concurring in part and dissenting in part.
BucMey King, James E. Melle, and Donell Grubbs, for appellant and crossappellee. Ennis, Roberts & Fischer Co., L.P.A., and C. Bronston McCord III, for cross-appellants and appellees.{¶ 91} I dissent from the majority’s conclusion that defendant is entitled to no back pay.
{¶ 92} In Stacy I, we held that Stacy’s retirement was involuntary and that he was entitled to reinstatement and back pay. However, in Stacy II, the appeal at issue, we award him nothing, holding, in an ironic twist, that he should have taken the very Laidlaw job that we held he had no obligation to take in Stacy I and that Laidlaw’s higher salary now becomes the measure for his duty to mitigate.
{¶ 93} Then, to add insult to injury, we also add to the Laidlaw salary his School Employees Retirement System (“SERS”) benefits, thereby attributing to Stacy more compensation than his contract had allowed. Therefore, Stacy may recover no back pay.
{¶ 94} While an employee may retire, collect SERS benefits, and become reemployed, he is not required to pursue both retirement benefits and full-time employment to mitigate his damages. We should either credit Stacy for SERS benefits as his efforts at mitigation or hold that he had a duty to mitigate and find another job — not both. Mitigation law does not require a plaintiff to take retirement benefits and a comparable job to recover — nor should the measure of damages encompass both retirement benefits and full-time employment.
{¶ 95} In this case, the court of appeals concluded that jobs similar to Stacy’s were available and paying $25,000 per year. That figure should be the measure of the mitigation damages, not the amount Laidlaw was offering, since we have already held that Stacy was not obligated to take the Laidlaw job. Any other requirement puts the defendant in an untenable position — take the very job that we have held to be illegal or receive no back pay for failure to mitigate.
{¶ 96} Granting mitigation credit for both the Laidlaw job amount and SERS benefits does give the school board a windfall — it ends up liable for nothing. Instead, we should hold either that the plaintiff did mitigate by accepting SERS benefits or that $25,000 per year for comparable mechanical jobs is the measure for mitigation, and award defendant the difference between the amount guaranteed in the continuing contract and either measure of mitigation. To do otherwise would allow the school board to lose the battle but win the war.
{¶ 97} Therefore, I respectfully dissent from the failure to award back pay to Stacy.
Resnick, J., concurs in the foregoing opinion.*4961