                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 07a0078n.06
                              Filed: January 31, 2007

                                               No. 05-1333

                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT


GEORGE MARSHALL GRACE, STEVEN T.                             )
LEBOW, and KEVIN P. PILATE, ET AL.,                          )
                                                             )
          Plaintiffs-Appellants,                             )
                                                             )
v.                                                           )   On Appeal from the United States
                                                             )   District Court for the Eastern
CITY OF DETROIT,                                             )   District of Michigan
                                                             )
          Defendant-Appellee.                                )




Before:          BOGGS, Chief Judge; BATCHELDER, Circuit Judge; and WEBER, District Judge.*

                 PER CURIAM.

          This case, before the court on interlocutory appeal from the district court’s order adopting in

part and rejecting in part the special master’s findings of fact and conclusions of law regarding

damages resulting from a § 1983 class action, involves mitigation of damages. For the following

reasons, we AFFIRM the decision of the district court.

                                                     I




          *
        The Honorable Herman J. Weber, United States District Judge for the Southern District of
Ohio, sitting by designation.

                                                    1
 No. 05-1333
 Grace v. Detroit

        On April 17, 1990, George Marshall Grace, Steven T. Lebow, and Kevin P. Pilate filed a

complaint in the United States District Court for the Eastern District of Michigan under 42 U.S.C.

§ 1983, on behalf of a putative class comprising those who had applied for and been denied

employment with the City of Detroit because of the City’s pre-employment residency requirements.

They alleged that the requirements violated their right to travel under the Equal Protection Clause of

the Fourteenth Amendment of the United States Constitution and a provision of the Michigan

Constitution. They sought declaratory and injunctive relief and money damages.

        The district court, on March 5, 1991, certified the action to proceed “upon behalf of a class

composed of all past, present and future applicants for employment with the City of Detroit, including

those who would have applied but for the City’s pre-employment residency requirement(s), whose

applications have since April 17, 1987, been discouraged, delayed, denied, refused or rejected on the

basis of the City’s pre-employment residency requirement(s).”

        On cross-motions for summary judgment, the district court, in a memorandum opinion and

order dated April 5, 1991, granted partial summary judgment to plaintiffs as to liability. The district

court stated that the “practical effect” of the City’s pre-employment residency requirements “is to

impose a residency requirement of substantial duration, for the mere opportunity to compete and

without any certainty of ultimate success.” The district court found that the City’s requirements were

unconstitutional under either the strict scrutiny or rational basis tests, as violations of the fundamental

constitutional right to travel, and enjoined Detroit from enforcing its pre-employment residency

requirements.



                                                    2
 No. 05-1333
 Grace v. Detroit

        On January 2, 1992, the district court “entered a Stipulation and Order directing that

representative plaintiffs take responsibility for notifying members of the class of this Court’s liability

determination and the steps necessary to obtain relief.” On April 9, 1992, it entered judgment of

liability for those plaintiffs who had timely filed claims, and stated that further proceedings would

be in the nature of postjudgment determinations of damages to be awarded to those who had filed

timely claims. In May 1993, the district court appointed a special master pursuant to Fed. R. Civ.

P. 53 to take evidence and issue a report and recommendation regarding the following issues:

        1. Which members of the plaintiff class who filed timely claims are entitled to relief,
        as the result of the Court’s finding of liability dated April 5, 1991?
        2. With respect to each such class member found entitled to relief, what is the amount
        of economic damages to which he or she is entitled?
        3. With respect to each such class member found entitled to relief, is he or she
        entitled to non-economic damages?

        The special master eventually produced over twenty reports (and various addenda) awarding

damages or nominal damages, or denying liability, to the more than five hundred claimants. Those

reports and addenda were met with objections from the plaintiffs. On March 29, 2004, the special

master issued a “Special Report to the Court Regarding Damages,” outlining the legal principles the

special master applied in making his recommendations regarding damages as to each of the class

members.

        In that report, the special master stated that he had found liability where a claimant “could

have been successful in applying for a city position, but for the residency requirement.” The special

master found general congruence between the remedies afforded under Title VII cases and § 1983

cases. Citing Suggs v. ServiceMaster Education Food Management, 72 F.3d 1228, 1233 (6th Cir.


                                                    3
 No. 05-1333
 Grace v. Detroit

1996), and EEOC v. Wilson Metal Casket Co., 24 F.3d 836, 840 (6th Cir. 1994)–two Title VII

unlawful discharge cases that stated that plaintiffs were presumptively entitled to backpay, with the

end date being the date of judgment–the special master stated that, under either Title VII or § 1983,

the purpose of “an award” is to make plaintiffs whole.

       In exploring the issue of when liability to the various plaintiffs should end in the present case,

the special master considered the issues of mitigation. He described the seminal Title VII mitigation

of damages cases, Ford Motor Co. v. EEOC, 458 U.S. 219 (1982), and Rasimas v. Michigan

Department of Mental Health, 714 F.2d 614 (6th Cir. 1983), which laid out general rules and

principles for mitigation, and then the Sixth Circuit’s decision in United States v. City of Warren, 138

F.3d 1083, 1098-99 (6th Cir. 1998), which held in relevant part that a Title VII claimant who was not

hired due to discriminatory employment practices was not precluded from a backpay award simply

because he did not reapply to the same employer after it eliminated its discriminatory practices.

       With respect to when liability should end as to the plaintiffs in the present case, the special

master explained that he had determined liability and when that liability should end for each of the

hundreds of claimants. He noted that most but not all of the claimants in this case had sought police

or fire positions with the City. He stated that, while the district court’s injunction in the case issued

on April 5, 1991, he assumed that not all members of the class would have heard about it then, despite

the injunction having been in the news. The special master continued:

               By direction of the court, claim forms were published in local newspapers.
       Included in those claim forms were the details regarding the injunction and the
       instruction that the claim forms were to be filed with the court by April 1, 1992.
       Other claim forms were available that did not contain the details regarding the
       injunction; these basic, one-page forms did contain the April 1, 1992 deadline for

                                                   4
No. 05-1333
Grace v. Detroit

       filing with the court. Each individual named as a claimant in this case would
       necessarily have had to fill out a claim form. Even if the claimant did not get their
       [sic] form from a newspaper, an individual who filled out a claim form maintaining
       an action against the city for a constitutional violation would be put on notice that the
       specified hiring practice was no longer sanctioned and thus not in practice by the City.
       Either way it would therefore seem that by the time an individual filed a written claim,
       that individual had knowledge of the injunction by April 1, 1992.

Detailing the police department’s hiring practices during the period in question (and stating that the

principles therein discussed applied to his decisions concerning applicants to the City’s other

departments), the special master noted that the police department had a hiring moratorium in place

in 1992 and that it did not have an academy class from 1989 until February 1993; while an application

would be placed in a processing queue when received during that period, the circumstances would

have deterred many from reapplying even if they did know about the injunction.

       The special master proceeded to apply the Sixth Circuit’s Rasimas mitigation test to the

questions in this case concerning the City’s liability (and dates thereof) to police officer applicants

rejected under the pre-employment residency requirement. In Rasimas, citing Ford Motor, we stated

that the duty to mitigate “has ancient origins, and operates to prevent claimants from recovering for

damages which they could have avoided through reasonable diligence.” 714 F.2d at 623. We added

that a finding that a claimant had exercised reasonable diligence in seeking other suitable employment

after discriminatory discharge is an issue of fact, reviewable on appeal under the “clearly erroneous”

standard of Fed. R. Civ. P. 52(a). Ibid. We stated:

       Once a claimant establishes a prima facie case and presents evidence on the issue of
       damages, the burden of producing sufficient evidence to establish the amount of
       interim earnings or lack of diligence shifts to the defendant. The Defendant may
       satisfy his burden only if he establishes that: 1) there were substantially equivalent


                                                  5
 No. 05-1333
 Grace v. Detroit

        positions which were available; and 2) the claimant failed to use reasonable care and
        diligence in seeking such positions.

Id. at 623-24 (internal citations omitted).

        Elaborating on that test, we stated, with respect to the first part of the test:

        We hold that the substantial equivalent of the position from which the claimant was
        discriminatorily terminated must afford the claimant virtually identical promotional
        opportunities, compensation, job responsibilities, working conditions, and status. See
        [Ford Motor, 458 U.S. at 231-32] (“Although the un- or underemployed claimant
        need not go into another line of work, accept a demotion, or take a demeaning
        position, he forfeits his right to backpay if he refuses a job substantially equivalent to
        the one he was denied.”); McCann Steel Co. v. NLRB, 570 F.2d 652, 655 (6th Cir.
        1978) (“We believe that substantially equivalent employment refers to the hours
        worked . . . as well as the nature of the work there.”) . . . .

Rasimas, 714 F.2d at 624. Regarding the second part of the test, the we added:

        A claimant is only required to make reasonable efforts to mitigate damages, and is not
        held to the highest standards of diligence. The claimant’s burden is not onerous, and
        does not require him to be successful in mitigation. The reasonableness of the effort
        to find substantially equivalent employment should be evaluated in light of the
        individual characteristics of the claimant and the job market.

Ibid. (internal citations omitted).

        The special master noted that the Detroit Police Department is the largest employer of police

officers in the state and thus has the ability to hire relatively larger numbers than other jurisdictions,

and that “although the pay is generally higher in smaller outlying cities and townships, the Detroit

department does not require a college degree and the opportunity for a variety of specialties and

advancement is unparalleled [with the Detroit PD].” The special master also stated that although

other police departments were hiring during Detroit’s police hiring moratorium, “the prospect of

obtaining a police position in adjacent cities was drastically reduced based on the additional


                                                    6
 No. 05-1333
 Grace v. Detroit

requirement of a degree and the minimal number of officers hired.” The special master, pointing to

the “virtually identical” language used in Rasimas, arrived at the conclusion that, under the

circumstances here, the only employment substantially equivalent to being a Detroit police officer is

being a Detroit police officer, and thus “only when the Detroit Police Department was hiring again

in 1993 would substantially equivalent positions be available.”

       In October 1993, the Detroit Police Department sent by uncertified mail letters “inviting

people” to take the Michigan Law Enforcement Officer Training Council (MLEOTC) test (both a

physical and written test), the passing of which is a requirement for employment, in an attempt “to

mitigate.” The special master declared that those who did not take the exam by October 1993 had

“lost interest” in Detroit positions, and–because in his analysis Detroit Police Department work was

unique, with no substantially equivalent position–they therefore failed the second part of the Rasimas

mitigation test, i.e., failure to use reasonable care and diligence in seeking equivalent positions as of

that time. While claimants would most likely have had notice of the injunction by April 1, 1992, the

special master reasoned that by October 1, 1993, they would have known that the injunction had

issued and that the department was hiring, whether as a result of receiving the letter or by their own

inquiries. As such, according to the special master, an individual who applied to other

departments–which had smaller “hiring ability and more stringent requirements”–without reapplying

to Detroit would be deemed not to have been reasonable in attempting to mitigate damages, and

“liability will be cut off as of October 1, 1993.” The same rule would obtain where individuals did

not apply to any other police departments, or where they received the October 1993 letter from the

Detroit Police Department and did not reapply.

                                                   7
No. 05-1333
Grace v. Detroit

       The special master then applied to his analysis an “exception” that he derived from United

States v. City of Warren. In that case, discussed more fully below, we held that an applicant to the

City of Warren’s police department who had not been allowed to apply on the basis of a

preapplication residency requirement that violated Title VII because of disparate impact on black

citizens, and who subsequently joined the Detroit Police Department, did not fail to mitigate his

damages when he did not reapply with the City of Warren Police Department once the residency

requirement had been eliminated. 138 F.3d at 1091, 1098. In so ruling, the City of Warren court

found that the claimant’s work as a police officer in Detroit was “comparable employment” to work

as a police officer in the City of Warren.

       The special master stated that, as a consequence of City of Warren,

       if an individual has been hired in as a police officer at another department [i.e., not
       Detroit], this will be seen by this Special Master as fulfilling the duty to mitigate and
       liability will not be terminated. . . . [T]he duty to mitigate only mandates that a
       claimant find a comparable position[;] once a position has been found, analogous to
       the Sixth Circuit’s ruling in Warren, there is no requirement that a claimant come
       back to the employer who rejected their application due to an unconstitutional
       practice.

       The special master did note that different considerations would come into play in cases where

the claimant only received part-time or reserve work with other police departments. And the special

master recognized that “[i]n other cases nominal damages would be appropriate, when, as a practical

matter, a claimant earned more in another department than he or she would have earned as a Detroit

police officer.” Where the special master found no damages to the applicant caused by Detroit’s

preapplication residency requirement, e.g., when an individual made more money than he would have

in the Detroit job, he recommended that only nominal damages of one dollar be awarded. Ibid.

                                                  8
 No. 05-1333
 Grace v. Detroit

       The special master also noted that he applied the same Rasimas analysis regarding the Detroit

Police Department to the other departments, so that, for example, the only substantially equivalent

employment to work with the Detroit Fire Department was work with the Detroit Fire Department,

because the Detroit Fire Department was bigger than others in Michigan and generally had lower

entry requirements than suburban departments. He applied cut-off dates by which individuals had

to reapply or else not be considered to have mitigated damages depending on when the department

in question was hiring, when the applicants would have known about it, and so on, also taking into

account the chances of being hired.

       The City of Detroit did not object to the special master’s various reports or his special report

on how he arrived at his conclusions. The plaintiff filed objections to the special master’s findings

of fact and law concerning thirty-seven of the more than five hundred claimants. The objections to

twenty-nine of those thirty-seven dealt, as the district court noted, “with the issues of mitigation of

damages and the liability cut-off date.” Those are the plaintiffs and issues before us on this

interlocutory appeal.

       In reviewing the special master’s report in a memorandum opinion and order of October 20,

2004, the district court found that, as the parties agreed, the law of mitigation of damages is

determined in this circuit by the Supreme Court’s decision in Ford Motor and the Sixth Circuit’s

opinions in Rasimas and City of Warren. The district court agreed with the special master’s reading

of Ford Motor and of Rasimas, but disagreed with his interpretation of City of Warren, as to how

those decisions applied “to this case of true first impression in this circuit.”



                                                   9
 No. 05-1333
 Grace v. Detroit

        The district court adopted the special master’s application of the Rasimas two-part mitigation

test to this case to the extent that the only substantially equivalent positions to Detroit police or fire

employment were those positions, and thus that a) substantially equivalent positions for disappointed

applicants to those departments did not exist until after the requirement had been lifted and those

departments hired again; and b) once that occurred, those applicants had to reapply in order to

mitigate damages.

        The court further adopted the special master’s application to this case of what the district court

called “the ‘loss of interest’ doctrine,” agreeing with the special master that if an applicant did not

reapply with Detroit, that would constitute a failure to mitigate, and liability would be tolled as of the

relevant date established for the circumstances of the particular department.

        With respect to City of Warren, the district court stated that in that case the preapplication

residency requirement constituted disparate impact race discrimination under Title VII, and that the

present case was not a Title VII or race discrimination case; the district court held that “Warren

should be read narrowly and stands for the proposition that Title VII discriminatees are not required

to return to the discriminatory employer to reapply for a position in order to mitigate damages once

a comparable position is obtained.” The court found that applying City of Warren in this context

“would result in inequitable results.” The district court made that determination on the following

grounds:

        Title VII discriminatees are not required to reapply with the discriminatory employer
        in order to mitigate damages because of the nature of the racially invidious
        discrimination. Whereas here, where the discrimination was based solely on a
        geographical requirement and not an inherently personal trait such as race or religion,


                                                   10
No. 05-1333
Grace v. Detroit

       it is not unreasonable to require each claimant to return to the employer who
       discriminated against them.

        Plaintiffs moved to have the district court certify an interlocutory appeal under 28 U.S.C. §

1292(b). The motion stated that the controlling question of law presented by the district court’s order

that should be reviewed on interlocutory appeal is “whether claimants who have been denied

employment on the basis of the City of Detroit’s pre-employment residency requirement(s) are

properly denied damages if they failed to reapply for employment with the City, once the pre-

employment residency requirement(s) were enjoined.”

       The district court granted the motion, explaining that its October 18, 2004, opinion and order

involved a controlling question of law as to which there is a substantial ground for difference of

opinion and that an immediate appeal from the order may materially advance the litigation. At the

same time, it issued an order of reference to the special master for additional proceedings, which

indicated that the interlocutory appeal concerned the “mitigation of damages” issue, and which

directed the special master to make alternative recommendations for claimants affected by its order

and the interlocutory appeal: first, based upon its order, and second, on the assumption that the

plaintiffs would win on this appeal.

       We granted the petition for permission to appeal.

                                                  II

                                                  A




                                                  11
 No. 05-1333
 Grace v. Detroit

        The plaintiffs urge that this interlocutory appeal does not challenge findings of fact but instead

challenges “the purely legal issue of the District Court’s interpretation of the mitigation doctrine,” and

that the standard of review is de novo.

        In 2001, we held:

        Because this is an interlocutory appeal, we have no authority to review the district
        court’s findings of fact, but must confine our review to pure questions of law. See
        Foster Wheeler Energy Corp. v. Metro[.] Knox Solid Waste Auth., Inc.[,] 970 F.2d
        199, 202 (6th Cir. 1992). We review the district court’s conclusions of law de novo.
        Barnes v. Winchell, 105 F.3d 1111, 1115 (6th Cir. 1997).

Nw. Ohio Adm’rs, Inc. v. Walcher & Fox, Inc., 270 F.3d 1018, 1023 (6th Cir. 2001).

        Thus, we review de novo the question of whether the relevant holding in City of Warren–that

the plaintiff did not have to reapply to the Warren Police Department after Warren had ceased

discriminating in order to mitigate damages–applies in this case. Generally, whether a claimant has

mitigated damages, however, is an issue of fact. City of Warren, 138 F.3d at 1098 n.13. See also

Killian v. Yorozu Auto. Tenn., Inc., 454 F.3d 549, 556 (6th Cir. 2006); Rasimas, 714 F.3d at 623. The

district court’s finding that the only substantial equivalent of employment with the Detroit

departments is employment with the Detroit departments–which the plaintiffs vigorously contest–is

a finding of fact, and we do not review it on interlocutory appeal.1


         1
          In City of Warren, the Title VII case the plaintiffs here assert means that they did not have
 to reapply with Detroit, and that the district court and Detroit claim is not applicable, the Sixth
 Circuit stated that

         [g]enerally, on appeal the mitigation of damages is an issue of fact subject to the
         clearly erroneous standard of review. See Rasimas, 714 F.2d at 623. However, in
         this case, we are not examining the factual circumstances of Fears’s mitigation.
         Rather, we are determining whether the district court should have awarded back pay

                                                   12
No. 05-1333
Grace v. Detroit

                                                   B

       In Carey v. Piphus, 435 U.S. 247 (1978), the Supreme Court made clear that compensation

for actual injuries suffered is the basis for compensatory damages under § 1983; without actual injury,

nominal damages may be awarded. See also Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299,

307 (1986). In Meyers v. City of Cincinnati, 14 F.3d 1115, 1119 (6th Cir. 1994), we stated that

plaintiffs seeking damages under § 1983 have a duty to mitigate, and in making that statement

imported mitigation doctrine from this circuit’s seminal Title VII mitigation case, Rasimas:

       In a § 1983 case the plaintiff has a duty to mitigate damages. See Rolfe v. County Bd.
       of Educ., 391 F.2d 77, 81 (6th Cir. 1968). . . . Rasimas unequivocally establishes that
       once the plaintiff has presented evidence of damages, the defendant has the burden of
       establishing a failure to properly mitigate damages. [Rasimas, 714 F.2d] at 623-24.
       To satisfy this burden the defendant must establish that substantially equivalent
       positions were available and that the plaintiff failed to exercise reasonable care and
       diligence in seeking those positions. Id. at 624.

Courts have generally treated remedies under § 1983 and Title VII as comparable. See Squires v.

Bonser, 54 F.3d 168, 172 (3d Cir. 1995).

       The plaintiffs contest the district court’s limitation of the mitigation principles stated by this

court in City of Warren. In that case, the United States brought suit against the City of Warren,

alleging, in relevant part, that its pre-application residency requirement resulted in disparate impact

against blacks under Title VII. Joseph Fears attempted to apply for a position with the Warren Police

Department in 1979, was not allowed to apply on the basis of the pre-application residency



        despite Fears’s delay in reapplying for the position. . . . the award and calculation of
        back pay is subject to review for an abuse of discretion. See Wilson Metal Casket
        Co., 24 F.3d at 840.

City of Warren, 138 F.3d at 1098 n.13.

                                                  13
No. 05-1333
Grace v. Detroit

requirement, and subsequently worked as a Detroit police officer from 1985 to 1990, at which point

he was terminated for misconduct. The district court awarded Fears back pay with a cut-off date of

the time he was terminated from the Detroit Police Department, which the United States did not

contest. 138 F.3d at 1091, 1098.

       Warren argued that the district court abused its discretion in awarding back pay, because Fears

waited until 1991, seven years after Warren eliminated the residency requirement for police

applicants, to reapply with the Warren Police Department, which Warren asserted constituted a failure

to mitigate damages.2 Id. at 1098. We stated:

       In an apparent case of first impression, Warren asks us to consider whether a Title VII
       claimant who was never hired because of discriminatory employment practices is
       precluded from a backpay award because he did not reapply for work with the same
       employer when it eliminated its discriminatory practices. The district court found that
       Fears’s failure to reapply to the City of Warren did not equal a failure to mitigate
       damages, and therefore, did not preclude his back pay award. We affirm the district
       court’s decision.
               A Title VII claimant has a duty to mitigate damages by seeking substantially
       equivalent employment. . . . In this case, Fears worked as an officer with the Detroit
       Police department from July 1985 to November 1990. He therefore found and
       pursued employment comparable to that he would have enjoyed with the City of
       Warren absent discrimination. Thus, Fears’s work as a Detroit police officer satisfies
       Title VII’s requirement that he mitigate his damages.
               Warren asks us to reach the inequitable conclusion that Fears should have been
       aware of the City’s elimination of its residency requirement for police applicants in


        2
         Warren eliminated its “residency requirement” for police and firefighters following a 1984
Michigan Court of Appeals ruling that the requirement violated applicants’ constitutional right to
travel. 138 F.3d at 1088 n.1. The United States filed suit under Title VII in 1986 in the case that led
to the City of Warren decision by this court, alleging a pattern or practice of discrimination on the
basis of race and citing the city’s preapplication residency requirement and its recruitment practices.
In 1991, the district court held that the “preapplication residency requirement” violated Title VII.
Id. at 1088-89. Thus, unlike in this case, the event that Warren alleged should have triggered Fears’s
duty to reapply in order to mitigate damages–the elimination of the residency requirement–did not
come about as a result of the litigation in the federal district court. (It had already occurred.)

                                                 14
 No. 05-1333
 Grace v. Detroit

       1984 and he was therefore obligated to reapply to the Warren police force after he had
       been working in Detroit. We decline to reach this result. No established authority
       requires Title VII claimants who have found comparable employment to reapply for
       positions with employers who have previously refused to hire them for discriminatory
       reasons. This is simply not a hoop Title VII requires claimants to jump through, and
       we will not be the first to require it.

138 F.3d at 1098. The plaintiffs here argue that the mitigation principle in City of Warren is directly

on point and should apply here, and that the district court erred in limiting its applicability only in

Title VII cases involving an “inherently personal trait.”

       Detroit counters that the district court’s interpretation should be adopted, and points to

Nagarajan v. Tennessee State University, No. 98-5169, 1999 WL 551360 (6th Cir. July 19, 1999)

(unpublished), as an illustration of the logic that underlies limiting the City of Warren principle to

Title VII cases. In Nagarajan, a Title VII case, the employer was found to have discriminated against

the plaintiff, a former tenure-track associate professor, by denying him tenure and promotion on the

basis of national origin. The plaintiff was awarded reinstatement, back pay, and other damages.

Nagarajan had been rejected twice for tenure and then secured an attorney who wrote to the employer.

The employer then invited him to reapply for tenure; after Nagarajan filed a charge with the EEOC,

the employer again invited Nagarajan to reapply for tenure. 1999 WL 551360 at *1-2. The Sixth

Circuit, reviewing the district court’s determination of reasonable diligence (from the Rasimas test)

for clear error and stating that it would only overturn a grant or denial of back pay upon abuse of

discretion, held that the district court did not clearly err when it found that Nagarajan had reasonably

refused to reapply for tenure and that he had otherwise mitigated his damages by engaging in an

extensive job search. Nagarajan did not fail to mitigate when he did not reapply, as he believed it was

futile based on his prior experience, and “was justifiably skeptical about the promotion and tenure

                                                  15
 No. 05-1333
 Grace v. Detroit

application process due to the substantial discrimination he witnessed throughout his previous

application proceedings.” Id. at *3, *4. The Sixth Circuit stated that “[w]e therefore conclude that

the plaintiff had a reasonable basis for believing that he would not ever be treated fairly in the

promotion and tenure application process at TSU.” Id. at *4.

       In this case, the special master and district court found, in applying the first part of the

Rasimas mitigation test, that the only positions substantially equivalent to those with Detroit were

those with Detroit. The plaintiffs attack this determination. This finding of fact is not duplicated in

any other relevant case, but it is a question of fact, and thus not reviewable on interlocutory appeal.

It is not antithetical to existing precedent. Having made that determination, the special master and

district court then concluded, following the second part of the Rasimas test, that the plaintiffs were

obliged to have reapplied with Detroit in order to have exercised reasonable care and diligence in

seeking substantially equivalent positions. In most respects, that determination actually cuts in favor

of the plaintiffs, as it allows them to collect back pay until the time they reapplied (or should have,

according to the special master/district court), rather than simply the time they secured some

employment.

       The question then becomes whether City of Warren means that these plaintiffs, especially

those who applied for police positions, did not have to reapply for the jobs in order to mitigate

damages. We think that it does not. That case found that employment with the Detroit Police

Department was comparable to employment with the Warren Police Department under those

circumstances; the district court here found that work for Detroit was unique. Furthermore, the

language of Warren suggests that its rule that the plaintiff did not have to reapply in order to mitigate



                                                   16
 No. 05-1333
 Grace v. Detroit

damages was based at least in part on the fact of invidious (in that case, racial) discrimination on the

part of the defendant: “No established authority requires Title VII claimants who have found

comparable employment to reapply for positions with employers who have previously refused to hire

them for discriminatory reasons.” City of Warren, 138 F.3d at 1098 (emphasis added). That same

logic was used explicitly in Nagarajan, as discussed above. In this case, which does not involve a

claim of racial discrimination, there is much less reason to find odious a rule that a plaintiff must

reapply with the defendant once the offending policy is removed. We acknowledge, however, that

the circumstances and lower-court findings in this case are most unusual. We limit the ruling that the

plaintiffs must have reapplied to the defendant in order to have satisfied their duty to mitigate

damages to the facts of this case.

                                                    C

        The plaintiffs also challenge the district court’s determination that the Supreme Court’s ruling

in Ford Motor does not mean that an employer must give a claimant an unconditional offer of

employment in order to stop back pay liability, and that an employer’s invitation to a claimant to

reapply for a position can under some circumstances stop liability. We need not reach that issue,

however, because the focus of this case is not what the defendant was or was not required to do in

order to toll liability, but rather what the plaintiffs did or did not have to do, under the circumstances,

to mitigate damages. On that issue, we find that the district court did not err in determining that the

plaintiffs were required to reapply with Detroit in order to mitigate damages, in light of its finding

that employment with Detroit was unique, and the nature of the constitutional violation established.

        For the foregoing reasons, we AFFIRM the decision of the district court.



                                                    17
No. 05-1333
Grace v. Detroit




                   18
