Pittington v. Great Smoky Mountain Lumberjack Feud, LLC

880 F.3d 791

David PITTINGTON, Plaintiff-Appellant,

v.GREAT SMOKY MOUNTAIN LUMBERJACK FEUD, LLC, Defendant-Appellee.

No. 17-5590

United States Court of Appeals, Sixth Circuit.

Argued: December 1, 2017

Decided and Filed: January 24, 2018

ARGUED: Jesse D. Nelson, NELSON LAW GROUP, PLLC, Knoxville, Tennessee, for Appellant. Al Holifield, HOLIFIELD JANICH RACHAL & ASSOCIATES, PLLC, Knoxville, Tennessee, for Appellee. ON BRIEF: Jesse D. Nelson, NELSON LAW GROUP, PLLC, Knoxville, Tennessee, for Appellant. Al Holifield, HOLIFIELD JANICH RACHAL & ASSOCIATES, PLLC, Knoxville, Tennessee, for Appellee.

Before: DAUGHTREY, MOORE, and SUTTON, Circuit Judges.

MOORE, J., delivered the opinion of the court in which DAUGHTREY, J., joined. SUTTON, J. (pp. 809–12), delivered a separate dissenting opinion.

KAREN NELSON MOORE, Circuit Judge.

Plaintiffs who successfully prove that they were fired in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") are presumptively entitled to back pay for the amount they would have earned had they not been unlawfully terminated. Such awards are intended to compensate fully plaintiffs for the wrongs that they suffered. For the same reason, an award of prejudgment interest on the back pay owed is also nearly always appropriate. We conclude from these principles that a district court must grant a motion for a new trial as to damages when a jury awards back pay to a Title VII plaintiff in an amount that is substantially less than the damages to which he is indisputably entitled. Once damages are calibrated correctly, the district court should also make an effort to align its award of prejudgment interest (if such interest is requested and warranted) with Title VII’s remedial goals. Because the district court failed to take those steps here, we REVERSE and REMAND for further proceedings consistent with our opinion.

I. BACKGROUND

David Pittington ("Pittington") worked for Great Smoky Mountain Lumberjack Feud, LLC, ("Lumberjack"), a theater company in Pigeon Forge, Tennessee, for five months in 2012 until he was fired in retaliation for supporting his wife (who was also a Lumberjack employee) in her sexual harassment complaint against Lumberjack. See R. 74 (Trial Tr. at 2–3, 15, 43) (Page ID #2534–35, 2547, 2575). Before being fired, Pittington allegedly suffered a number of additional hardships: he was demoted and his duties were diminished; his hours were reduced; he was segregated from his coworkers and made to work in an unheated, outdoor shack; and while in the shack, he was denied access to a padded chair that Lumberjack had previously provided, and which he needed because of a pre-existing medical condition that caused his leg to swell, his back to knot, and his mobility to be impaired if he stood for long periods of time. See R. 1-1 (Am. Compl. ¶¶ 11–16, 20, 24, 28) (Page ID #18–22); R. 74 (Trial Tr. at 11, 29–32) (Page ID #2543, 2561–64). Following his termination, Pittington sued Lumberjack in state court, alleging that Lumberjack took adverse actions against him because of his disability, in violation of the Americans with Disabilities Act ("ADA"), and because of his involvement in his wife’s sexual harassment complaint, in violation of Title VII and the Tennessee Human Rights Act. R. 1-1 (Am. Compl. ¶¶ 17–29) (Page ID #20–22). Lumberjack removed the case to federal court, R. 1 (Notice of Removal) (Page ID #1–2), and the parties ultimately proceeded to trial before a jury.

At trial, Pittington presented the following evidence of his earnings during and after his employment at Lumberjack:

1. Pittington testified that he began working for Lumberjack in June 2012 as a box office clerk. R. 74 (Trial Tr. at 8, 47–48) (Page ID #2540, 2579–80). When asked to approximate his starting salary at Lumberjack, Pittington testified that he earned "[m]aybe $8 an hour" to start. Id. at 8 (Page ID #2540).

2. Pittington recalled receiving two promotions while working at Lumberjack. Soon after he joined Lumberjack, he was promoted from "box office clerk" to "a.m. lead." Id. at 11 (Page ID #2543). He was then promoted again from "lead" to "assistant box office manager." Id. at 12 (Page ID #2544).

3. On cross-examination, Lumberjack’s counsel inquired into Pittington’s pay raises while at Lumberjack. Lumberjack’s counsel asked, "[Y]our testimony is, I think, you received two promotions, but did you not go from $8 to $10.50 [per hour] once you went to a lead, and there w[ere] no other pay raises?" Id. at 48–49 (Page ID #2580–81). Pittington responded that he would "have to see the paper" because he did not "recall off the top of [his] head." Id. at 49 (Page ID #2581). He later testified that, "[o]ff the top of [his] head," he remembered receiving only one pay raise. Id. at 51 (Page ID #2583).

4. Pittington testified that he typically worked eight hours per day for a total of forty hours per week while working at Lumberjack. Id. at 8, 57 (Page ID #2540, 2589). Lumberjack admitted Pittington’s time cards for his "entire time of employment" into evidence. Id. at 93 (Page ID #2625). Lumberjack’s counsel walked Pittington through his time cards on September 28,¹ October 1, October 2, and October 8, 2012. Id. at 58–59 (Page ID #2590–91). Pittington agreed that his time cards for September 28, October 1, and October 2 show that he worked more than eight hours on three of those four days. Id.

5. After being fired from Lumberjack on October 8, 2012, Pittington testified that he did not gain new employment until April 2013. Id. at 2–3, 59 (Page ID #2534–35, 2591). He testified that he "look[ed] for work during that time." Id. at 3 (Page ID #2535).

6. Pittington testified that he was hired in April 2013 by Perry Smith Development. Id. Pittington worked in the corporate office for Perry Smith Development handling guest relations. Id. His pay at Perry Smith Development started at $7.25 per hour. Id. He was laid off by Perry Smith Development after a corporate reorganization. Id. at 4 (Page ID #2536). He was laid off "maybe [in] the end of August, beginning of September." Id. at 3 (Page ID #2535).

7. Pittington testified that his next job was with the Cyrus Family Theater. Id. at 4 (Page ID #2536). That position began in "either May or June" of 2014. Id. He was supposed to receive $500 a week while working there, but his employer "wrote bad checks or just didn’t write a check at all during that time." Id. at 4–5 (Page ID #2536–37). He worked there until October 2014 and received "[m]aybe one or two checks" during that time. Id. at 5 (Page ID #2537).

8. Pittington testified that he was next employed by Sablé Equestrian Theater in January 2015. Id. at 5 (Page ID #2537). He received $500 or $600 per week while there. Id. at 6 (Page ID #2538). He worked at Sablé Equestrian Theater until it went of business in September 2015. Id.

9. Pittington testified that he was next employed by the Clarion Inn, a hotel. Id. at 6 (Page ID #2538). In its jury instructions, the district court informed the jury that "[t]he parties stipulate that Mr. Pittington fully mitigated his damages as of October 12, 2015," when he secured employment at the Clarion Inn, and therefore "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." Pittington , 2017 WL 1393718, at *2.

10. Pittington’s counsel asked Pittington whether it is "hard to keep a good job at a theater in Pigeon Forge." R. 74 (Trial Tr. at 6) (Page ID #2538). Pittington responded: "I wouldn’t say it’s hard to keep a good job. There’s a lot of theaters in town. I’m not sure if it’s exactly hard to keep a job. There’s a lot of theaters that have—some theaters have employees that have been there quite some time." Id. at 6–7 (Page ID #2538–39). He then clarified that it was "common in Pigeon Forge" for theaters to "fold[ ]." Id. at 7 (Page ID #2539).

During his closing remarks, Pittington’s attorney urged the jury to award Pittington $40,632.50 in back pay. R. 91 (Trial Tr. at 15) (Page ID #2984). Counsel reached this number by assuming that Pittington would have received $10.50 per hour and worked an average of forty hours per week had he remained employed by Lumberjack. Id. at 14 (Page ID #2983). He stated that Pittington remained unemployed following his termination from Lumberjack for twenty-eight weeks, and thus was owed $11,760 for that time. Id. Pittington then worked for twenty-one weeks beginning in April 2013, but he did not earn as much at Perry Smith Development as he had at Lumberjack, and thus was, according to his counsel, entitled to $4,252.50 in deficiency wages. Id. He was then unemployed again for thirty-five weeks, which counsel calculated as $14,700 in lost wages. Id. at 14–15 (Page ID #2983–84). Pittington then worked at Cyrus Family Theater from June 2014 to October 2014, but received only two paychecks of $500 each during that time, and therefore counsel argued that Pittington was owed $8,240 in in back pay for those twenty-two weeks. Id. at 15 (Page ID #2984). Pittington was unemployed again for three weeks, and then worked at Sablé Equestrian Theater from January 2015 through September 2015. Id. Because Pittington was "making more [money] at a similar job," Pittington’s attorney conceded that Pittington was not owed any damages for that period. Id. Finally, Pittington was unemployed for another four weeks (after Sablé closed down and before beginning his work at Clarion Inn), and was thereby owed $1,680 in back pay for that period, according to his attorney. Id. All told, the above figures added up to $40,632.50. See id. at 14–15 (Page ID #2983–84).

For his part, Lumberjack’s attorney in closing urged the jury to find that Pittington had failed to mitigate adequately his damages and therefore was not entitled to the full amount of back pay that he requested. In particular, Lumberjack’s counsel stated:

They talked about the money damages. I hope we

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