render an 

opinion that the plaintiff with reasonable diligence could have found a substantially equivalent 

job. Therefore, as in NLRB v. Midwestern, the Honorable Judge Dow may decide to find that the

defendants failed to meet their burden.

Courts hold that defendants fail to meet their burden by simply presenting want ads 

without more. In Kawasaki v. NLRB, 850 F.2d 524, 528 (9th Cir. 1988), the court held, 

"Kawasaki's reliance on newspaper advertisements and hiring records to show the availability of 

jobs is not adequately convincing. Kawasaki failed to produce evidence of employment 

specifically available or employment offers Bennett refused to accept." See, Meyers v. City of 

Cincinnati, 14 F.3d 1115, 1119 (6th Cir. 1994) (“The City presented no evidence that 

substantially equivalent positions were available to Meyers and has not, therefore, met its burden

of establishing failure to mitigate.”); Reid v. Kraft, 1995 WL 262531 9 (E.D.Pa.1995) (defendant

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criticizing the plaintiff's efforts to find employment does not meet the defendant's burden; also, 

defendant failed to demonstrate there were substantially equivalent positions available); Mallek 

v. City of San Benito, 121 F.3d 993, 997 (5th Cir. 1997) (plaintiff rejected defendant's offer of 

employment; defendant failed to meet its burden to prove that it's offer was substantially 

equivalent to the plaintiff's previous position).

In NLRB v. Ryder, 983 F.2d 705 (6th Cir. 1993), the Court of Appeals rejected the 

defendant's argument that the help-wanted advertisements satisfied their burden:

Ryder makes much of help wanted advertisements it placed in the record in 

support of its claim that there were truck driving jobs available if Briscoe wanted 

one. We are not persuaded. Ryder’s reliance on the advertisements is not 

convincing. It 'failed to produce evidence of employment specifically available or 

employment offers... (the victimized plaintiff) refused to accept.'

As in Ryder, the defendants in Smith v. Rosebud failed to produce evidence of substantially 

equivalent employment and of employment offers which the plaintiff did not accept. Therefore, 

as in Ryder, Judge Dow may decide to enter judgment against the defendants on their affirmative

defense of mitigation. In Coleman v. Lane, 949 F. Supp. 604, 614 (ND Ill. 1996), though the 

plaintiff only submitted four job applications and inquired into a few positions, the court held 

that the defendant failed to meet its burden on its affirmative defense of mitigation to overcome 

the important public policy of making harassed, victimized plaintiffs whole. The defendant 

submitted numerous pages from the Chicago Tribune listing maintenance positions. Also, the 

defendant submitted evidence that the plaintiff did not apply for these maintenance jobs. 

Aside from the plaintiff objecting that the Chicago Tribune was hearsay, the plaintiff 

argued that the defendant failed to meet their burden that the posted jobs in the Chicago Tribune 

were actual, real jobs and that if the plaintiff had applied, he would have obtained the job. The 

court analyzed whether the defendant met its burden to prove that the plaintiff had a reasonable 

likelihood to acquire a job, citing Gaddy, 884 F.2d at 318. Finding that the defendant failed to 

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meet its burden to overcome the important public policy of making victimized plaintiffs whole, 

the court held: 

The two pronged test...requires Defendant to make a showing that further efforts 

on Plaintiff's part might have succeeded. All that Defendant has offered to meet 

this burden are copies of want-ads. No case law cited by Defendant...establishes 

that such a showing, without more, is adequate to meet Defendant's burden. 

Nowhere does the court find evidence of the specific job qualifications sought by 

the potential employers and how they compare to Plaintiff's skills and 

background. Nor did Defendant present evidence from any potential employer 

that an application from Plaintiff would have resulted in an offer. Thus, although 

Plaintiff was undoubtedly remiss in his efforts to mitigate his damages, Defendant

has failed to adequately demonstrate that Plaintiff had a reasonable likelihood of 

receiving a job offer had he contacted the employers in the newspaper. Although 

Plaintiff appears to believe that he was qualified to do ‘anything I want to’ in the 

maintenance field...Defendant presented no evidence that potential employers 

shared that assessment. The court accordingly awards Plaintiff $88,261.95 in postjudgment back pay — $94,261.95 in lost wages and benefits.

id. Similarly, in Smith v. Rosebud, the defendants failed to provide any evidence of any 

specific, substantially equivalent job to which the plaintiff had not applied. As in Coleman, 

defendants in Smith v. Rosebud presented hearsay, generalized, abstract information of job 

postings without presenting any specific information of the specific job qualifications for each 

job posting and comparing it to the plaintiff's skills and background. Also, as in Coleman, the 

defendants provided no evidence from "any potential employer that an application from plaintiff 

would have resulted in an offer." Id. Furthermore, as in Coleman, the defendants "failed to 

adequately demonstrate that plaintiff had a reasonable likelihood of receiving a job offer had he 

contacted the employers" mentioned in the economist's report, presuming that such unidentified 

employers are real, actual employers, have real, actual job openings. Therefore, as in Coleman, 

Judge Dow may decide to choose the option of moving to the next step and finding that the 

defendants failed to meet their burden and entering judgment against the defendants on their 

affirmative defense. 

Wherefore, the plaintiff prays that this Honorable Court will grant the plaintiff's motion and 

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enter judgment against the defendants on their affirmative defense of mitigation.

Respectfully submitted,

______________________________

Joseph A. Longo

LONGO AND ASSOCIATES LTD.

Joseph A. Longo, Esq.

Attorney for Plaintiff

2100 West Haven

Mt. Prospect, IL 60056

(847) 640-9490

Longo-Associates@SBCglobal.net

Attorney No. 53635

CERTIFICATE OF SERVICE

I, Joseph A. Longo, an attorney, certify that I served this MOTION FOR JUDGMENT 

ON DEFENDANT’S AFFIRMATIVE DEFENSE OF MITIGATION by electronic filing on 28 

April 2016 before 5pm. Under penalties as provided by law pursuant to 735 ILCS, Sec 5/1-109, I 

certify that the statements set forth in this Certificate of Service are true and correct. 

____________________________

Joseph A. Longo 

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