A successful plaintiff on a discrimination claim is presumptively entitled to back pay in an amount to make them whole, "that is, to place [them] in the position [they] would have been in but for discrimination." Rasimas v. Michigan Dept. of Mental Health, 714 F.2d 614, 626 (6th Cir. 1983). Ok, but what is it that a plaintiff has to prove regarding the amount of backpay owed? The Sixth Circuit provided some guidance in its recent decision in Pittington v. Great Smoky Mountain Lumberjack Feud.
Pittington prevailed at trial against his former employer on claims that he was retaliated against for his involvement with his wife's sexual harassment complaint in violation of both Title VII and Tennessee law. The jury wasn't too generous though; it did not award Pittington any compensatory or punitive damages and only $10,000 in back pay, which was only about 25% of what Pittington requested. After the district court refused his motion to order a new trial on damages, Pittington appealed. The Sixth Circuit reversed and ordered the district court to revisit or retry the damages issue.
Pittington's proof at trial regarding backpay was not too specific. The defense attorney suggested to Pittington at trial that he had received a pay raise in defendant's employ to $10.50 per hour, although Pittington himself was not too sure about that. In any event, Pittington's lawyer argued to the jury using an hourly rate of $10.50 multiplied by 40 hours per week (the defense attorney, in addition to suggesting to Pittington that he got a pay raise, also solicited testimony that Pittington sometimes worked more than 40 hours per week) while deducting lesser wages that Pittington earned at other jobs between the time of his firing and trial for a total of $40,632.50. This was enough, the Sixth Circuit ruled, to establish Pigginton's backpay damages with sufficient reasonable certainty, which is all that is required.
The mistake made by the district court, the Court explained, was to assert that it was Pigginton's burden to show that he had acted diligently to mitigate his damages sustained by reason of the former employer's wrongdoing. The Court explained: "Such critiques were unfounded, as Pittington, did not bear the burden of producing evidence as to his efforts at mitigation." So the district court, Hon. Pamela Lynn Reeves of the Eastern District of Tennessee, blew the issue, going at it from exactly the wrong direction.
The defendant-employer failed, the Court explained further, to offer, as was its burden, "evidence indicating that substantially equivalent positions ... were available and that [Pigginton] failed to use reasonable care and diligence in seeking such positions." So it was the employer's burden to show Pigginton had unreasonably failed to mitigate the damage done by its wrongdoing, and merely suggesting criticisms by way of cross-examination was not enough.
Judge Karen Nelson Moore authored the Sixth Circuit's opinion and was joined by Judge Martha Daughtrey; Judge Jeffrey Sutton dissented.
Notwithstanding the Sixth Circuit's ruling, plaintiffs would be well-advised to present themselves evidence of how they labored to mitigate the harm done by the defendant's wrongdoing. Doing so, as a general matter, presents them as a hard-worker and serves to buttress a claim for compensatory damages for emotional distress and mental anguish. Pigginton's proof as to backpay was barely sufficient and only because the defendant's was nonexistent did Pigginton prevail in the Sixth Circuit. Notably, the jury awarded him no emotional distress damages.
Robert L. Abell
www.RobertAbellLaw.com
