United States District Court, E.D. Tennessee, Knoxville
DAVID S. PITTINGTON, Plaintiff,
GREAT SMOKY MOUNTAIN LUMBERJACK FEUD, LLC, Defendant.
MEMORANDUM AND ORDER
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].
Standard of Review
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.
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.
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.
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
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.
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.
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.
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
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.
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 ...