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Pittington v. Great Smoky Mountain Lumberjack Feud, LLC, No. 17-5590 (6th Cir. Jan. 24, 2018)

The Sixth Circuit, in a split decision, remands a Title VII retaliation case for a new trial on back pay, and reconsideration of prejudgment interest - holding that the winning plaintiff was conclusively entitled to a greater recovery. It's a reminder to lawyers: whether you're trying a back-pay claim to a jury (as in this case) or to a judge, make sure to offer W-2s or other evidence to substantiate the amount, and to argue methodically for prejudgment interest.

Pittington v. Great Smoky Mountain Lumberjack Feud, LLC, No. 17-5590 (6th Cir. Jan. 24, 2018): plaintiff worked for a theatre company in the entertainment district of Pigeon Forge, Tennessee. After supporting his wife's (also co-worker's) claim of sex harassment, he was demoted, had his hours cut, "segregated from his coworkers and made to work in an unheated, outdoor shack," denied an accommodation for his swollen leg, and ultimately fired.

A jury found the employer liable for retaliation under Title VII, but "declined to award Pittington any compensatory or punitive damages," and only "awarded Pittington $10,000 in back pay" despite that he had sought $40,000 in lost wages. Pittington offered oral testimony about his hourly rate (not challenged by the defendant) and evidence of post-employment earnings (to set off against lost back pay).

The employer's argument at trial was that back-pay had to be limited because Pittington did not try hard enough to locate comparable work for the first 35 weeks and thus failed to mitigate his damages. Yet despite having the burden of proof on mitigation (as an affirmative defense), "Lumberjack provided no evidence regarding the availability of comparable employment in or around Pigeon Forge and made no effort to demonstrate that Pittington's job-search process was unreasonable."

On post-trial motions, the district court denied a new trial on damages. While "it agreed that prejudgment interest on the back pay award was warranted," it granted only the rate set by 28 U.S.C. § 1961(a) - the post-judgment interest statute - which the court determined was 0.66%. The plaintiff appealed from the post-trial orders.

The panel majority remands for further proceedings. It notes that "successful Title VII plaintiff are presumptively entitled to back pay ... to make them whole," and that Pittington proved his losses during his extended period of unemployment. It then holds that the district court erred by placing the burden of proof on plaintiff on mitigation during roughly August/September 2013 to October 2015.

"The district court faulted Pittington for failing (1) to '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''; (2) to submit 'documentation to substantiate his testimony as to his employment or the amounts he earned while employed'; and (3) 'to provide any documentation to support the calculation of his claim for back pay' ... Such critiques were unfounded, as Pittington did not bear the burden of producing evidence as to his efforts at mitigation."

While the defendant averred that the jury could have "inferred" a lack of mitigation during that period, based on the plaintiff's admission "that it is not hard to get a job in Pigeon Forge," the panel majority holds that the record could not support such an inference:

"'Theater employees' ability to retain jobs tells the jury next to nothing about unemployed persons' ability to secure jobs, and Lumberjack provided no evidence from which the jury could infer that jobs comparable to Pittington's position at Lumberjack were readily accessible in Pigeon Forge ... [T]o the extent the district court upheld the jury's damages award on the ground that Lumberjack proved Pittington's failure to mitigate by a preponderance of the evidence, such a determination was a clear error of judgment and an abuse of discretion."

Moreover, the record established that plaintiff's "starting salary at Lumberjack was approximately $8 per hour, ... he did not disagree with opposing counsel's statement that his salary was subsequently raised to $10.50 per hour," and he "worked an average of forty hours per week at Lumberjack." "Such evidence satisfied Pittington's burden of production regarding the gross amount of back pay that he was owed."

The employer also argued that "Pittington failed to prove sufficiently his interim earnings" for set-off purposes, but the panel majority holds that this argument is "legally untenable." "Lumberjack, not Pittington, bore the burden of proving the amount of Pittington's interim earnings between discharge and judgment." While the plaintiff himself "offer[ed] some evidence of his post-termination and pre-mitigation wages," even construing that evidence in favor of the verdict, Pittington was still "entitled to something in the range of $35,000 in damages."

Finally, the employer argued that the jury could have simply found Pittington's testimony not credible. But the panel majority holds that "[t]he jury could not simply disbelieve Pittington's testimony as to his earnings between April 2013 and October 2015 and, on that basis, decide that Pittington was not entitled to any back pay for those thirty months." While a jury is permitted to make credibility determinations, they cannot weigh something against nothing: "the defendant here did not controvert or undermine Pittington's testimony with regard to damages. If anything, Lumberjack introduced evidence that would indicate that Pittington was owed even more in back pay than the amount he claimed."

The panel majority thus remands for the district court to either "secure both parties' consent to" a reasonable estimate of damages, or else "hold a new trial on damages and ensure that, this time, Pittington's back pay award aligns with the proofs." It also remands the 0.66% prejudgment interest rate, holding that the district court erred by not considering the relevant factors to ensure the rate is "fair."

"[E]ven though a court may conclude that certain factors are more pertinent than others under certain circumstances, a court may not apply § 1961 without considering any relevant case-specific factors. Here, the district court's analysis was too terse to satisfy even a narrow reading of [circuit law] requirements."

In dissent, Judge Sutton would affirm the district court post-trial orders. He would find that the plaintiff and his counsel took a calculated risk by not presenting fuller evidence of his losses:

"Pittington chose not to add W-2s, pay stubs, tax returns, or other typical evidence to the record. Perhaps he feared what those documents might reveal about his pay, working hours, or relationship with Lumberjack-including matters that might go to whether the underlying merits of his claim were even valid. Just the same, he chose not to propose alternative methods by which the jury might have calculated an award. He just asked for $40,000, which the majority agrees would have been too much. Perhaps he feared that the jury would seize on any alternative that might result in a lower number. All we know for sure, and all that matters, is that he chose to rely on spotty testimony and his lawyer's skill to make the case that $40,000 was the correct amount."

So the plaintiff prevails here ... but by the skin of his teeth. Wise lawyers will study both opinions and take care to put in enough, and a bit more, on damages and prejudgment interest.

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