Rodriguez v. The Texan: Defendant's Failure to Raise Plaintiffs' Failure to "Mitigate Damages" Precludes...

IMMIGRANTS & EMPLOYMENT

Immigrants' Employment Rights and Remedies

RODRIGUEZ V. THE TEXAN, INC.: DEFENDANT'S FAILURE TO RAISE PLAINTIFFS' FAILURE TO "MITIGATE DAMAGES" PRECLUDES INTRODUCING IMMIGRATION STATUS EVIDENCE AT TRIAL
Immigrants' Rights Update, Vol. 16, No. 6, October 21, 2002

In an action brought under the Fair Labor Standards Act (FLSA), a federal judge in Illinois has granted the plaintiffs' pre-trial motion to prohibit the defendants from asserting a defense that would have allowed the introduction of evidence regarding the plaintiffs' immigration status or their inability to mitigate damages. In Rodriguez v. The Texan, Inc., the plaintiffs filed a motion in limine seeking to preemptively "head-off any argument that the plaintiffs' status as illegal aliens precludes them from recovering certain damages under the principles articulated in Hoffman."

(A motion in limine is a pretrial device intended to keep certain evidence from being introduced at trial. "Hoffman" refers to Hoffman Plastic Compounds v. NLRB, 122 S. Ct. 1275 (2002), a U.S. Supreme Court decision that bars undocumented workers from claiming back pay as a remedy under the National Labor Relations Act for unfair labor practices committed by an employer.)

Under the "mitigation of damages" doctrine, plaintiffs must attempt to minimize their economic damages (e.g., by looking for work) after being terminated from their employment. Had the defendants affirmatively alleged in their answer to the complaint that the plaintiffs failed to mitigate their damages (that is, had the defendants pled the failure as a defense), they might have been able to introduce evidence at trial concerning the plaintiffs' immigration and work authorization status. Under Hoffman, such evidence may bear directly on the plaintiffs' ability to obtain back pay.

The plaintiffs relied on cases from several courts of appeals (the First, Fifth, Eighth, Eleventh, and the District of Columbia Circuits) in arguing that defendants must raise the failure to mitigate damages as an affirmative defense in order to escape liability. The court agreed with the plaintiffs, finding that in the Second Circuit, a defendant's failure to raise an affirmative defense results in a waiver of that defense. In this case, the court held, the defendants never formally alleged that the plaintiffs failed to mitigate their damages. The court also noted that "it surely comes with ill grace for an employer to hire alien workers and then, if the employer itself proceeds to violate the Fair Labor Standards Act . . . for it to try to squirm out of its own liability on such grounds."

Rodriguez v. The Texan, Inc., 2002 U.S. Dist. LEXIS 17379 (N.D. Ill. Sept. 16, 2002).