Backpay—Front pay—Mitigation of Damages

Backpay—Front pay—Mitigation of Damages—Office of the Attorney General of Texas v. Rodriguez, ___ S.W.3d ___, 2017 WL 4586128 (Tex. App.—El Paso 2017)—The employer argued that the plaintiff in this Whistleblower Act case failed to mitigate her damages for purposes of front pay. The court observed that if a plaintiff presents evidence of reasonable efforts to obtain substitute employment, the defendant must present evidence “that substantially similar positions were available for which the plaintiff was qualified,” but the plaintiff failed to apply for these positions. The plaintiff did prove a reasonable initial effort, but she eventually accepted and continued in a lower paying job, and then ceased her efforts to seek a higher paying position. She accepted the lower paying job only after a futile 18-month search for comparable employment. Under these circumstances it was incumbent on the employer to prove there were in fact substantially comparable employment opportunities, but the employer presented no such evidence. Thus, the jury was entitled to award front pay.

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