Indiana State Symphony Society, Inc. v. Ziedonis
359 N.E.2d 253, 1976 Ind. App. LEXIS 1091, 171 Ind. App. 292 (1976)
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Rule of Law:
In a wrongful discharge action, while the employer bears the initial burden of showing that the employee obtained subsequent employment to mitigate damages, the burden then shifts to the employee to prove any expenses that should be deducted from those subsequent earnings.
Facts:
- Ziedonis was employed as a violinist by the Indianapolis Symphony Orchestra (Symphony) under a written employment contract incorporating a Master Agreement.
- On March 30, 1967, Symphony notified Ziedonis that his employment would be terminated at the end of the following season, a discharge permitted under the contract.
- On April 13 and 14, 1967, Ziedonis failed to appear for two scheduled tour-concerts.
- On April 15, 1967, Symphony sent a telegram immediately discharging Ziedonis for cause, citing his absences from the concerts.
- Ziedonis argued his absence from the first concert was excused and his attendance at the second was prevented by circumstances beyond his control.
- Following his immediate termination, Ziedonis earned $3,430 playing for two out-of-town orchestras during the period covered by his Symphony contract.
Procedural Posture:
- Ziedonis sued Symphony in an Indiana trial court for breach of his employment contract.
- A jury returned a verdict in favor of Ziedonis, awarding him $6,335.00 in damages.
- Symphony's motion for judgment on the evidence was denied by the trial court.
- Symphony, as appellant, appealed the judgment to the Court of Appeals of Indiana, against appellee Ziedonis.
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Issue:
In a wrongful discharge case, once the defendant-employer shows that the plaintiff-employee earned income from subsequent employment, does the burden of proof shift to the employee to prove that expenses reduced that income for the purpose of calculating mitigated damages?
Opinions:
Majority - White, J.
Yes. When a wrongfully discharged employee obtains alternate employment, the burden shifts to that employee to prove any expenses incurred that would reduce the income to be offset against the damages award. The court adopted the reasoning of the concurring opinion to form its majority holding on the issue of damages. Because Ziedonis earned $3,430 from other orchestras—work he irrefutably could not have performed had he remained employed by Symphony—that amount must be deducted from his damages. Although the authoring judge personally believed the burden should have remained with the employer, the court's holding is that Ziedonis failed to carry his burden of proving his expenses, so the entire gross amount of his subsequent earnings must be deducted.
Concurring - Buchanan, P.J.
Yes. Once an employer shows that a wrongfully discharged employee earned income from other employment, the burden is on the employee to prove any expenses that should offset those earnings. While an employer typically has the burden of proving that an employee failed to mitigate damages, here the employee himself testified to his earnings. The employee is in the best position to know and prove his own expenses, and it would be unreasonable to saddle the defendant-employer with the burden of proving them. Therefore, without proof of expenses from the employee, the gross amount earned in mitigation must be deducted from the damage award.
Analysis:
This decision clarifies the allocation of the burden of proof regarding the mitigation of damages in wrongful discharge cases in Indiana. It establishes a burden-shifting framework where, once an employer demonstrates that the former employee earned money, the employee must then affirmatively prove any offsetting expenses. This holding makes it more difficult for a plaintiff to recover the full measure of lost wages if they have any subsequent earnings, as the onus is on them to provide evidence of their net profit from the new employment. This aligns with the evidentiary principle that the party with superior access to the information (the employee, regarding their own expenses) should bear the burden of proving it.
