McClinton v. Capstone Logistics LLC

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

RICHARD J. MCCLINTON, )

)

Plaintiff, )

)

v. )

Case No.: 2:20-cv-543-AMM

)

COGENCY GLOBAL, INC., )

d/b/a CAPSTONE LOGISTICS, )

LLC, )

)

Defendant. )

MEMORANDUM OPINION

This case is before the court on post-trial motions. Defendant Capstone

Logistics, LLC (“Capstone”) filed a renewed motion for judgment as a matter of

law, a motion for a new trial, and a motion for a remittitur in the alternative. Doc.

175. Plaintiff Richard McClinton filed a motion for attorney’s fees and expenses,

Doc. 178, and a motion to alter or amend the final judgment to include equitable

relief. Doc. 180.

For the reasons stated below, Capstone’s renewed motion for judgment as a

matter of law is DENIED. Its motion for a new trial is also DENIED. Its motion for

a remittitur is GRANTED IN PART and DENIED IN PART. Mr. McClinton’s

motion for attorney’s fees and expenses is GRANTED. Mr. McClinton’s motion to

alter or amend the final judgment is GRANTED.

I. BACKGROUND

Based on the parties’ stipulations, the following facts are undisputed. In 2017,

“Capstone’s employees unload[ed] trucks at a Dollar General warehouse in

Bessemer, Alabama.” See Doc. 101 at 3 (“Undisputed Facts”). “On July 31, 2017,

[Mr.] McClinton began working for Capstone as a Second Shift Supervisor at the

Bessemer, Alabama warehouse.” Id. “[Mr.] McClinton supervised ‘unloaders’ that

[were] responsible for unloading freight and placing it onto pallets for distribution

by Dollar General.” Id. Mr. McClinton “worked under the direct supervision of . . .

Donald Langley.” Id. Capstone terminated Mr. McClinton’s employment on April

22, 2019. Id. at 2.

Mr. McClinton filed this action on April 21, 2020, alleging violations of the

Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., the

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the Family

Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. Mr. McClinton’s second

amended complaint asserted six claims against Capstone. Doc. 32. Count One

alleged disparate treatment under the ADA. Count Two alleged retaliation under the

ADA. Count Three alleged denial of reasonable accommodations under the ADA.

Count Four alleged discrimination under the ADEA. Count Five alleged interference

with Mr. McClinton’s substantive rights under the FMLA. Count Six alleged

retaliation under the FMLA. Capstone moved for summary judgment on all six

claims, Doc. 65, which was denied, Doc. 87.

After a four-day trial, the jury returned a verdict in favor of Mr. McClinton on

four of the six claims. For the ADA disparate treatment claim, the jury found that:

(1) Mr. McClinton had a disability; (2) Mr. McClinton was a qualified individual;

(3) Capstone fired Mr. McClinton because of his disability. Doc. 162 at 3. The jury

found that Mr. McClinton should be awarded $272,000 in net loss of wages and

benefits to the date of the verdict, and $200,000 for emotional pain and mental

anguish; the jury also found that Capstone should be assessed $544,000 in punitive

damages. Id. at 3–4.

For the ADA reasonable accommodation claim, the jury found that: (1) Mr.

McClinton had a disability; (2) Mr. McClinton was a qualified individual; (3)

Capstone knew of Mr. McClinton’s disability; (4) Mr. McClinton requested an

accommodation; (5) a reasonable accommodation existed that would have allowed

Mr. McClinton to perform the essential functions of the job; (6) Capstone failed to

provide a reasonable accommodation; (7) Capstone did not make good faith efforts

to identify and make a reasonable accommodation for Mr. McClinton; (8) Mr.

McClinton’s requested accommodation would not have imposed an undue hardship

on the operation of Capstone’s business. Id. at 5–7. The jury found that Mr.

McClinton should be awarded $272,000 in net loss of wages and benefits to the date

of the verdict, and $200,000 for emotional pain and mental anguish; the jury also

found that Capstone should be assessed $544,000 in punitive damages. Id. at 7–8.

For the ADA retaliation claim, the jury found that: (1) Mr. McClinton engaged

in protected activity; (2) Capstone took adverse employment action because of Mr.

McClinton’s protected activity; (3) Mr. McClinton suffered damages because of the

adverse employment action. Id. at 9. The jury found that Mr. McClinton should be

awarded $272,000 in net loss of wages and benefits to the date of the verdict, and

$200,000 for emotional pain and mental anguish; the jury also found that Capstone

should be assessed $544,000 in punitive damages. Id. at 9–10.

For the FMLA interference claim, the jury found that: (1) Mr. McClinton was

entitled to FMLA leave; (2) Mr. McClinton gave Capstone proper notice of his need

for leave; (3) Capstone interfered with Mr. McClinton’s FMLA rights.1 Id. at 11.

The jury found that Mr. McClinton should be awarded $200,000 in damages. Id. at

12.

The jury found that Mr. McClinton did not meet the burden of proof on his

ADEA discrimination claim and his FMLA retaliation claim. See id. at 2, 13. For the

FMLA retaliation claim, the jury found that Mr. McClinton did not properly request

FMLA leave. Id. at 13.

1 The parties did not dispute that Mr. McClinton was eligible for FMLA leave. Doc. 162 at 11.

For all four claims that the jury found in favor of Mr. McClinton, Capstone

renewed its motion for judgment as a matter of law under Rule 50(b) of the Federal

Rules of Civil Procedure. See Doc. 176. Capstone’s motion for a new trial under

Rule 59 was limited only to Mr. McClinton’s FMLA interference claim. See id. at

46.

Capstone moved in the alternative for a remittitur of damages under Rule 59.

See id. at 57. Capstone moved only for a remittitur of damages for Mr. McClinton’s

ADA claims; Capstone did not move for a remittitur of damages for his FMLA

interference claim. See id. at 57–71.

Mr. McClinton moved for attorney’s fees, Doc. 178, and to alter or amend the

final judgment to include equitable relief, Doc. 180.

II. LEGAL STANDARD

A. Rule 50(b) Standard

Under Federal Rule of Civil Procedure 50, judgment as a matter of law is

appropriate if “the court finds that a reasonable jury would not have a legally

sufficient evidentiary basis to find for the [nonmoving party.]” Fed. R. Civ. P.

50(a)(1). Under controlling precedent, “[j]udgment as a matter of law is appropriate

only if the facts and inferences point overwhelmingly in favor of one party, such that

reasonable people could not arrive at a contrary verdict.” Luxottica Group, S.p.A. v.

Airport Mini Mall, LLC, 932 F.3d 1303, 1310 (11th Cir. 2019) (cleaned up). “If there

is substantial conflict in the evidence, such that reasonable and fair-minded persons

in the exercise of impartial judgment might reach different conclusions, the motion

must be denied.” Gowski v. Peake, 682 F.3d 1299, 1311 (11th Cir. 2012) (cleaned

up).

“[T]he jury’s particular findings are not germane to [this] legal analysis.”

Chaney v. City of Orlando, 483 F.3d 1221, 1228 (11th Cir. 2007). That is, “[o]nly

the sufficiency of the evidence matters; what the jury actually found is irrelevant.”

Hubbard v. BankAtlantic Bancorp, Inc., 688 F.3d 713, 724 (11th Cir. 2012).

The court must “review all of the evidence in the record,” and “must draw all

reasonable inferences in favor of the nonmoving party, and it may not make

credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 150 (2000). The court “must disregard all evidence

favorable to the moving party that the jury is not required to believe.” Id. at 151.

“[T]he court should give credence to the evidence favoring the nonmovant as well

as that ‘evidence supporting the moving party that is uncontradicted and

unimpeached, at least to the extent that that evidence comes from disinterested

witnesses.’” Id. (quoting 9B Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 2529 (3d ed. 1998)). Testimony is only “incredible as a

matter of law” if “it relates to facts that the witness could not have possibly observed

or events that could not have occurred under the laws of nature.” United States v.

Flores, 572 F.3d 1254, 1263 (11th Cir. 2009) (cleaned up).

Because a Rule 50(b) motion is a renewed motion for judgment as a matter of

law, “a district court can grant a Rule 50(b) motion only on grounds advanced in the

preverdict Rule 50(a) motion.” McGinnis v. Am. Home Mort. Servicing, Inc., 817

F.3d 1241, 1260 (11th Cir. 2016) (cleaned up). “[B]ecause the rule is a harsh one,

[the court] . . . take[s] a liberal view of what constitutes a motion for directed

verdict.” Id. at 1261 (cleaned up). The court may grant a Rule 50(b) motion on

grounds that are “closely related” to those argued under Rule 50(a), such that setting

aside a jury’s verdict would not come as a surprise to the non-movant. Id.

Further, the court “does not have authority under Rule 50(b) to rule sua sponte

on issues not raised by the parties.” Doe v. Celebrity Cruises, Inc., 394 F.3d 891,

903 (11th Cir. 2004); see also Crawford v. Andrew Sys., Inc., 39 F.3d 1151, 1154

(11th Cir. 1994) (“Just as we would not permit defendants who had made no previous

motion to ask the court to rule on the legal sufficiency of the evidence once a verdict

had been returned against them, we cannot permit the district court to so rule sua

sponte.”).

B. Rule 59 Standard

The court may grant a motion for a new trial under Rule 59(a) of the Federal

Rules of Civil Procedure “when the verdict is against the clear weight of the evidence

or will result in a miscarriage of justice, even though there may be substantial

evidence which would prevent the direction of a verdict.” Lipphardt v. Durango

Steakhouse of Brandon, Inc., 267 F.3d 1183, 1186 (11th Cir. 2001) (cleaned up).

“[N]ew trials should not be granted on evidentiary grounds unless, at a minimum,

the verdict is against the great—not merely the greater—weight of the evidence.” Id.

(cleaned up).

Rule 59(e), on the other hand, permits the court to alter or amend a judgment.

“The only grounds for granting a Rule 59 motion are newly-discovered evidence or

manifest errors of law or fact.” Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007)

(cleaned up). “A Rule 59(e) motion cannot be used to relitigate old matters, raise

argument or present evidence that could have been raised prior to the entry of

judgment.” Id. (cleaned up). The court may not act sua sponte under Rule 59(e) once

ten days have passed after the entry of judgment. See Burnam v. Amoco Container

Co., 738 F.2d 1230, 1232 (11th Cir. 1984) (“[S]o long as the court acts within ten

days after the entry of judgment, the court has the power on its own motion to

consider altering or amending a judgment.”).

As applied to a motion for a remittitur under Rule 59(e), the court may reduce

the jury’s award where “the jury’s damage award exceeds the amount established by

the evidence.” Rodriguez v. Farm Stores Grocery, Inc., 518 F.3d 1259, 1266 (11th

Cir. 2008); see also Moses v. K-Mart Corp., 905 F. Supp. 1054, 1057 (S.D. Fla.

1995) (“Of course, in reaching this determination the Court is not to substitute its

judgment for the jury’s, and where there is sufficient evidence in the record to

support the award, the Court should not reduce merely because it would have found

differently.”). Where the jury’s award “is for an identifiable amount that is not

permitted by law,” the court may “modify the jury’s verdict to that extent and enter

judgment for the correct amount.” Johansen v. Combustion Eng’g, Inc., 170 F.3d

1320, 1330 (11th Cir. 1999); see also id. (“The Seventh Amendment is not offended

by this reduction because the issue is one of law and not fact.”).

III. ANALYSIS

A. ADA Disparate Treatment and Reasonable Accommodation Claims

1. Disability

To prevail on a disparate treatment claim or a reasonable accommodation

claim under the ADA, a plaintiff must first prove that he has a disability. Frazier-

White v. Gee, 818 F.3d 1249, 1255 (11th Cir. 2016). “The term ‘disability’ means

… a physical . . . impairment that substantially limits one or more major life activities

of such individual; . . . a record of such an impairment; or . . . being regarded as

having such an impairment . . . .” 42 U.S.C. § 12102(1).

Capstone first argues that it is entitled to judgment as a matter of law on Mr.

McClinton’s disparate treatment and reasonable accommodation claims because Mr.

McClinton failed to establish a disability. Doc. 176 at 4. Specifically, it argues that

“[t]he medical record evidence presented at trial unequivocally established [Mr.]

McClinton had no limitations on his ability to walk,” and that “[Mr.] McClinton’s

testimony is the only evidence he was limited in walking.” Id. at 6. Capstone further

asserts that “a plaintiff’s testimony, standing alone and contradicted by his medical

records” is insufficient as a matter of law to establish a disability under the ADA.

Id. at 7. Capstone argues not only that Mr. McClinton’s testimony is insufficient

generally, see id. at 7–12, but also that his testimony as a layperson cannot establish

a medical causal link between his leg pain and his back condition, which Capstone

asserts is required under the ADA, see id. at 13–14.

Capstone’s arguments fail. Sufficient evidence was presented at trial to

support the jury’s finding that Mr. McClinton was disabled. First, the medical

evidence did not “unequivocally establish” Mr. McClinton’s lack of disability.

Although the Fit for Duty Release form that Mr. McClinton’s neurosurgeon, Dr.

Chambers, completed on March 18, 2019, stated that Mr. McClinton was able to

“[f]requently walk/stand 3 to 6 hours on concrete flooring,” Doc. 156-13 at 1, it was

possible for the jury to view that statement as being consistent with a substantial

limitation in Mr. McClinton’s ability to walk, as compared to most people in the

general population. Likewise, the jury could have viewed the blank limitations field

on the note from the Emergency Room as insignificant in the light of the fact that it

also recorded that Mr. McClinton had “leg pain” that had persisted for “1 [week].”

See Doc. 156-15 at 14.

Second, as Capstone acknowledges, no binding precedent supports its

arguments that Mr. McClinton’s testimony is insufficient as a matter of law. See

Doc. 176 at 7–11. Capstone cites only unpublished opinions of the Eleventh Circuit

and published opinions of district courts or other courts of appeals, which are not

binding. 11th Cir. R. Rule 36-2; Georgia v. President of the U.S., 46 F.4th 1283,

1304 (11th Cir. 2022). The same deficit applies to Capstone’s argument that the

ADA requires expert evidence of medical causation. See Doc. 176 at 12–14.

Indeed, binding precedent counsels against granting the relief Capstone seeks.

Binding precedent holds that whether an individual is disabled “should not require

extensive analysis.” U.S. Equal Emp. Opportunity Comm’n v. St. Joseph’s Hosp.,

Inc., 842 F.3d 1333, 1344 (11th Cir. 2016); see also 29 C.F.R. § 1630.2(j)(1)(iii).

The term “substantially limits” is “not meant to be a demanding standard” and must

be “construed broadly in favor of expansive coverage, to the maximum extent

permitted by the terms of the ADA.” 29 C.F.R. § 1630.2(j)(1)(i); see also 42 U.S.C.

§ 12102(4)(A).

Accordingly, there is no basis to disturb the jury’s finding that Mr. McClinton

had a disability, and Capstone’s renewed motion for judgment as a matter of law on

this ground fails.

2. Qualified Individual

To prevail on a disparate treatment claim or a reasonable accommodation

claim under the ADA, a plaintiff must also prove that he was a “qualified

individual.” Frazier-White, 818 F.3d at 1255. “The term ‘qualified individual’

means an individual who, with or without reasonable accommodation, can perform

the essential functions of the employment position that such individual holds . . . .”

42 U.S.C. § 12111(8).

“Whether a particular job function is essential is evaluated on a case-by-case

basis by examining a number of factors.” Samson v. Fed. Express Corp., 746 F.3d

1196, 1200–01 (11th Cir. 2014) (cleaned up). Relevant factors include: (1) whether

“the position exists . . . to perform that function”; (2) whether there are a “limited

number of employees available” to perform the function; (3) whether the function is

“highly specialized so that the [employee] . . . is hired for his or her expertise or

ability to perform the particular function; (4) “[t]he employer’s judgment as to which

functions are essential”; (5) “[w]ritten job descriptions”; (6) “[t]he amount of time

spent on the job performing the function”; (7) “[t]he consequences of not requiring

the [employee] to perform the function”; (8) “[t]he terms of a collective bargaining

agreement”; (9) “[t]he work experience of past [employees] in the job.” 29 C.F.R. §

1630.2(n)(2), (3); see also Samson, 746 F.3d at 1201.

Capstone makes three arguments that Mr. McClinton failed to establish that

he was a qualified individual. The first relates to Mr. McClinton’s request to use a

cane or crutches on April 17, 2019. See Doc. 167 at 194, Tr. 350:10–15. The second

relates to his request in early April for a “reduced schedule,” i.e. to reduce some of

his “extra” weekend hours, but not to go below his full-time 48-hour week schedule.

See Doc. 187 at 16; Doc. 167 at 214, Tr. 370:19–21. The third relates to Dr.

Chambers’s Fit-for-Duty Release form that stated that Mr. McClinton could not

perform certain tasks, such as frequently lifting items ranging in five to eighty

pounds in weight for a sustained period of time. See Doc. 157-3. These arguments

are not sufficient to disturb the jury’s finding that Mr. McClinton was a qualified

individual.

Capstone’s first two arguments assert that Mr. McClinton failed to present

medical evidence showing that the accommodations he requested were necessary,

and that even if they were supported by medical evidence, they were not reasonable

as a matter of law. See Doc. 176 at 18–23. Regarding the request to use crutches or

a cane, Capstone argues that “[t]here was uncontradicted testimony that [it] could

not be accommodated due to the nature of the worksite, including a dock area that

was over two football fields long and that had powered industrial trucks, including

forklifts and electric pallet jacks, operating constantly.” Id. at 19–20. Regarding Mr.

McClinton’s request for a reduced schedule, Capstone argues that the request was

unreasonable because it was made during “container season,” which Mr. Langley

testified was the busiest time of the year, when taking time off was not possible. See

id. at 23.

As an initial matter, Capstone cites no binding precedent for its assertion that

a request for an accommodation must be supported by specific medical

documentation. See id. at 19. Capstone cites Stewart v. Happy Herman’s Cheshire

Bridge, but that case did not hold that medical documentation was required for the

specific accommodation requested. 117 F.3d 1278 (11th Cir. 1997). Stewart held

simply that “a qualified individual with a disability is not entitled to the

accommodation of her choice, but only to a reasonable accommodation.” Id. at 1286

(cleaned up). And the court’s assessment of reasonableness did not hinge on whether

there was medical evidence in support of an accommodation. See id.

Further, there was sufficient evidence for the jury to find that Mr. McClinton’s

requests were reasonable. Mr. Fernandez testified that “[c]rutches on the dock are a

hazard,” Doc. 166 at 111, Tr. 111:12–13, and Mr. Langley testified that taking time

off was not possible during “container season,” see Doc. 167 at 32–33, Tr. 188:7–

189:7, but the jury was free to disbelieve their testimony and believe Mr.

McClinton’s testimony instead. Mr. McClinton testified, for example, that “not only

was there a wheelchair ramp outside [the Dollar General Warehouse], but there

[was] also an employee that worked for Dollar General that was in the warehouse in

a wheelchair.” Doc. 171 at 4, Tr. 416:5–8. Mr. McClinton also testified that he had

to work weekend shifts in addition to his regular shift, whereas the day shift

supervisor did not have to do so. See Doc. 167 at 189–90, Tr. 345:19–346:18.

Finally, Capstone argues that the physical tasks that Dr. Chambers’s Fit-for-

Duty Release form stated that Mr. McClinton could not perform were essential

functions of his position, and that Mr. McClinton offered no evidence of any

accommodation that would permit him to perform them. See Doc. 176 at 24–28. But

this is not a basis to disturb the jury’s finding that Mr. McClinton was a qualified

individual. The form that Dr. Chambers signed was intended for an unloader, rather

than a site supervisor, at Capstone. See Doc. 171 at 53, Tr. 465:2–4. Mr. McClinton

testified that some of the physical tasks listed there were “a part of” his job duties as

a site supervisor, id., Tr. 465:5–8, but that testimony did not require the jury to find

that they were an “essential function” of his position. And the fact that not all

unloaders would show up to every shift, see Doc. 167 at 174–75, Tr. 330:24–331:15,

does not require the jury to infer that Mr. McClinton’s position changed from that of

a site supervisor to an unloader. Moreover, Mr. Fernandez, Capstone’s corporate

representative, testified that after Mr. McClinton came back from back surgery, he

was able to perform all eleven of the “principal accountabilities” of a site supervisor.

Doc. 166 at 151–52, Tr. 151:5–152:21. To the extent that the jury credited Mr.

Fernandez’s testimony, such testimony constitutes sufficient evidence that Mr.

McClinton was a qualified individual.

Accordingly, Capstone’s renewed motion for judgment as a matter of law on

the ground that Mr. McClinton failed to establish that he was a qualified individual

fails.

B. ADA Retaliation Claim

To prevail on a retaliation claim under the ADA, the plaintiff must show that:

“(1) [he] engaged in a statutorily protected expression, (2) [he] suffered an adverse

employment action, and (3) there was a causal link between the two.” Frazier-White,

818 F.3d at 1258.

Capstone argues that Mr. McClinton did not engage in activity protected by

the ADA because the retaliation provision of the ADA protects only individuals who

have “opposed any act or practice made unlawful by this chapter,” and merely

requesting an accommodation does not constitute “opposition.” Doc. 176 at 32–33

(quoting 42 U.S.C. § 12203(a)). Capstone cites Crawford v. Metropolitan

Government of Nashville and Davidson City for its discussion of the definition of

“oppose” in the context of Title VII’s anti-retaliation provision, but Crawford is

silent as to whether a request for an accommodation may constitute a protected

activity. 555 U.S. 271, 276 (2009). Moreover, the Eleventh Circuit held in Frazier-

White that “[t]he first element [of an ADA retaliation claim] may be met by a request

for a reasonable accommodation.” 818 F.3d at 1258; see also Belgrave v. Publix

Super Market, Inc., No. 22-13021, 2023 WL 3477790, at *4 (11th Cir. May 16,

2023) (“An employee participates in a protected activity when he makes ‘a request

for a reasonable accommodation.’”) (quoting Frazier-White, 818 F.3d at 1258).

Accordingly, the relevant question is whether there was sufficient evidence to

support a finding that Mr. McClinton made a request for reasonable

accommodations, and the court already has so held. See supra Section III.A.2. There

is thus no basis to disturb the jury’s verdict in favor of Mr. McClinton on his ADA

retaliation claim.

C. FMLA Interference

1. Renewed Motion for Judgment as a Matter of Law

“The FMLA provides eligible employees the right to 12 weeks of leave for a

serious health condition that makes the employee unable to perform the functions of

her position.” Munoz v. Selig Enterprises, Inc., 981 F.3d 1265, 1274 (11th Cir.

2020); see also 29 U.S.C. § 2612(a)(1)(D). It is “unlawful for any employer to

interfere with, restrain, or deny the exercise of or the attempt to exercise, any right

provided under [the FMLA].” 29 U.S.C. § 2615(a)(1).

“When an employer acquires knowledge that an employee’s leave may be for

an FMLA-qualifying reason, that triggers the employer’s obligation to evaluate

whether the employee’s requested absence in fact qualifies for FMLA protection.”

Ramji v. Hosp. Housekeeping Sys., LLC, 992 F.3d 1233, 1243 (11th Cir. 2021). “The

employer must also provide notice to the employee of [his] eligibility for and rights

under the FMLA within a certain timeframe.” Id.; see also 29 C.F.R. § 825.300(b)(1)

(“[T]he employer must notify the employee of the employee’s eligibility to take

FMLA leave within five business days, absent extenuating circumstances.”). “A

‘[f]ailure to follow the notice requirements . . . may constitute an interference with,

restraint, or denial of the exercise of an employee’s FMLA rights.’” Ramji, 992 F.3d

at 1243 (quoting 29 C.F.R. § 825.300(e)).

To succeed on an interference claim, “a plaintiff must prove that [he] was

denied a benefit to which [he] was entitled under the FMLA, and that, as a result,

[he] was prejudiced in some way that is remediable by either damages or equitable

relief.” Lapham v. Walgreen Co., 88 F.4th 879, 895–96 (11th Cir. 2023) (cleaned

up). Monetary damages available under the FMLA fall into two categories. First, the

FMLA awards damages equal to the amount of “any wages, salary, employment

benefits, or other compensation denied or lost to [an] employee by reason of the

[employer’s] violation.” 29 U.S.C. § 2617(a)(1)(A)(i)(I). Second, “in a case in which

wages, salary, employment benefits, or other compensation have not been denied or

lost to the employee,” the FMLA awards damages equal to the amount of “any actual

monetary losses sustained by the employee as a direct result of the violation, such as

the cost of providing care, up to a sum equal to 12 weeks . . . of wages or salary for

the employee.” Id. § 2617(a)(1)(A)(i)(II).

Because the jury found in favor of Capstone on Mr. McClinton’s FMLA

retaliation claim, Capstone challenges only the jury’s verdict as to the interference

claim. Capstone raises four arguments. First, Capstone argues that “[Mr.] McClinton

suffered no damages related to leave to recover from his back surgery” in February

2019. Doc. 176 at 38 (cleaned up). Second, Capstone argues that “[Mr.] McClinton

suffered no damages related to his [three-day] leave in April 2019.” Id. at 41 (cleaned

up). Third, Capstone argues that “[Mr.] McClinton’s statement [in April 2019] that

he may need leave for a future surgery is legally insufficient to provide proper notice

of need for FMLA leave.” Id. at 42 (cleaned up). Fourth, Capstone argues that “[t]o

the extent the jury entered a verdict for [Mr.] McClinton on the basis of his

termination from employment constituting the FMLA interference, that claim is

legally barred.” Id. at 44.

It is only in a footnote to its reply brief that Capstone asserts that “the jury

improperly sought to award [Mr.] McClinton compensatory or emotional distress

damages for his FMLA interference claim in contravention of both the law and jury

instructions.” Doc. 191 at 6 n.3. Specifically, Capstone argues that the jury sought

to award compensatory damages unavailable under the FMLA because $200,000 is

“the exact amount awarded for emotional distress damages under the ADA,” “over

four times the amount of [Mr.] McClinton’s annual salary of $47,000,” and “over

ten times the amount of wages and benefits [Mr.] McClinton could have earned in

twelve weeks pursuant to the FMLA.” Id. at 6–7 n.3. The court declines to consider

this argument. The Initial Order in this case cautioned the parties that the court “will

not consider substantive arguments made in footnotes.” Doc. 10 at 16 (cleaned up).

And controlling precedent provides that “[a]rguments not properly presented in a

party’s initial brief or raised for the first time in the reply brief are deemed waived.”

In re Egidi, 571 F.3d 1156, 1163 (11th Cir. 2009).

Capstone identifies as Mr. McClinton’s “first theory of recovery under his

FMLA interference claim . . . that he was not provided FMLA leave while he was

out of work from February 25, 2019 through March 25, 2019.” Doc. 176 at 38.

Capstone does not argue that Mr. McClinton’s back problem did not constitute a

serious health condition, or that Mr. McClinton failed to provide proper notice of

need for FMLA leave before he had his back surgery in February 2019. See id. at

38–41. Mr. McClinton testified that he told Mr. Langley about the date of his back

surgery, Doc. 167 at 184, Tr. 340:8–13, and Capstone does not challenge the

sufficiency of that evidence. Capstone also does not argue that it informed Mr.

McClinton of his eligibility for FMLA leave or provided the relevant paperwork.

See Doc. 176 at 38–41. Mr. McClinton testified that he was “a bit ignorant” about

the FMLA at the time and that Capstone did not provide him with any FMLA

paperwork. Doc. 167 at 187, Tr. 343:4–10. Capstone does not challenge the

sufficiency of that evidence. See Doc. 176 at 38–41.

Capstone argues instead that Mr. McClinton was not prejudiced nor damaged

because he “admitted at trial that he was paid his full salary” during the period from

February 25, 2019 to March 25, 2019. Id. at 38; see also Doc. 171 at 48, Tr. 460:5–

11. Capstone also cites Mr. McClinton’s testimony that “he received short-term

disability benefits on top of his salary for part of that time.” Doc. 176 at 39 (cleaned

up); see also Doc. 171 at 49–50, Tr. 461:17–462:1. Capstone argues that “[t]here

was no evidence that [Mr.] McClinton suffered any financial or pecuniary harm at

all related to his leave; indeed, quite the opposite: he made more during his leave

than if he had been working.” Doc. 176 at 41.

But Capstone ignores Mr. McClinton’s testimony regarding the impact of his

inability to take up to twelve weeks of FMLA leave on his recovery from back

surgery. When asked about his shift on Sunday, April 14, 2019, Mr. McClinton

testified that what he remembered was “being in extreme pain and very much

difficulty getting around.” Doc. 167 at 207, Tr. 363:5–6. Mr. McClinton further

testified that the next day, he “could barely move,” so that his wife “ended up taking

[him] to the emergency room” and “wheeling [him] in a wheelchair.” Id. at 191, Tr.

347:5–12; see also Doc. 156-15 at 14 (medical records of Mr. McClinton’s visit to

the Emergency Room on April 15, 2019). When asked if taking FMLA leave “would

have helped assist [his] pain,” Doc. 167 at 207, Tr. 363:10–12, Mr. McClinton

replied, “I think it would have helped. It would have given my back a bit more time

to try to heal better and not working six and seven days a week, that would have

been a big help.” Id., Tr. 363:15–18; see also id. at 217, Tr. 373:15–17 (Mr.

McClinton testifying to his belief that receiving FMLA leave would have been

“helpful” to healing his back).

The jury could have credited Mr. McClinton’s testimony and found that he

was prejudiced and damaged by Capstone’s failure to notify him of his right to

FMLA leave after he informed them about his back surgery. Although Capstone

characterizes Mr. McClinton’s testimony regarding his recovery as “self-serving and

unsupported speculation,” Doc. 191 at 26, it does not assert, or cite any case law,

that Mr. McClinton’s testimony by itself is insufficient to establish prejudice or

damages. See Doc. 176 at 38–41; Doc. 191 at 26–27.

Because there was sufficient evidence for the jury to find that Capstone’s

failure to notify Mr. McClinton of his FMLA rights in February 2019 prejudiced him

in a way that was remediable by damages, it is unnecessary to address Capstone’s

other arguments for judgment as a matter of law on Mr. McClinton’s FMLA

interference claim. Capstone’s renewed motion for judgment as a matter of law is

DENIED as to Mr. McClinton’s FMLA interference claim.

2. Motion for a New Trial

Capstone moves in the alternative for a new trial on Mr. McClinton’s FMLA

interference claim, “because the jury’s verdicts on the FMLA interference and

retaliation claims are inconsistent.”2 Doc. 176 at 46. Specifically, Capstone argues

that the jury’s answer to Question 3 on the verdict form for the FMLA interference

claim is “inconsistent and irreconcilable” with the answer to Question 2 on the

verdict form for the FMLA retaliation claim. Id.

Question 3 on the verdict form for the FMLA interference claim asks: “[Did]

Mr. McClinton g[i]ve Capstone proper notice of his need for leave?” Doc. 162 at 11.

Question 2 on the verdict form for the FMLA retaliation claim asks: “[Did] Mr.

McClinton properly request[] FMLA leave?” Id. at 13. The jury answered “Yes” to

the first question and “No” to the second. Capstone asserts that “[w]hile the language

is slightly different—‘gave proper notice’ versus ‘properly requested’—the

difference in language is not substantive and is based on the same underlying jury

instructions” regarding proper notice of need. Doc. 176 at 46.

“A verdict is inconsistent when there is no rational, non-speculative way to

reconcile . . . two essential jury findings.” Reider v. Philip Morris USA, Inc., 793

F.3d 1254, 1259 (11th Cir. 2015) (cleaned up). “A district court must make all

2 “A party must object to a verdict as inconsistent before the jury has been dismissed.” Reider v.

Philip Morris USA, Inc., 793 F.3d 1254, 1259 (11th Cir. 2015). Capstone raised and preserved this

argument. Doc. 169 at 124, Tr. 805:19–23.

reasonable efforts to reconcile an inconsistent jury verdict and if there is a view of

the case which makes the jury’s answers consistent, the court must adopt that view

and enter judgment accordingly.” Id. (cleaned up). “To determine whether a conflict

in the verdict can be reconciled, a district court must ask whether the jury’s answers

could reflect a logical and probable decision on the relevant issues . . . submitted.”

Id. (cleaned up).

The jury’s answers are consistent in light of a curative instruction that the jury

received: “When you are considering whether Mr. McClinton’s termination violated

the FMLA, that is assessed under the retaliation instruction. Any other alleged

violation of the FMLA is assessed under the interference instruction.” Doc. 158-2 at

1. This instruction was proposed by Capstone, after Mr. McClinton’s counsel stated

in his closing argument that Capstone interfered with Mr. McClinton’s FMLA rights

by terminating him. See Doc. 169 at 101, Tr. 782:8–9; id. at 105, Tr. 786:12–17.

Given this instruction, the jury could have reasonably considered different

time periods as to whether Mr. McClinton provided proper notice of his need for

FMLA leave. The jury could have found that whereas Mr. McClinton provided

proper notice of need before his back surgery in February 2019, he did not do so in

April 2019, shortly before he was terminated. Indeed, in moving for judgment as a

matter of law on Mr. McClinton’s FMLA interference claim, Capstone argued only

that Mr. McClinton’s statement in April 2019 that “he may need a second back

surgery at some point in the future” was legally insufficient to provide proper notice

of need for FMLA leave. Doc. 176 at 42. Capstone did not argue that Mr. McClinton

failed to provide proper notice of need in February 2019.

Capstone’s motion for a new trial is DENIED.

D. Punitive Damages

Capstone argues that there was insufficient evidence to award punitive

damages for Mr. McClinton’s ADA claims on three separate grounds. First,

Capstone argues that Mr. McClinton “did not introduce evidence of malice or

reckless indifference to support a claim for punitive damages.” Doc. 176 at 49.

Second, Capstone argues that the alleged discriminator, Mr. Langley, was “not high

up in Capstone’s corporate structure.” Id. at 53. Third, Capstone argues that its

actions in good faith defeat punitive damages. Id. at 55.

To disturb the jury’s award of punitive damages, the facts and inferences must

point overwhelmingly in favor of Capstone such that reasonable people could not

arrive at a contrary verdict. Capstone has not carried that burden. There was

sufficient evidence for the jury to find that Mr. Langley acted with malice or reckless

indifference to Mr. McClinton’s federally protected rights under the ADA.

To support an award of punitive damages for intentional discrimination in

employment—including violations of the ADA—the plaintiff must show that the

employer “engaged in a discriminatory practice . . . with malice or with reckless

indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C.

§ 1981a(b)(1). “Malice means an ‘intent to harm’ and recklessness means ‘serious

disregard for the consequences of one’s actions.’” Goldsmith v. Bagby Elevator Co.,

Inc., 513 F.3d 1261, 1280 (11th Cir. 2008) (cleaned up). Although “mere negligence

as to the civil rights of employees is not enough to justify punitive damages,” “[a]

jury may find reckless indifference where the employer does not admit that it knew

that its actions were wrong.” U.S. Equal Emp. Opportunity Comm’n v. W&O, Inc.,

213 F.3d 600, 611 (11th Cir. 2000). It is sufficient for the employer to “discriminate

in the face of a perceived risk that its actions will violate federal law.” Kolstad v.

Am. Dental Ass’n, 527 U.S. 526, 536 (1999).

Importantly, “an employer’s conduct need not be independently ‘egregious’

to satisfy § 1981a’s requirements for a punitive damages award, although evidence

of egregious misconduct may be used to meet the plaintiff’s burden of proof.” Id. at

546. Conduct that could support a punitive damages award includes: “(1) a pattern

of discrimination, (2) spite or malevolence, or (3) a blatant disregard for civil

obligations.” Goldsmith, 513 F.3d at 1280 (cleaned up). In Brown v. Advanced

Concept Innovations, LLC, for example, the court held that there was sufficient

evidence to support the jury’s award of punitive damages by pointing to the

following facts: the employer “made no attempt to provide a reasonable

accommodation,” and then “created documentation falsely suggesting that [the

plaintiff] had voluntarily resigned, rather than been terminated for not being able to

perform the duties of the position.” No. 21-11963, 2022 WL 15176870, at *5 (11th

Cir. Oct. 27, 2022).

There was sufficient evidence for a reasonable jury to find that Mr. Langley

acted with reckless indifference to Mr. McClinton’s rights under the ADA. One of

the most hotly disputed facts before trial was whether Mr. McClinton had falsified

the Corrective Action Notice that he received, and Capstone terminated his

employment for that reason. See Doc. 87 at 19. Mr. McClinton’s testimony at trial

was directly at odds with Mr. Langley’s testimony. Mr. Langley testified that Mr.

McClinton falsified the Corrective Action Notice by “chang[ing] the written

[warning] to a verbal [warning] and the termination to a suspension,” Doc. 167 at

150, Tr. 306:17–18, and that Mr. McClinton was terminated for falsifying that form.

See id. at 46, Tr. 202:3–6. Mr. McClinton testified that when he met with Mr.

Langley on April 18, 2019, regarding the Corrective Action Notice, Mr. Langley

made those changes himself, because he agreed with Mr. McClinton that he should

not be receiving a written warning without a verbal warning first. See id. at 197, Tr.

353:3–11; Doc. 171 at 63–64, Tr. 475:17–476:8.

There was sufficient evidence for the jury to find that Mr. Langley lied about

Mr. McClinton’s falsification of the Corrective Action Notice. And a reasonable jury

was allowed to infer from the timing of events that Mr. Langley lied to create a

pretext for terminating Mr. McClinton on the basis of his disability: Mr. McClinton

requested the use of a cane or crutches on April 17, which was immediately denied,

see Doc. 167 at 194, Tr. 350:10–15; Mr. McClinton received the Corrective Action

Notice on April 18; Mr. Langley purportedly “discovered” on April 19 that Mr.

McClinton had falsified the form and contacted Mr. Fernandez about it. See id. at

48–49, Tr. 204:21–205:3. Mr. Langley also admitted that he was “the person that

initiated the conversation to Mr. Fernandez to terminate Mr. McClinton.” Id. at 45,

Tr. 201:21–25.

Nevertheless, Capstone argues that punitive damages may not be imposed as

a matter of law because Mr. Langley was not “high up in Capstone’s corporate

structure.” Doc. 176 at 53. Capstone first posits that “it was [Mr.] Langley who

informed [Mr.] Fernandez of the corrected action notice being falsified, and there

was no indication that [Mr.] Fernandez either did not believe [Mr.] Langley or was

part of a plot to terminate [Mr.] McClinton’s employment for a false, discriminatory

or retaliatory reason.” Id. at 55. Capstone further asserts that Mr. Langley was a

“mere site manager,” a title held by over 600 other individuals. Id. at 54–55.

Capstone misunderstands the applicable legal standard. In Dudley v. Wal-

Mart Stores, Inc., the Eleventh Circuit held that punitive damages may not be

assessed absent a showing that “the discriminating employee was high up the

corporate hierarchy, or that higher management countenanced or approved his

behavior.” 166 F.3d at 1323 (cleaned up). Under this “higher management” standard,

the court considers factors such as how many employees the discriminator oversees

and how many employees occupy the same position as the discriminator. See Equal

Emp. Opportunity Comm’n v. Exel, Inc., 884 F.3d 1326, 1332 (11th Cir. 2018).

But in Kolstad v. American Dental Association, which was decided shortly

after Dudley, the Supreme Court held that punitive damages may be imputed “where

an employee serving in a ‘managerial capacity’ committed the wrong while ‘acting

in the scope of employment.’” 527 U.S. at 543 (quoting Restatement (Second) of

Agency § 217 C (1957)). The Court explained that whether an employee served in a

“managerial capacity” is a “fact-intensive inquiry” that involves consideration of

“the type of authority that the employer has given to the employee, the amount of

discretion that the employee has in what is done and how it is accomplished.” Id.

That is, “an employee must be ‘important,’ but perhaps need not be the employer’s

‘top management, officers, or directors,’ to be acting ‘in a managerial capacity.’” Id.

(quoting 1 L. Schlueter & K. Redden, Punitive Damages, § 4.4(B)(2)(a), at 181 (3d

ed. 1995)).

The Eleventh Circuit has recognized the “apparent conflict” between the

standards in Dudley and Kolstad, and held that it remains bound by the “higher

management” standard in Dudley based on the prior panel precedent rule. Exel, 884

F.3d at 1332. Capstone now cites Exel to support its argument that Dudley bars

punitive damages in this case. See Doc. 176 at 53 n.7.

But Capstone waived this argument. The jury was instructed that “Mr.

McClinton must show that an employee of Capstone, acting in a managerial

capacity, either acted with malice or with reckless indifference to Mr. McClinton’s

federally protected rights.” Doc. 158-1 at 17. After informing the jury that “[t]here

is no bright-line rule about which employees act in a managerial capacity[,]” the

instructions continued, “You must determine whether an employee acted in a

‘managerial capacity’ based upon the type of authority Capstone gave the employee

and the amount of discretion that the employee has in what is done and how it is

accomplished.” Id. at 17–18. In other words, the jury was instructed to evaluate

whether the discriminator, i.e. Mr. Langley, acted in a “managerial capacity,” not

whether he was “high up in Capstone’s corporate hierarchy.”

Capstone never objected to these instructions. See Doc. 167 at 230, Tr. 386:6–

10; id. at 238, Tr. 394:9–11; id. at 242, Tr. 398:4–15; id. at 244, Tr. 400:16–24; id.

at 246, Tr. 402:13–16; Doc. 168 at 123–24, Tr. 665:15–666:5; Doc. 169 at 4–5, Tr.

685:22–686:24; id. at 9, Tr. 690:5–9 (raising other objections). Indeed, Capstone

proposed (jointly with Mr. McClinton) the instructions referring to “managerial

capacity.” In the parties’ joint proposed jury instructions, the parties adopted the

Eleventh Circuit Pattern Jury Instructions referring to “managerial capacity” in full,

without any disputed portions. Compare Doc. 142 at 34–35; Pattern Civ. Jury Instr.

11th Cir. 4.11–4.13 (2022). Accordingly, the court will not find the instruction

erroneous and if there were error, Capstone invited it. See Farley v. Nationwide Mut.

Ins. Co., 197 F.3d 1322, 1331 (11th Cir. 1999).

Finally, Capstone’s argument that it established a good faith defense under

Kolstad also fails. Mr. McClinton developed sufficient evidence for a reasonable

jury to find that Capstone did not establish a good faith defense. “[I]n the punitive

damages context, an employer may not be vicariously liable for the discriminatory

employment decisions of managerial agents where these decisions are contrary to

the employer’s good-faith efforts to comply with Title VII.” Kolstad, 527 U.S. at

545 (cleaned up); see also Merard v. Magic Burgers, LLC, No. 21-12037, 2022 WL

3023213, at *4 (11th Cir. Aug. 1, 2022) (applying Kolstad’s good-faith defense for

punitive damages awarded for ADA claims). Capstone cites Ash v. Tyson Foods,

Inc. for its holding that good faith efforts may include “a written company policy

forbidding racial and other unlawful types of discrimination, communication of that

policy to all decision makers and other employees, and training on the policy.” 664

F.3d 883, 904 (11th Cir. 2011). But this case is unlike Ash, where the court held that

evidence of good faith was “overwhelming, uncontradicted, and undisputed.” Id. at

905.

In Ash, the employer not only had a written “Equal Employment Opportunity,

Fair Employment Practice, Personnel Policy,” but it also supplemented that with an

“additional written policy titled ‘Management Standards of Behavior.’” Id. at 904–

905. The employer enforced that policy by “conducting yearly training sessions with

all management personnel regarding [the] policy”—there was testimony by the

Human Resources manager that she had conducted such training for “twenty years.”

Id. at 905. It was “undisputed that [the discriminator] himself was well aware of [the

employer’s] policy prohibiting racial and other forms of unlawful discrimination in

promotion and other decisions.” Id.

By contrast, Capstone’s written antidiscrimination policy amounted to two

paragraphs contained in the employee handbook, under the heading of “Equal

Employment Opportunity.” See Doc. 156-1 at 10. Evidence regarding its

enforcement or efficacy was also not overwhelming in the way it was in Ash. When

asked what kind of training Capstone provided on employment discrimination to its

employees, Mr. Fernandez answered, “Basically, it’s what’s in the handbook. [P]art

of orientation is covering these types of subjects . . . . And then beyond that, we’re

instructed that anything even remotely possible rises to the level of harassment or

discrimination, we should immediately get with our HR department.” Doc. 166 at

85, Tr. 85:4–10.

As to what was covered at orientation, Mr. Langley testified that he could not

remember receiving any training about antidiscrimination policies. See Doc. 167 at

21, Tr. 177:23–25. What he did recall were “things from the handbook, really

concentrated on safety, quality, housekeeping, performance of associates, how

associates were paid and just general training.” Id., Tr. 177:15–18.

Such evidence was sufficient for reasonable jurors to differ as to whether

Capstone’s written policy was effective. See Goldsmith, 513 F.3d at 1281–82.

Capstone’s motion for judgment as a matter of law on punitive damages is therefore

DENIED.

E. Remittitur

In its motion for a remittitur in the alternative, Capstone moved only for a

remittitur of damages for Mr. McClinton’s ADA claims; Capstone did not move for

a remittitur of damages for Mr. McClinton’s FMLA interference claim. See Doc.

176 at 57–71. Capstone’s motion for a remittitur is GRANTED IN PART and

DENIED IN PART.

1. Statutory Cap

First, Capstone argues that Mr. McClinton’s compensatory and punitive

damages for all his ADA claims must be capped to a total of $300,000. Doc. 176 at

57. The court agrees.

Section 1981a(b)(3) limits the sum of compensatory and punitive damages

that “each complaining party” bringing an action under the ADA may recover.

Depending on the number of employees the defendant has, “[t]he sum of the amount

of compensatory damages awarded . . . for future pecuniary losses, emotional pain,

suffering, inconvenience, mental anguish, loss of enjoyment of life, and other

nonpecuniary losses, and the amount of punitive damages awarded” may not exceed

the established amount. 42 U.S.C. § 1981a(b)(3); see also id. § 1981a(b)(2)

(“Compensatory damages awarded under this section shall not include backpay,

interest on backpay, or any other type of relief authorized under section 706(g) of

the Civil Rights Act of 1964.”). Where the defendant has more than “500

employees,” the sum of compensatory and punitive damages may not exceed

“$300,000,” which is the largest of the four caps provided. Id. §1981a(b)(3)(D).

Capstone asserts that the jury’s award of compensatory and punitive damages

must be capped at $300,000 in this case, not because it has established that it has

more than 500 employees, but because that is the maximum recovery that the statute

allows under any circumstances. See Doc. 176 at 57–60. Mr. McClinton responds

that Capstone should be “judicially estopped from raising statutory caps for the first

time” in its motion for a remittitur. Doc. 187 at 35. Specifically, Mr. McClinton

asserts that the issue of statutory caps does not appear as an affirmative defense in

either Capstone’s answer to the second amended complaint, see Doc. 36, or the

pretrial order, see Doc. 101. Mr. McClinton further asserts that Capstone did not

oppose his motion in limine to preclude Capstone from raising at trial new defenses

not contained within the pretrial order. See Doc. 114 at 3.

The question is whether the issue of statutory caps under section 1981a(b)(3)

is an affirmative defense. If it is, Capstone’s failure to plead it in the answer is fatal,

because “[f]ailure to plead an affirmative defense generally results in a waiver of

that defense.” Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1239 (11th Cir. 2010);

see also Fed. R. Civ. P. 8(c)(1) (“In responding to a pleading, a party must

affirmatively state any avoidance or affirmative defense . . . .”).

In the absence of binding authority that holds that section 1981a(b)(3)

provides an affirmative defense, the court will not decline to enforce the statutory

cap. Congress did not identify 1981a(b)(3) as an affirmative defense, and the

Eleventh Circuit has not interpreted it as an affirmative defense. Indeed, the only

case that Mr. McClinton cites in support of his treatment of section 1981a(b)(3) as

an affirmative defense is an unpublished district court opinion. See Whitford v. Sub-

Line Assocs., Inc., CV-15-BE-1678-S, 2017 WL 3118810, at *12 (N.D. Ala. July

21, 2017).

Moreover, because Section 1981a(c)(3) expressly requires the court to “not

inform the jury of the limitations described in subsection (b)(3),” the jury received

no instructions regarding the statutory cap, which means that Capstone is not running

into any barrier imposed by its failure to object to Mr. McClinton’s motion in limine

nor impermissibly using Rule 59(e) to raise new legal theories or arguments “that

contradict verdict forms or instructions that the moving party proposed to the district

court.” St. Joseph’s Hosp., 842 F.3d at 1349. The statutory cap is, by design, meant

to reduce damages after the jury has awarded what it found to be appropriate. See

Warren v. Cnty. Comm’n of Lawrence Cnty., 826 F. Supp. 2d 1299, 1306 (N.D. Ala.

2011) (“[T]he cap [under 42 U.S.C. § 1981a(b)(3)] is for the Court, not the jury to

apply . . . .”).

Notably, the $300,000 statutory cap applies to this entire action, not Mr.

McClinton’s individual claims. See id. at 1305 (“The cap [under 42 U.S.C. §

1981a(b)(3)] applies to each individual prevailing plaintiff, rather than to each

individual claim.”); Hudson v. Chertoff, 473 F. Supp. 2d 1286, 1289 (S.D. Fla. 2007)

(collecting cases and ruling: “The circuit courts that have addressed the issue

consistently have held that the statutory cap [under 42 U.S.C. § 1981a(b)(3)] applies

per party or action, not per claim.”). Section 1981a(a)(2) provides that “[i]n an action

brought by a complaining party under . . . [the ADA], the complaining party may

recover compensatory and punitive damages as allowed in subsection (b) . . . .”

Subsection (b), in turn, provides that the “sum of the amount of compensatory

damages . . . and the amount of punitive damages . . . for each complaining party” is

subject to the listed caps.

Mr. McClinton cites no case to support his suggestion that, despite the plain

language and persuasive precedent, the cap should apply to each claim rather than

the entire action. See Doc. 187 at 37. Accordingly, Capstone’s motion to reduce the

jury’s award of compensatory and punitive damages for all three ADA claims to a

total of $300,000 is GRANTED.

2. Multiple Awards of Backpay

The ADA authorizes this court to award equitable relief, including backpay,

to prevailing plaintiffs. See 42 U.S.C. § 12117(a); 42 U.S.C. § 2000e-5(g)(1)

(authorizing “reinstatement or hiring of employees, with or without back pay . . . or

any other equitable relief as the court deems appropriate”). “[B]ackpay is not an

automatic or mandatory remedy” under 42 U.S.C. § 2000e-5(g). Albemarle Paper

Co. v. Moody, 422 U.S. 405, 415 (1975); see also Brown v. Ala. Dep’t of Transp.,

597 F.3d 1160, 1184 (11th Cir. 2010) (“Backpay in [the Eleventh] Circuit is

considered equitable relief . . . .”). “So long as the equitable remedy chosen is

consistent with the statutory purpose[] of the ADA . . . , the trial court has broad

discretion in fashioning relief.” Farley, 197 F.3d at 1338 (cleaned up). The central

purpose of the ADA “is to make the plaintiff whole, to restore the plaintiff to the

economic position the plaintiff would have occupied but for the illegal

discrimination of the employer.” Id. (cleaned up).

At closing arguments, Mr. McClinton’s counsel told the jury that Mr.

McClinton was owed $249,614 in backpay from the date of his termination to the

date of the verdict. Doc. 169 at 72, Tr. 753:19–21. Mr. McClinton’s counsel then

stated that with compounding quarterly interest, “total backpay for lost wages and

benefits” was $272,000. Id., Tr. 753:22–25. The jury found $272,000 should be

awarded in backpay for each of Mr. McClinton’s ADA claims. Doc. 162 at 4, 7, 9.

Capstone argues that Mr. McClinton is “not entitled to multiple recovery for

backpay.” Doc. 176 at 60. The court agrees. The purpose of backpay is to restore

Mr. McClinton to the economic position that he would have occupied but for the

illegal discrimination by Capstone. Three identical awards of backpay result in a

windfall to Mr. McClinton, rather than making him whole. Capstone’s motion for a

remittitur on this ground is GRANTED.

3. Reduction of Backpay

Capstone asserts three separate and independent grounds for why the jury’s

calculation of backpay must be reduced from $272,000. First, it argues that backpay

must, at a minimum, be reduced to $249,614 to “account for improperly included

prejudgment interest.” Id. at 62. Second, it argues that backpay must be reduced to

$73,548.25 to account for Mr. McClinton’s “clear failure to mitigate his damages

from [September 17, 2020.]” Id. at 67. Third, it argues that backpay must be reduced

to $176,065.75 because it “proved without contradiction that [Mr.] McClinton would

not have remained employed with Capstone past February 2022” due to the

shutdown of its operations in Bessemer, Alabama. Id. at 70. The court reserves the

issue of prejudgment interest on backpay for Mr. McClinton’s motion to alter or

amend the final judgment. See infra Section III.F.1. Capstone’s motion to reduce

backpay on the other two grounds, however, is DENIED.

The jury made a finding that Capstone failed to establish its affirmative

defense that Mr. McClinton failed to mitigate damages. Jury instructions for each of

Mr. McClinton’s ADA claims stated: “If you find that Capstone proved . . . that Mr.

McClinton failed to mitigate damages, then you should reduce the amount of Mr.

McClinton’s damages by the amount that could have been reasonably realized if Mr.

McClinton had taken advantage of an opportunity for substantially equivalent

employment.” Doc. 158-1 at 17; see also id. at 24–25, 37–38. Specifically, the jury

was instructed to determine whether “(1) work comparable to the position Mr.

McClinton held with Capstone was available, and (2) Mr. McClinton did not make

reasonably diligent efforts to obtain it.” Id. at 16.

Although the jury did not have to answer “Yes” or “No” regarding the

mitigation of damages in the verdict form, the jury’s calculation of $272,000 in

backpay necessarily reflects a finding that Mr. McClinton did not fail to mitigate

damages. As Capstone points out, Mr. McClinton’s counsel stated during closing

arguments that $272,000 was the total backpay that Mr. McClinton was owed from

the date of termination to the date of verdict, plus interest. See Doc. 176 at 62–63;

Doc. 169 at 72, Tr. 753:8–25. The jury found that Mr. McClinton should be awarded

that amount, without any reduction.

As such, Capstone’s request for a remittitur based on Mr. McClinton’s failure

to mitigate damages is in substance a motion for judgment as a matter of law on that

ground—one that this court may grant only if, viewing the evidence in the light most

favorable to Mr. McClinton, facts and inferences overwhelmingly supported a

finding that Mr. McClinton failed to mitigate damages. But the evidence is not so

one-sided.

Capstone’s argument about Mr. McClinton’s “clear failure to mitigate

damages” rests on a narrow set of circumstances: that Mr. McClinton did not respond

to an email sent by Alecia LaFon, the Vice President of Human Resources and

Compliance for McPherson Oil, exploring his interest in work as a second shift

warehouse supervisor. See Doc. 157-19 at 8; Doc. 168 at 92–95, Tr. 634:3–637:12.

According to Capstone, the second shift supervisor position was comparable, if not

better, than his previous position, and Mr. McClinton “would have been in the

leading position to obtain the job” if he had only responded, Doc. 176 at 67, because

Ms. LaFon testified that the position was “very difficult” to fill. Doc. 168 at 97, Tr.

639:7–10.

As an initial matter, the court is not inclined to upset the jury’s verdict on the

basis of Capstone’s argument that Mr. McClinton failed to respond to one email

about one job offer. The jury was not required to view the evidence about that email

in isolation, as Capstone now presents it. Mr. McClinton testified that he applied to

over 500 positions since he was terminated, and that he never turned down a job

during that process. See Doc. 171 at 10, 422:12–25; Doc. 156-18 (confirmation

pages for job applications that Mr. McClinton submitted online). Indeed, the reason

why Ms. LaFon emailed Mr. McClinton about the second shift supervisor position

was because he had applied to the position as a first shift supervisor, which had

already been filled. See Doc. 157-19 at 8. The jury was not required to take the view

of Ms. LaFon’s testimony that Capstone takes.

Capstone’s separate argument that backpay must be reduced because Mr.

McClinton would not have retained his position past February 2022 is waived.

Capstone asserts that there was uncontradicted evidence at trial regarding the end of

its operations, including testimony that none of the employees at the Bessemer

warehouse stayed with the company. Doc. 176 at 68–70. But the jury was not asked

to determine whether Mr. McClinton would have been retained past February 2022

and to calculate backpay to that date, instead of the date of the verdict, if it made

such a finding. Based on the parties’ jointly proposed jury instructions, the jury was

instructed to consider the “net lost wages and benefits from the date Capstone

terminated Mr. McClinton to the date of your verdict.” E.g., Doc. 158-1 at 15; see

also Doc. 142 at 32 (the parties’ joint proposal to instruct the jury to consider the

“net lost wages and benefits from the date Capstone discharged his employment to

the date of your verdict”). And based on the parties’ proposals, the verdict form

asked the jury whether “Mr. McClinton should be awarded damages to compensate

for a net loss of wages and benefits to the date of your verdict[.]” E.g., Doc. 162 at

3; see also Doc. 144 at 5 (Capstone’s proposed verdict form asking whether “Mr.

McClinton should be awarded damages to compensate for a net loss of wages and

benefits to the date of your verdict”). Capstone never raised any objections after

proposing such language.

The circumstances liken this case to Collins v. Koch Foods, Inc., where the

Eleventh Circuit held that the defendant had waived the issue of whether backpay

should be cut off as of the date that the plaintiff’s employment would have been

terminated anyway. No. 20-13158, 2022 WL 1741775, at *5 (11th Cir. May 31,

2022). Like Capstone, the defendant in Collins “did not object to the special verdict

form or to the district court’s jury instruction . . . both of which explicitly instructed

the jury that compensatory damages for lost net wages and benefits should be

awarded ‘to the date of your verdict.’” Id. It had, in fact, “proposed this language.”

Id. As such, the court held that the district court abused its discretion in reducing the

amount of backpay the jury awarded. See id.

Accordingly, Capstone’s motion for a remittitur is granted solely to the extent

that the sum of compensatory and punitive damages awarded in this action

(excluding backpay) must not exceed $300,000, and Mr. McClinton may not recover

backpay more than once.

F. Mr. McClinton’s Motion to Alter or Amend the Final Judgment

In his motion to alter or amend the final judgment, Mr. McClinton requests

multiple forms of equitable relief. Doc. 180. First, Mr. McClinton moves to keep the

amount of backpay that the jury found he should be awarded, which includes

prejudgment interest. Id. at 2. Second, Mr. McClinton moves for reinstatement to his

position, or front pay in the alternative. Id. at 8–9. Third, Mr. McClinton requests

interest on his damages award for his FMLA interference claim, in addition to

liquidated damages under the FMLA. Id. at 5, 13.

1. Backpay with Prejudgment Interest

“In determining whether to award prejudgment interest, courts take into

account both the failure to mitigate damages and whether the back pay amount is

easily ascertainable.” Tucker v. Hous. Auth. of Birmingham Dist., 507 F. Supp. 2d

1240, 1284 (N.D. Ala. 2006).

Mr. McClinton argues that “[i]n order to make [him] whole and adjust the

back pay award for inflation and reflect the present day value of income that should

have been paid to him, this [c]ourt should exercise its discretion to award

prejudgment interest as calculated by the jury.”3 Doc. 180 at 3. Capstone responds

that the court should not exercise its discretion to award prejudgment interest on Mr.

McClinton’s backpay, because Mr. McClinton “clearly failed to mitigate damages”

and “Capstone ceased operations at the site where [Mr.] McClinton worked in

February 2022.” Doc. 188 at 2. Capstone does not argue that the amount of backpay

is not easily ascertainable. See id. at 1–2.

As held above, there was sufficient evidence to support the jury’s finding that

Capstone failed to establish its failure-to-mitigate affirmative defense. See supra

Section III.E.3. The court also rejected Capstone’s argument that Mr. McClinton’s

backpay must be reduced because he would not have retained his position past

February 2022. Id. An award of backpay with prejudgment interest is an appropriate

equitable remedy to make Mr. McClinton whole and to compensate him for the value

of money he lost over time due to Capstone’s discriminatory acts. Accordingly, Mr.

McClinton’s motion for a backpay award of $272,000, which includes prejudgment

interest, is GRANTED.

2. Reinstatement or Front Pay

3 Mr. McClinton attached an “Backpay, Benefits and Interest Calculation for the ADA Claims” as

an exhibit to his motion to alter or amend the final judgment, which states that the total backpay

with interest as of June 2023 is $272,994.80. Doc. 180-1 at 4. Mr. McClinton makes no argument

that this figure, instead of $272,000, is the total backpay award that he seeks. See Doc. 180 at 2–

5. In any event, the award of backpay and prejudgment interest is left to the “broad discretion” of

the court. Farley, 197 F.3d at 1338.

Mr. McClinton “seeks reinstatement to . . . his full-time, second-shift

supervisor position paying at least $47,096.66 within a 45 mile area of Birmingham,

Alabama.” Doc. 180 at 9. Mr. McClinton requests front pay in the alternative, “[i]f

reinstatement is unavailable due to Defendant being unwilling, it being unfeasible,

or the employment relationship is damaged beyond repair.” Id.

Although this court “presume[s] that reinstatement is the appropriate remedy

in a wrongful discharge case, when extenuating circumstances warrant, a trial court

may award a plaintiff front pay in lieu of reinstatement.” W&O, Inc., 213 F.3d at

619 (cleaned up). One such extenuating circumstances is a situation “where discord

and antagonism between the parties would render reinstatement ineffective as a

make-whole remedy.” Farley, 197 F.3d at 1339 (cleaned up). But “the presence of

some hostility between parties, which is attendant to many lawsuits, should not

normally preclude a plaintiff from receiving reinstatement.” Id. “Defendants found

liable of intentional discrimination may not profit from their conduct by preventing

former employees unlawfully terminated from returning to work on the grounds that

there is hostility between the parties.” Id. “Front pay [is] a special remedy, warranted

only by egregious circumstances.” Lewis v. Fed. Prison Indus., Inc., 953 F.2d 1277,

1281 (11th Cir. 1992).

Capstone argues that reinstatement is not feasible because, based on Mr.

Fernandez’s affidavit signed August 24, 2023, “there are currently no supervisor

positions available within a 45-mile radius of Birmingham, Alabama.” Doc. 188 at

6; see also Doc. 188-1 ¶ 10. But neither party cites controlling precedent that the

present lack of vacancy is sufficient by itself to make reinstatement inappropriate.

See Doc. 180 at 8–13; Doc. 188 at 5–8. In cases where the district court considered

the fact that there was no vacancy in which to place the plaintiff, the court found

other factors that made reinstatement inappropriate, such as discord and antagonism

between the plaintiff and the supervisor that the plaintiff would have to work with

closely, or an appearance of a conflict of interest. See Tucker, 507 F. Supp. 2d 1240;

Warren, 826 F. Supp. 2d at 1307–08; LaFleur v. Wallace State Cmty. Coll., 955 F.

Supp. 1406 (M.D. Ala. 1996).

In LaFleur, for example, the court found that “if reinstated, the plaintiff would

have to work closely with [an official], one of the individuals against whom the

plaintiff has accused of race discrimination.” 955 F. Supp. at 1426. Having also

found that official to harbor resentment against the plaintiff, the court expressed

concern that such “resentment could very likely lead to an antagonistic relationship.”

Id. Similarly, in Tucker, the court found antagonism between the plaintiff and an

individual who “would still supervise Plaintiff if he were rehired.” 507 F. Supp. 2d

at 1281–82. The court also found that their antagonism went beyond mere “hostility

common to litigation.” Id. at 1282 (cleaned up). And in Warren, the court found that

there could be an “appearance of a conflict of interest if Plaintiff were to be

reinstated.” 826 F. Supp. 2d at 1308.

These problems do not exist for Mr. McClinton. Because Mr. Langley no

longer works for Capstone, there is no cause for concern that Mr. McClinton may be

worse off because he would have to work closely with Mr. Langley upon being

reinstated. Doc. 167 at 18, Tr. 174:12–14 (Mr. Langley testifying that he now works

for Amazon). And Capstone’s assertion that its relationship with Mr. McClinton is

“damaged beyond repair” because it “disagrees with the jury’s verdict in full” and

“stands by its position throughout this case that [Mr.] McClinton was fired after he

falsified his own disciplinary document,” Doc. 188 at 7, is insufficient to make

reinstatement inappropriate. See Farley, 197 F.3d at 1339–40 (“[T]he presence of

some hostility between parties, which is attendant to many lawsuits, should not

normally preclude a plaintiff from receiving reinstatement. . . . To deny

reinstatement on these grounds is to assist a defendant in obtaining his

discriminatory goals.”). Accordingly, Mr. McClinton’s motion for reinstatement is

GRANTED. The motion for front pay is DENIED as moot.

3. Interest on FMLA Award of Damages as well as Liquidated

Damages

The FMLA provides that any employer who violates the Act “shall be liable

to any eligible employee” for three different amounts. 29 U.S.C. § 2617(a)(1). First,

the employer is liable for damages equal to the amount of “any wages, salary,

employment benefits, or other compensation denied or lost to [the] employee,” or

“any actual monetary losses sustained by the employee as a direct result of [the

employer’s] violation . . . up to a sum equal to 12 weeks . . . of wages or salary for

the employee.” Id. § 2617(a)(1)(A)(i). Second, the employer is liable for “the interest

on the amount [of damages] calculated at the prevailing rate.” Id. §2617(a)(1)(A)(ii).

Third, the employer is liable for

an additional amount as liquidated damages equal to the sum of the amount

described in clause (i) and the interest described in clause (ii), except that if

an employer who has violated [the FMLA] proves to the satisfaction of the

court that the act or omission [in violation] was in good faith and that the

employer had reasonable grounds for believing that the act or omission was

not a violation of [the FMLA], such court may, in the discretion of the court,

reduce the amount of the liability to the amount and interest determined under

clauses (i) and (ii), respectively.

Id. § 2617(a)(1)(A)(iii).

The jury awarded $200,000 in damages for Mr. McClinton’s FMLA

interference claim. Doc. 162 at 12. Mr. McClinton seeks interest on that award as

well as liquidated damages equal to the sum of the jury’s award and interest on that

award. Doc. 180 at 5, 13.

Regarding Mr. McClinton’s motion for interest, Capstone responds that there

is “no ‘backpay’ to which interest would apply,” because Mr. McClinton received

his full salary and short-term disability while he was on leave from February 25,

2019, to March 25, 2019. Doc. 188 at 3. Capstone further asserts that “the jury sought

to award [Mr.] McClinton compensatory damages plainly unavailable under the

FMLA.” Id. at 4. That is, Capstone asserts that the jury’s award of $200,000 in

damages for FMLA interference is “the exact amount awarded for emotional distress

damages under the ADA,” “over four times the amount of [Mr.] McClinton’s annual

salary of $47,000,” and “over ten times the wages and benefits Mr. McClinton could

have earned in twelve weeks pursuant to the FMLA.” Id. Capstone argues that “even

if the FMLA interference damages were reduced to twelve weeks of lost wages and

benefits, this would result in an impermissible quadruple-recovery of any

wages/interest as a result of [Mr.] McClinton’s brief absence from February 25 to

March 25, 2019.” Id.

As for Mr. McClinton’s request for liquidated damages, Capstone reiterates

its arguments that “[Mr.] McClinton’s FMLA interference claim fails as a matter of

law, and he suffered no damages from his one month and three days of paid leave in

February, March, and April 2019.” Id. at 18 (cleaned up). Capstone argues that

“[Mr.] McClinton improperly seeks liquidated damages based upon [its] decision to

terminate his employment . . . despite the Court’s prior ruling that FMLA

interference cannot be based on termination of employment.” Id. at 19. Capstone

also argues that “it simply cannot be the case that [it] failed to act in good faith”

because “[Mr.] McClinton never submitted a Leave of Absence request form so as

to properly request FMLA leave for his surgery in February 2019.” Id. at 19–20. The

only evidence that Capstone cites in support of this assertion is the jury’s answer to

Question 2 for Mr. McClinton’s FMLA retaliation claim. See id. at 19 n.3. To the

question, “[Did] Mr. McClinton properly request[] FMLA leave,” the jury answered,

“No.” Doc. 162 at 13.

The court has already denied Capstone’s renewed motion for judgment as a

matter of law on Mr. McClinton’s FMLA interference claim. As held above, there

was sufficient evidence for the jury to find that Mr. McClinton was prejudiced by

Capstone’s failure to notify him of his right to FMLA leave in February 2019, and

that such failure resulted in actual losses other than the loss of wages and benefits.

See supra Section III.C.1. To the extent Capstone asserts that the jury impermissibly

awarded more than a sum equal to twelve weeks of wages, Capstone did not move

for a remittitur to reduce the jury’s award on Mr. McClinton’s FMLA interference

claim. The court may not act sua sponte in this case to grant a remittitur under

Federal Rule of Civil Procedure 59(e). See Burnam, 738 F.2d at 1232.

Capstone has not established that its failure to notify Mr. McClinton of his

right to FMLA leave in February 2019 was in good faith and that it had reasonable

grounds for believing that omission was not a violation of the FMLA. The jury’s

answer that Capstone cites for its assertion that “[Mr.] McClinton never submitted a

Leave of Absence request form so as to properly request FMLA leave for his surgery

in February 2019” was neither in response to a question specifically about February

2019 nor about submission of a Leave of Absence request form. Doc. 188 at 19.

Capstone also ignores that for the relevant claim at issue—FMLA interference—the

jury answered “Yes” to the question, “[Did] Mr. McClinton g[i]ve Capstone proper

notice of his need for leave?” Doc. 162 at 11.

As explained above, Mr. McClinton testified that he told Mr. Langley about

his upcoming back surgery. Doc. 167 at 184, Tr. 340:6–15. Mr. McClinton also

testified that after the back surgery, he spoke to Human Resources at Capstone about

the surgery. Id. at 186, Tr. 342:1–15. Capstone was thus sufficiently notified of his

need for FMLA leave based on his back surgery in February 2019. See White v.

Beltram Edge Tool Supply, Inc., 789 F.3d 1188, 1196 (11th Cir. 2015) (“As a general

rule, an employee need not explicitly mention the FMLA when giving notice to her

employer.”). It cites no evidence to show that its failure to notify Mr. McClinton of

his rights was in good faith or based on a reasonable belief that the omission was not

a violation of the FMLA.

Accordingly, Mr. McClinton’s motion for interest on the damages award, as

well as liquidated damages for his FMLA interference claim is GRANTED.

G. Attorney’s Fees and Expenses

In an ADA suit, “the court . . . in its discretion, may allow the prevailing party

. . . a reasonable attorney’s fee, including litigation expenses, and costs.” 42 U.S.C.

§ 12205. The FMLA provides that the court “shall, in addition to any judgment

awarded to the plaintiff, allow a reasonable attorney’s fee, reasonable expert witness

fees, and other costs of the action to be paid by the defendant.” 29 U.S.C. §

2617(a)(3).

“A reasonable attorney’s fee . . . is calculated ‘by multiplying the number of

hours reasonably expended on the litigation times a reasonable hourly rate.’” Caplan

v. All Am. Auto Collision, Inc., 36 F.4th 1083, 1089 (11th Cir. 2022) (quoting Blum

v. Stenson, 465 U.S. 886, 888 (1984)). “The sum of this calculation is often called

the ‘lodestar.’” Id. (cleaned up).

1. Reasonable Hourly Rate

“A reasonable hourly rate is the prevailing market rate in the relevant legal

community for similar services by lawyers of reasonably comparable skills,

experience, and reputation.” Norman v. Hous. Auth. of City of Montgomery, 836 F.2d

1292, 1299 (11th Cir. 1988). “The applicant bears the burden of producing

satisfactory evidence that the requested rate is in line with prevailing market rates.”

Id.

Whereas Mr. McClinton has requested a rate in the range of $350 to $375 per

hour, see Doc. 196 at 2, Capstone argues that Mr. McClinton’s counsel’s hourly rates

should be no more than $300 per hour given their level of experience. See Doc. 189

at 3; Doc. 178-1 at 2 (affidavit of Blake Edwards declaring that he has been

practicing law since 2015); Doc. 178-2 at 3 (affidavit of Nicole Edwards declaring

that she has been practicing law since 2015). The court disagrees. Mr. McClinton

satisfied the burden of showing that a rate of $350 per hour is in line with prevailing

market rates.

Mr. McClinton submitted affidavits of attorneys practicing in the state of

Alabama as plaintiffs’ lawyers in the field of employment discrimination. See Doc.

178-6; Norman, 836 F.2d at 1299 (“Satisfactory evidence at a minimum is more than

the affidavit of the attorney performing the work.”). Three of them declared that the

“prevailing hourly rates for lawyers handling plaintiff’s employment cases range

from $375 an hour to $650 per hour depending on the skill of the litigator.” Doc.

178-6 at 9, 20, 25. One declared that the prevailing hourly rates ranged from $350

to $650. See id. at 35. Another declared that the range was $300 to 650. See id. at

42. The last declared that the range was $325 to $850. See id. at 53. When taking the

average of the lower ends of these ranges, a rate of $350 is in line with prevailing

market rates. The most recent of the cases that Capstone cites for attorney’s fees is

from 2020, where an attorney with thirteen years’ experience received $250 per

hour, see Mercer v. Ala. Dep’t of Transp., No. 2:16-cv-01204-RDP, 2020 WL

5229519, at *2 (N.D. Ala. Sept. 2, 2020), but it points to no evidence to contradict

declarations regarding “significant inflation since the pandemic.” Doc. 178-6 at 21.

2. Reasonable Hours

“The next step in the computation of the lodestar is the ascertainment of

reasonable hours.” Norman, 836 F.2d at 1301. “[E]xcessive, redundant or otherwise

unnecessary hours should be excluded from the amount claimed” to encourage fee

applicants to exercise billing judgment. Id. (cleaned up). “[T]he measure of

reasonable hours is determined by the profession’s judgment of the time that may be

conscionably billed and not the least time in which it might theoretically have been

done.” Id. at 1306. “The court, either trial or appellate, is itself an expert on the

question [of reasonable fees] and may consider its own knowledge and experience

concerning reasonable and proper fees . . . .” Id. at 1303 (cleaned up).

The Eleventh Circuit has highlighted several principles for what constitute

excessive, redundant, or unnecessary hours. First, “a fee applicant is not entitled to

compensation at an attorney’s rate simply because an attorney undertook tasks which

were mundane, clerical or which did not require the full exercise of an attorney’s

education and judgment.” Id. at 1306.

Second, the court “must deduct time spent on discrete and unsuccessful

claims.” Id. at 1302. That is, “[i]f the claims on which the plaintiff did not prevail

and the claims on which he did prevail were ‘distinctly different claims . . . based on

different facts and legal theories,’ the court cannot award any fee for services on the

unsuccessful claims.” Popham v. City of Kennesaw, 820 F.2d 1570, 1578 (11th Cir.

1987) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434–35 (1983)). But “if the

unsuccessful and the successful claims involve a common core of facts or are based

on related legal theories, the court must compare the plaintiff’s overall relief with

the number of hours reasonably expended on the litigation.” Id. (cleaned up). “If the

plaintiff obtained excellent results, his attorney should be fully compensated for all

time reasonably expended on the litigation.” Id. (cleaned up). Moreover, “a

prevailing party entitled to attorneys’ fees is not to be penalized for failed motions.”

Eagle Hosp. Phys., LLC v. SRG Consulting, Inc., 346 F. App’x 403, 404 (11th Cir.

2009); see also Columbus Mills, Inc. v. Freeland, 918 F.2d 1575, 1580 (11th Cir.

1990) (affirming the district court’s decision not to reduce attorney’s fees for

unsuccessful motions).

Mr. McClinton asserts that his counsel spent a total of 666.8 hours in this case.

Doc. 178-5 at 32 (asserting a total of 670.5 hours); see also Doc. 196 at 18–19

(voluntarily striking 3.7 hours as duplicative). Capstone argues that Mr. McClinton

should not be awarded fees for the following categories of hours: (1) “[t]ime spent

solely on FMLA claims,” which Capstone characterizes as “failed” claims, Doc. 189

at 8 (cleaned up); (2) “[t]ime spent regarding sanctions,” id. at 10 (cleaned up); (3)

“[t]ime spent drafting stricken response to summary judgment motion,” id. at 11

(cleaned up); (4) “[t]ime spent related to seeking equitable relief,” which Capstone

characterizes as an “inappropriate request for a windfall,” id. at 11–12 (cleaned up);

(5) “[t]ime spent related to preparing evidence that was never presented at trial,” id.

at 12 (cleaned up); (6) “[t]ime spent related to motions in limine that were lost,” id.

at 13 (cleaned up); (7) “time for vague and excessive entries,” id. (cleaned up); (8)

time spent on “clerical and other non-attorney work,” id. at 16 (cleaned up). Mr.

McClinton challenges all grounds asserted, but voluntarily strikes 3.7 hours as being

mistakenly duplicative. See Doc. 196 at 18–19.

First, 53.8 hours spent on preparing the stricken summary judgment response,

Doc. 189 at 11, and 4.3 hours spent in relation to the sanction imposed on Mr.

McClinton’s counsel should be excluded.4 On May 4, 2023, the court publicly

reprimanded both Capstone’s and Mr. McClinton’s counsel. See Doc. 108, 109.

Capstone’s counsel were sanctioned for materially and intentionally misrepresenting

the evidentiary record in its brief in support of summary judgment, see Doc. 108 at

14, whereas Mr. McClinton’s counsel were sanctioned for deliberately violating a

court order by filing a summary judgment response that contained alterations clearly

prohibited by that order. See Doc. 109 at 6. Hours that were spent as a result of

counsel’s deliberate violation of a court order are not hours reasonably spent.

Second, the 6.3 hours that Mr. McClinton does not contest as being “clerical”

in nature should be excluded. See Doc. 196 at 17. The same applies to the 0.8 hours

that Mr. McClinton does not contest “could be performed by a paralegal.” Id.

(cleaned up).

4 Capstone asserts that Mr. McClinton’s counsel’s entries for time related to sanctions orders total

7.1 hours. See Doc. 189 at 10. Mr. McClinton’s reply does not contest that figure but asserts that

2.8 hours were spent drafting and filing a motion for sanctions against Capstone and later filing a

reply to Capstone’s response. See Doc. 196 at 6. The court subtracts 2.8 from 7.1 to arrive at 4.3

as the number of hours Mr. McClinton’s counsel spent in relation to sanctions imposed upon

themselves.

All other hours, however, are reasonable. Although the jury returned a verdict

for Capstone on Mr. McClinton’s FMLA retaliation claim, Mr. McClinton was

successful on his FMLA interference claim. The two FMLA claims involve a

common core of facts and related legal theories. Because of the overall success of

Mr. McClinton’s claims, deducting the time spent on the FMLA retaliation claim is

not warranted. The hours spent related to seeking equitable relief are also reasonable

in light of the success of the motion.

The fact that Mr. McClinton was unsuccessful on certain motions in limine or

prepared evidence that was ultimately not presented at trial does not mean that the

hours spent were unnecessary. The entries that Capstone points to as being vague

are also not so lacking in substance that they may not be conscionably billed.

Accordingly, attorney’s fees are awarded in the amount of $210,560.

3. Expenses

Mr. McClinton requests $10,852.47 in expenses. See Doc. 178-3 at 3.

Capstone first argues that Mr. McClinton should not be reimbursed for “round trip

mileage and parking for the Court hearing on January 24, 2023, where the Court

considered whether to sanction [Mr. McClinton’s] counsel.” Doc. 189 at 23; see also

Doc. 178-3 at 2 (Expense No. 16; 17). The court agrees. As with hours spent in

relation to the sanction imposed on Mr. McClinton’s counsel, expenses related to the

sanctions hearing should be excluded as unreasonable.

Capstone objects to Mr. McClinton’s request for copying expenses on the

basis that he has not provided meaningful descriptions of what was printed or

established their necessity. See Doc. 189 at 24-26. The court is satisfied, however,

by Mr. McClinton’s explanation that “trial exhibit binders” as well as copies

attributable to “depositions, motions, pleadings, and discovery” were necessary

expenses. Doc. 196 at 21-22 (cleaned up). Although copying expenses were not

itemized by individual documents printed, five trial binders and “1,586 paper

copies” are reasonable numbers for this action. /d. at 22. Accordingly, expenses are

awarded in the amount of $10,822.71.

IV. CONCLUSION

For the reasons stated above, Capstone’s renewed motion for judgment as a

matter of law is DENIED. Its motion for a new trial is also DENIED. Its motion for

a remittitur is GRANTED IN PART and DENIED IN PART. Mr. McClinton’s

motion for attorney’s fees and expenses is GRANTED. Mr. McClinton’s motion to

alter or amend the final judgment is GRANTED.

DONE and ORDERED this 27th day of March, 2024.

OMarer——~ _

ANNA M. MANASCO

UNITED STATES DISTRICT JUDGE

58