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Pittington v. Great Smoky Mountain Lumberjack Feud, LLC

United States District Court, E.D. Tennessee, Knoxville

April 18, 2017



         Plaintiff brought this action against his former employer alleging retaliation under Title VII and the Tennessee Human Rights Act. After a four-day trial, the jury found in favor of plaintiff and awarded him $10, 000 in back pay, but allowed nothing for compensatory or punitive damages. This matter is before the court on the plaintiff's motion to alter/amend the judgment, or in the alternative, for a new trial on damages [R. 76]. Defendant has responded asking the court to deny the motion [R. 82].

         I. Standard of Review

         Rule 59 of the Federal Rules of Civil Procedure states that a court may alter or amend a judgment or may grant a new trial on all or some of the issues. Fed.R.Civ.P. 59(a) and (e). The court may grant a new trial when a jury has reached a seriously erroneous result as evidenced by (1) the verdict being against the weight of the evidence, (2) the damages being excessive, or (3) the trial being unfair to the moving party (i.e., the proceedings were influenced by prejudice or bias). Holmes v. City of Massillon, 78 F.3d 1041, 1045 (6th Cir. 1996). The moving party bears the burden of demonstrating entitlement to relief, and the court must “compare the opposing proofs and weigh the evidence.” Conte v. Gen. Housewares Corp., 215 F.3d 628, 637 (6th Cir. 2000). The governing principle in a court's consideration of a Rule 59(a) motion is whether, in the judgment of the trial judge, such course is required in order to prevent an injustice; and where an injustice will otherwise result, the trial judge has a duty as well as the power to order a new trial. Park West Galleries v. Hochman, 692 F.3d 539, 544 (6th Cir. 2012). The court must grant the motion unless the verdict was one that could have reasonably been reached based on the proof at trial. Powers v. Bayliner Marine Corp., 83 F.3d 789, 796 (6th Cir. 1996).

         Plaintiff moves to amend the judgment, or in the alternative for a new trial on damages on the following grounds (1) his lost wages amounted to approximately $40, 000; (2) he is entitled to prejudgment interest on the back pay award; and (3) he is entitled to an award of front pay because he has been unsuccessful maintaining comparable employment after his termination by defendant.

         II. Back Pay

         Plaintiff seeks amendment of the award of back pay. Although the jury awarded $10, 000 in back pay, plaintiff contends that he is entitled to $40, 632-- the total amount of lost wages resulting from his termination by defendant. Defendant argues that plaintiff failed to present sufficient evidence at trial to warrant any revision to the amount of back pay awarded by the jury. Defendant contends the jury could have considered plaintiff's extended unexplained periods of unemployment and reduced the amount of back pay demanded by plaintiff.

         The goal of Title VII is to make persons whole for injuries suffered on account of unlawful employment discrimination. Ablemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975). Interim earnings or amounts earnable with reasonable diligence operate to reduce the back pay otherwise allowable. Rasimas v. Mich. Dep't of Mental Health, 714 F.2d 614, 625 (6th Cir. 1983). A plaintiff in a Title VII action has a duty to mitigate damages; he may not remain unemployed and collect a windfall. Ford v. Nicks, 866 F.2d 865, 873 (6th Cir. 1989). This mitigation requirement contains a general element of reasonableness - an employee is not required “to go to heroic lengths in attempting to mitigate his damages, but only to take reasonable steps to do so.” Id. A plaintiff's diligence must be examined in light of the individual characteristics of the plaintiff and the job market. Id.

         Once the plaintiff has presented evidence of damages, the defendant has the burden of establishing a failure to properly mitigate damages. Id. at 623. 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.

         Plaintiff testified that following his termination by defendant on October 8, 2012, he was unable to find work until April 2013; he was laid off in August or September 2013. He obtained his next job in May-June 2014; but left that employment in October 2014. He was unemployed until January 2015, but lost his job in September 2015 when his employer went out of business. He obtained another position in October 2015 and was working at the time of trial. In closing argument, plaintiff's counsel estimated lost wages of $40, 632 from October 2012 to the date of trial, less amounts earned by plaintiff during that time.

         Defendant states that plaintiff's testimony consisted of the names of his employers, the dates of his employment, and his rate of pay. Plaintiff did not provide specific testimony regarding the periods of time he was unemployed or his efforts to find employment during those periods other than to state that he “looked for work.” [R. 74, pg 2535]. Plaintiff submitted no documentation to substantiate his testimony as to his employment or the amounts he earned while employed. Nor did plaintiff provide any documentation to support the calculation of his claim for back pay. Therefore, defendant argues plaintiff failed to provide the jury with necessary information needed to determine his damages or to establish his damages with “reasonable certainty.” The court agrees.

         The finding that a plaintiff has/has not exercised reasonable diligence in seeking other suitable employment is an issue of fact for the jury. Rasimus, 714 F.2d at 623. At trial, the parties stipulated to the following jury instruction:

The plaintiff has a duty to mitigate, which means to avoid or reduce damages. The parties stipulate that Mr. Pittington fully mitigated his damages as of October 12, 2015. Thus, any damages awarded in the form of back pay should not go beyond October 12, 2015, as this is the date that Mr. Pittington obtained a new job of like kind, status, and pay.

         This instruction left it up to the jury to decide whether plaintiff attempted to mitigate his damages. In closing argument, defense counsel stated:

They talked about the money damages. I hope we don't get to this part of the case; but if we do, the plaintiff has a duty to mitigate. And one thing that stuck out as the plaintiff was talking about damages, did you hear the time period of 35 weeks unemployed? Pigeon Forge? That's a long time to not get a job in Pigeon Forge. Fifty-two weeks in a year. That means only 17 weeks employed that year. There's a duty to ...

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