concurring in part and dissenting in part.
{¶ 82} I disagree with the majority’s decision insofar as it reduces the back-pay award to appellant and cross-appellee, Dorsie Stacy, by the amounts he received in benefits from the School Employees Retirement System (“SERS”) and would have received in wages had he accepted employment with Laidlaw Transit, Inc. In my opinion, these offsets are inappropriate under the present circumstances.
{¶ 83} In finding that Stacy’s back-pay award should not be reduced by the amount of benefits he received from the SERS, the court of appeals explained, “Stacy received these benefits due to his years of service and payments into the SERS retirement system. It would be a windfall to the board if it were permitted to reduce the amount of back pay owed to Stacy by the amount he received from SERS as a result of his retirement.”
{¶ 84} In reversing the court of appeals’ judgment on this issue, the majority relies on breach-of-contract cases in which retirement benefits and unemployment-compensation payments were held to be properly offset against back-pay awards. The majority reasons that the party whose employment contract was breached is not entitled to be placed in a better position than he or she would have been in had there been no breach. Furthermore, the majority reasons, the principle of deterrence behind the collateral-source rule, which precludes an offset for amounts received from a source independent of the wrongdoer, is inapplicable in breach-of-contract actions.
{¶ 85} By offsetting Stacy’s retirement benefits, however, the majority places Stacy in a worse position than he would have been in but for the board’s illegal layoff and concomitant privatization of his job. In United Protective Workers of Am., Local No. 2 v. Ford Motor Co. (C.A.7, 1955), 223 F.2d 49, 53, upon which the majority places significant weight, the court explained, “The District Court’s judgment awarded [plaintiff] all the wages he would have received if the contract had not been breached, and if the social security and annuity payments are not deducted, [plaintiff] will have received more than he would have if the contract had not been breached.”
*494{¶ 86} In this case, the court of appeals did not award Stacy all of the wages he would have received had the board not forced his retirement. From the $134,221.18 that Stacy would have received from continued employment with the board, the court of appeals deducted $108,333 in “mitigation income” that Stacy might have earned from obtaining equivalent employment as a general or bus mechanic, thus awarding him a total of $25,888.18 in back pay. Indeed, after subtracting his SERS benefits also, the majority declares, “Stacy is entitled to no back-pay award.”
{¶ 87} Moreover, this case does not involve a simple breach of an employment contract. In this case, “the board illegally abolished [Stacy’s] position and laid him off and contracted out the same work to Laidlaw.” State ex rel. Stacy v. Batavia Local School Dist. Bd. of Edn., 97 Ohio St.3d 269, 2002-Ohio-6322, 779 N.E.2d 216, ¶ 23. In this regard, “the board’s actions were invalid because they violated R.C. 3319.081,” which provides nonteaching school-district employees with certain rights and protections regarding the termination of their employment. Id. at ¶ 20. See, also, State ex rel. Boggs v. Springfield Local School Dist. Bd. of Edn. (2001), 93 Ohio St.3d 558, 561, 757 N.E.2d 339; State ex rel. Ohio Assn. of Pub. School Emp./AFSCME, Local 4, AFL-CIO v. Batavia Local School Dist. Bd. of Edn. (2000), 89 Ohio St.3d 191, 195, 729 N.E.2d 743.
{¶ 88} Under these circumstances, “[r]educing recovery by the amount of the benefits received by plaintiff would be granting a windfall to defendant by allowing [it] an undeserved credit on [its] own wrongdoing from a source never so intended.” Sporn v. Celebrity, Inc. (1974), 129 N.J.Super. 449, 459, 324 A.2d 71 (refusing offset of unemployment compensation received by plaintiff in wrongful-discharge action.)
{¶ 89} The majority also offsets the amount of wages that Stacy would have earned if he had gone to work for Laidlaw, reasoning that the Laidlaw offer of employment was sufficiently similar to Stacy’s work as a bus mechanic for the board so as to require its acceptance in mitigation of damages. Yet in that very equivalence lies its illegality. The board’s actions in this case were invalid under R.C. 3319.081 precisely because the board had laid off public employees by abolishing their positions while in reality retaining the same positions and hiring nonpublic employees to fill them. It is a strange holding, indeed, that requires a wrongfully terminated public employee to mitigate his damages by accepting the very conditions that made his termination illegal.
{¶ 90} I would affirm the judgment of the court of appeals in its entirety.
Pfeifer, J., concurs in the foregoing opinion.