Dennis Vawter v. E.I. Du Pont De Nemours and Company

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

April 20, 2016 Session

DENNIS VAWTER v. E. I. DU PONT DE NEMOURS AND COMPANY

Appeal from the Circuit Court for Shelby County

No. CT-002424-13 Robert L. Childers, Judge

______________________________

No. W2015-00874-COA-R3-CV – Filed June 2, 2016

______________________________

A 59-year old plaintiff who lost his job as a chemical operator, after working in that

position for over 37 years, applied for the position of general operator with another

company. Twelve individuals were hired by the other company, all of whom were

younger than the 59-year old, and most of whom were less experienced. The plaintiff

filed an age discrimination complaint against the company. The case was tried by a jury,

and the jury returned a verdict for the plaintiff, awarding him compensatory damages of

$100,000. The trial court awarded the plaintiff front pay in addition to the compensatory

damage award. The company appealed, and we affirm the trial court‟s judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Tennessee Circuit Court

Affirmed

ANDY D. BENNETT, J., delivered the opinion of the court, in which KENNY W.

ARMSTRONG and BRANDON O. GIBSON, JJ., joined.

James C. Bradshaw, III, and Elise C. Hofer, Nashville, Tennessee, for the appellant, E. I.

du Pont de Nemours and Company.

Dan M. Norwood, Memphis, Tennessee, for the appellee, Dennis Vawter.

OPINION

I. FACTUAL AND PROCEDURAL BACKGROUND

Dennis Vawter worked for a chemical plant owned by Velsicol Chemical

Corporation for 37 ½ years before losing his job in December 2011, when the plant

closed. In March 2012, when he was 59 years old, Mr. Vawter applied for a general

operator position at a plant owned by E. I. du Pont de Nemours and Company (“du

Pont”). Out of 421 who applied for the job, Mr. Vawter was among the 140 applicants

selected to take the general operator exam. Mr. Vawter passed the exam along with 77

others. Du Pont invited 34 of these individuals to interview for the general operator

position, including Mr. Vawter. Du Pont hired twelve of the 34 candidates interviewed,

but Mr. Vawter was not one of these twelve. One of the individuals hired was Chris

Davis, who was at least twenty years younger and less experienced than Mr. Vawter and

was someone with whom Mr. Vawter had worked at Velsicol Chemical. Mr. Vawter

continued his search for employment and was ultimately hired as an operator by Veolia

Water North America in September 2012. Mr. Vawter was earning approximately

$25.00 an hour at Velsicol Chemical before the plant was shut down, and Veolia Water

paid him just $14.50 an hour.1 If he had been hired by Du Pont, Mr. Vawter would have

had a starting pay rate of $24.57 an hour.

Mr. Vawter filed a complaint against du Pont in June 2013 alleging age

discrimination pursuant to the Tennessee Human Rights Act (“THRA”), Tenn. Code

Ann. § 4-21-101 et seq. Du Pont defended its decision not to offer the position to Mr.

Vawter by explaining that Mr. Vawter did not interview well and that its decision had

nothing to do with his age. Mr. Vawter asserts that he was among the more experienced

of the applicants and the only explanation for du Pont‟s decision not to hire him was his

age.

Mr. Vawter‟s case was tried before a jury. Du Pont moved for a directed verdict at

the conclusion of Mr. Vawter‟s presentation of evidence, which the trial court denied.

The jury returned a verdict for Mr. Vawter and awarded him compensatory damages in

the amount of $100,000. Du Pont moved the court to set aside the jury verdict, suggest a

remittitur or, in the alternative, to order a new trial. The trial court denied du Pont‟s

motion, finding that the preponderance of the evidence supported the jury‟s verdict. The

trial court then awarded Mr. Vawter his attorney‟s fees in the amount of $74,200 and

costs and expenses in the amount of $1,607. Mr. Vawter asked the court to order du Pont

to hire him for the general operator position, but the court denied this request. Mr.

Vawter then asked the court to award him front pay. The trial court determined that Mr.

Vawter was entitled to front pay for a period of three years and awarded him an

additional $112,120.07.

Du Pont appeals the trial court‟s awards. It argues (1) the jury‟s verdict that Mr.

Vawter was discriminated against when he was not hired in 2012 should be set aside

because it was not supported by material evidence; (2) the trial court erred in denying its

motion for directed verdict or motion for a new trial on the basis that Mr. Vawter failed to

produce material evidence of age discrimination; (3) the trial court erred in denying du

Pont‟s motion for remittitur because the jury‟s award for compensatory damages is

1

Mr. Vawter was given a $.15 raise once he had been at Veolia Water for a few months, and at the time of

trial was being paid $15.02 an hour.

2

excessive and is not supported by material evidence; and (4) the trial court‟s award of

front pay is excessive, punitive, and unwarranted.

II. STANDARD OF REVIEW

Mr. Vawter‟s case was heard by a jury, and the jury awarded Mr. Vawter

$100,000 based on its finding that du Pont engaged in age discrimination when it failed to

hire Mr. Vawter for the general operator position. Tennessee Rule of Appellate

Procedure 13(d) states: “Findings of fact by a jury in civil actions shall be set aside only

if there is no material evidence to support the verdict.” An appellate court‟s review of a

jury verdict is thus limited to determining whether any “material evidence” supports the

verdict. Ferguson v. Middle Tenn. State Univ., 451 S.W.3d 375, 380 (Tenn. 2014); see

Potter v. Ford Motor Co., 213 S.W.3d 264, 269 (Tenn. Ct. App. 2006) (citing Reynolds v.

Ozark Motor Lines, Inc., 887 S.W.2d 822, 823 (Tenn. 1994); Whaley v. Rheem Mfg. Co.,

900 S.W.2d 296, 300 (Tenn. Ct. App. 1995)) (“Where the record contains material

evidence supporting the verdict, the judgment based on that verdict will not be disturbed

on appeal.”). When determining whether evidentiary support exists to support a jury‟s

verdict, an appellate court is “very deferential toward the verdict.” Duran v. Hyundai

Motor Am., 271 S.W.3d 178, 204 (Tenn. Ct. App. 2008). In determining whether

material evidence supports a jury‟s verdict in a case, the Tennessee Supreme Court has

said:

[W]e “(1) take the strongest legitimate view of all the evidence in favor of

the verdict; (2) assume the truth of all evidence that supports the verdict;

(3) allow all reasonable inferences to sustain the verdict; and (4) discard all

[countervailing] evidence.”

Ferguson, 451 S.W.3d at 380 (quoting Creech v. Addington, 281 S.W.3d 363, 372 (Tenn.

2009)); see also Duran, 271 S.W.3d at 204. The Duran court noted that “[a]ppellate

courts are not a jury of three with the prerogative to re-weigh the evidence, or to

determine where the „truth‟ lies.” Duran, 271 S.W.3d at 205 (citations omitted).

Moreover, appellate courts are not permitted to substitute their judgment for that of the

jury, even when the evidence could have supported a different verdict. Id. (citations

omitted).

III. ANALYSIS

A. Age Discrimination

The purpose of the THRA is to protect individuals in Tennessee from

discrimination in employment and public accommodations because of their race, creed,

color, religion, sex, age, or national origin and to protect individuals from housing

discrimination because of their race, creed, color, religion, sex, or national origin. Tenn.

3

Code Ann. § 4-21-101(a)(3). Section 4-21-401(a) of the THRA states that “[i]t is a

discriminatory practice for an employer to . . . [f]ail or refuse to hire . . . any person . . .

because of such individual‟s . . . age . . . .” An individual must be at least forty years old

to establish an unlawful discrimination claim based on age. Tenn. Code Ann. § 4-21-

101(b). The THRA was modeled on the federal anti-discrimination laws, and

“Tennessee‟s courts regularly consult the decisions of their federal counterparts for

guidance when called upon to construe and apply the Tennessee Human Rights Act.”

Wilson v. Rubin, 104 S.W.3d 39, 48 (Tenn. Ct. App. 2002).

A plaintiff asserting a claim for age discrimination “bears the ultimate burden of

proving that considerations of age not only played a role in but determinatively

influenced the employer‟s decision.” Williams v. Greater Chattanooga Pub. Television

Corp., 349 S.W.3d 501, 509 (Tenn. Ct. App. 2011) (citing Wilson, 104 S.W.3d at 51-52);

see also Tenn. Code Ann. § 4-21-311(e) (stating that plaintiff carries burden of

“establishing a prima facie case of intentional discrimination”). A plaintiff can prove age

discrimination through either direct or indirect evidence of discrimination. Frame v.

Davidson Transit Org., 194 S.W.3d 429, 434 (Tenn. Ct. App. 2005). Direct evidence of

discrimination is not often available. Id. If a plaintiff lacks direct proof of an employer‟s

discrimination, the plaintiff can satisfy his or her burden of proof by presenting indirect

evidence of discrimination by establishing that:

“(1) [he or] she was a member of the protected class” (at least 40 years old);

“(2) [he or] she applied for and was qualified for the position” in question;

“(3) [he or] she was considered for and denied the position; and (4) [he or]

she was rejected in favor” of a substantially younger person with similar

qualification.

Trudeau v. Dep’t of Labor and Workforce Dev., W2003-01920-COA-R3-CV, 2004 WL

2439404, at *3 (Tenn. Ct. App. Oct. 26, 2004) (quoting Bush v. Dictaphone Corp., 161

F.3d 363, 368 (6th Cir.1998); Betkerur v. Aultman Hospital Assoc., 78 F.3d 1079, 1095

(6th Cir.1996)); see also Williams, 349 S.W.3d at 510 (stating same sort of proof required

to establish liability for unlawful termination as for failure to hire). If a plaintiff provides

evidence of each of these four factors, the defendant must then “proffer a legitimate,

nondiscriminatory reason for its actions” not hiring the plaintiff. Trudeau, 2004 WL

2439404, at *3; see Tenn. Code Ann. § 4-21-311(e) (providing that if plaintiff establishes

prima facie case, defendant must show employment decision was legitimate and not

discriminatory). If the defendant meets this burden, the plaintiff must then “rebut this

with evidence that the asserted nondiscriminatory reason is mere pretext for

discrimination.” Trudeau, 2004 WL 2439404, at 3 (citing Bush, 161 F.3d at 369); see

Tenn. Code Ann. § 4-21-311(e) (if defendant rebuts presumption of discrimination,

plaintiff must show defendant‟s alleged nondiscriminatory explanation was pretextual

and not real reason).

4

Mr. Vawter presented evidence that he is in the class of protected individuals, that

he applied for and was qualified for the general operator position, that he was considered

for and denied the position, and that a younger (and less experienced) individual named

Chris Davis was hired. Mr. Vawter testified that he had worked with Mr. Davis at

Velsicol Chemical for two to three years, before the Velsicol plant was shut down, and

that Mr. Davis was about twenty years younger than he was. Mr. Vawter testified that

none of the twelve individuals du Pont hired for the General Operator position had as

many years of experience as he did working as a chemical operator and that all of them

were younger than he was. Four of the twelve candidates du Pont hired had no chemical

operator experience at all.

Mr. Vawter testified about the final step of the hiring process, which consisted of

two hour-long interviews by two different panels:

Q: [W]ere you familiar with the questions and situations they were

presenting to you in the interview?

A: I was.

Q: Anything really shock you that you were totally unfamiliar with?

A: No.

Q: Was it about chemical operator type information?

A: Yes, it was. It involved just different scenarios, what you‟d do in

certain situations, maybe in an emergency or how you would handle certain

situations that might happen out in the plant or certain situations [you]

might come across in your prior experiences.

Q: Okay. And did you get presented with any situations you never had

heard about or addressed in your 37 ½ years working as chemical operator

at Velsicol?

A: No.

Q: Do you believe you provided satisfactory answers to the panel?

A: I believe I did.

Q: In both interviews?

A: Yes.

Q: Did you receive any negative feedback from either one of those

panels or anybody on the panels?

5

A: No.

Q: Mr. Vawter, from all the documents you‟ve been able to review on

the other individuals hired to fill the operator position at Du Pont in 2012 at

its Millington plant, why do you believe the company didn‟t hire you?

A: Well, the only conclusion I could come to was - - I had the 37 ½

years‟ experience and 25 to 28 of those years was the chemical operator

position at the Velsicol plant. I thought - - and I was more than qualified

for that position. It paralleled well with my former chemical operator

experience so that, basically, I thought I was a shoo-in. And then to learn

that 12 - - 12 people they did hire, like eight of them were in their 30s and

four were in their 40s, and I was 59 at that time; that was the only logical

explanation why I was not hired because I had plenty of experience.

Du Pont contends that Mr. Vawter was not qualified for the general operator

position because he performed poorly during the interview process, which du Pont

described as “the determining factor in which candidates received job offers.” Brian

Richard Morris was a du Pont employee who was on one of the panels that interviewed

Mr. Vawter, and he testified that age was not a consideration when du Pont made its

hiring decisions. Mr. Morris also testified that the reason du Pont was interested in hiring

so many general operators was because du Pont “anticipated a high level of turnover in

the coming years.” Mr. Morris explained that “the minimum threshold for most

retirement” at du Pont was age 58 ½, which was one year younger than Mr. Vawter was

when he interviewed for the position.

According to Mr. Morris, Mr. Vawter did not do well in the interview process. He

explained that du Pont did not extend offers to several experienced chemical operators as

a result of their interviews. Mr. Morris testified that experience is important and

constitutes a part of the evaluation of who to hire, but it is not the only criterion. Mr.

Morris elaborated as follows:

The interview is designed to better understand the depth of their

experience; you know, can they give us relevant examples and make us feel

comfortable that, given their years of experience, that they‟ve learned and

internalized the behaviors and the knowledge that we‟re looking for.

We‟re also looking for softer skills in the interview process:

communication; how well do they present ideas; how well do they - - can

they troubleshoot; can they resolve conflict; can they handle difficult

situations, stress? You know we handle a lot of hazardous materials, so we

want people that we are confident can, you know, deal with those chemicals

and in a safe manner and respond to emergencies if needed and can work in

a self-managed work environment.

6

We don‟t have direct line supervisors on shift with our operators, our

chemical operators, and oftentimes, that can be a challenge. And someone

who has experience, they may have gotten line direction from a shift

supervisor at their previous experience, whereas we have to have a self-

managed team. So they have to work collaboratively together, you know,

alone, and make decisions on their own.

The evidence showed that each of the 34 candidates was interviewed before the

hiring decisions were made and that each candidate was asked the same questions. The

candidates‟ responses were scored on a scale of one to five, where one was the lowest

score and five was the highest score. The highest possible score a candidate could get

was forty. Mr. Vawter scored a seventeen, which was the fourth lowest score of any

candidate who was interviewed. Some members of the interview panels took notes

during the candidates‟ interviews, but those notes were not maintained by du Pont. Mr.

Vawter requested the notes from du Pont during discovery, and du Pont informed Mr.

Vawter that the notes had been “destroyed.” Thus, du Pont‟s proof that Mr. Vawter did

not interview well was limited to testimony from individuals involved with the interviews

and the final interview rating grid indicating each candidates‟ interview score. The only

information included on the rating grid concerning Mr. Vawter was: “Operator at

Velsicol, plant closed down. Was difficult to get any examples to build STARS.”2

Du Pont contends that Mr. Vawter‟s low interview score constituted a legitimate,

non-discriminatory reason for its decision not to hire him for the general operator

position and that Mr. Vawter failed to introduce evidence demonstrating that its

explanation was pretextual. Mr. Vawter responds that without the interview notes, the

members of the jury were required to assess the testimony and credibility of all of the

witnesses to make a factual determination of how Mr. Vawter performed answering the

interview questions. As Mr. Vawter points out, he testified that he provided satisfactory

answers to both interview panels and that he believed the interviews went well. Mr.

Vawter‟s testimony that the interviews went well is some evidence that du Pont‟s

explanation of why it did not extend Mr. Vawter an offer was pretextual.

It is not our place to “re-weigh the evidence.” Ferguson, 451 S.W.3d at 380

(citing Flax v. DaimlerChrysler Corp., 272 S.W.3d 521, 532 (Tenn. 2008)). Moreover,

appellate courts cannot “recalibrate the jury‟s preponderance of the evidence

2

Du Pont‟s witness Pauline Brotsman-Brown explained what a STAR was in the interview context:

“ST” stands for situation or a task; “A” is for action that the person took; “R” is for

results that he or she received. So the [candidate‟s] answer has to build a STAR, and so

if the answer is given and the candidate earns a STAR, then they get a full STAR. And

when candidates are difficult to get - - have difficulty with building STARs, it means they

just don‟t present the examples in a way that are very specific and they‟re very

generalized, or it‟s even difficult to kind of draw information out of them.

7

assessment.” Id. (citing Barnes v. Goodyear Tire & Rubber Co., 48 S.W.3d 698, 704

(Tenn. 2000)). “Questions concerning the credibility of witnesses, the weight and value

of the evidence, as well as all factual disputes raised by the evidence, are for the trier of

fact; appellate courts do not reweigh the evidence or reevaluate credibility

determinations.” State v. Flake, 88 S.W.3d 540, 554 (Tenn. 2002).

Applying the standard of review to the evidence presented at trial leads us to

conclude that there was material evidence to support the jury verdict finding du Pont

engaged in age discrimination in failing to offer Mr. Vawter a position as a general

operator.

B. Compensatory Damages Awarded

Du Pont argues that the $100,000 the jury awarded as compensatory damages was

excessive and was not supported by material evidence. Mr. Vawter alleged the following

in his complaint:

As a result of [du Pont‟s] discrimination in hiring, Plaintiff has suffered,

and will continue to suffer, a loss of considerable pay and benefits, as well

as mental distress, humiliation and embarrassment, and loss of enjoyment

of life. Plaintiff avers that he is, therefore, entitled to recover all lost pay

and benefits, with interest, plus compensatory damages to compensate for

his injury and make him whole for all losses suffered, including damages

for mental distress, humiliation and embarrassment, as well as recover his

attorney‟s fees and expenses.

In his prayer for damages, Mr. Vawter sought his lost pay and benefits as well as

compensatory damages in the amount of $500,000. He presented evidence that the

difference in pay between the amount he would have earned at du Pont and the amount he

was then earning at a less desirable job was $42,991.16. Mr. Vawter also presented

evidence that he suffered embarrassment and humiliation as a result of not being offered

the general operator position that he was certain he was qualified for and then learning

that someone twenty years younger with whom he had worked and knew was less

qualified had been offered the position. Mr. Vawter testified as follows:

Q: How did you feel when you first found out that this younger person

that you knew and had less experience than you . . . was hired at du Pont

instead of you?

A: Well, I mean, it was a great - - it was a great let-down. I mean, I had

been employed all those years at Velsicol Chemical, and I didn‟t know

anything else. I worked all my life, and - - and I was striving to find

employment as soon as I lost my job at Velsicol Chemical back in

December of 2011.

8

...

I mean, it‟s - - I don‟t know how to explain it, but you know, as a kid when

you‟re growing up and you‟re playing sports or games, you know, and they

are picking teams or whatever - - it‟s the only thing I can relate it to, so I‟m

just going back to childhood - - is when you were the last one picked for the

team or you wasn‟t picked at all, that‟s how it felt, in a way.

...

Q: How is - - what did you feel like, as a person at 59 online every day

looking at all these jobs and applying for jobs and never hearing anything?

A: It was humiliating, humiliating and depressing. You know, like I

said, after working all those years at one place, 37 ½ years at Velsicol, I

didn‟t know anything else, so when I did lose my job, this was all new to

me, you know, because I really hadn‟t had to look for a job for that many

years.

Mr. Vawter further testified that in addition to working full-time at Veolia, he was

required to work overtime. He explained that he generally worked forty to fifty hours

overtime in a two-week period, he was tired all the time now, and he did not have the

energy or time to do things with his family as he would have liked.

The jury here did not specify how it arrived at the $100,000 award. Du Pont

assumes it awarded Mr. Vawter $57,008.84 for his humiliation and embarrassment based

on Mr. Vawter‟s evidence that he suffered a loss of $42,991.16 in lost wages up to the

time of trial. The THRA specifically provides for the payment of damages to a

complainant asserting unlawful discrimination for injuries caused by the discrimination,

“including humiliation and embarrassment.” Tenn. Code Ann. § 4-21-306(a)(7). “The

amount of such damages is primarily within the ambit of the jury, and is largely

dependent on the jury‟s perception of the personal shame articulated by the discharged

employee.” Barnes v. Goodyear Tire & Rubber Co., No. 2000-01607-COA-RM-CV,

2001 WL 568033, at *9 (Tenn. Ct. App. May 25, 2001). In another case where a plaintiff

was discharged and filed an age discrimination case against his employer, the Court of

Appeals addressed the proper amount of damages to be awarded for humiliation and

embarrassment:

The amount is peculiarly within the province of the jury subject to the rule

of reasonableness, and necessarily depends on the articulation of personal

shame experienced by the discharged plaintiff together with the jury‟s

perception of his sensitivities. A summary discharge on account of age

might be devastating to a person of refinement and gentle nature, while of

little consequence to a person less sensitive or more calloused.

9

McDowell v. Shoffner Indus. Of Tenn., Inc., No. 03A01-9301-CH00030, 1993 WL

262846, at *4 (Tenn. Ct. App. July 13, 1993)). “The analysis is necessarily subjective in

nature.” Boone v. City of Lavergne, No. M2010-00052-COA-R3-CV, 2011 WL 553757,

at *11 (Tenn. Ct. App. Feb. 16, 2011).

In response to du Pont‟s post-trial motions, the trial court found the preponderance

of the evidence supported the jury‟s verdict and denied du Pont‟s motion to suggest a

remittitur. Unlike the trial court, we did not have the opportunity to observe Mr.

Vawter‟s demeanor or credibility and have no way of judging the degree of

embarrassment and humiliation Mr. Vawter suffered as a result of du Pont‟s failure to

offer him a job. We have no basis upon which to rule that the amount of damages the

jury determined was appropriate to award Mr. Vawter, and that the trial court approved

after observing him testify, was unreasonable.3 As a result, we affirm the trial court‟s

judgment awarding Mr. Vawter $100,000 in compensatory damages. See Boone, 2011

WL 553757, at *13 (in THRA case where jury awarded damages for embarrassment and

humiliation, Court of Appeals stated “appellate courts must support the amount approved

by the trial court if there is material evidence to support the verdict”).

C. Front Pay Award

Du Pont‟s final argument is that the trial court erred in awarding Mr. Vawter front

pay for three years in the amount of $112,120.07. When the trial court refused Mr.

Vawter‟s request to require du Pont to hire him for the general operator position, Mr.

Vawter sought an award of front pay. Front pay is a monetary award used to compensate

a plaintiff for the loss of future earnings and is available as a remedy in cases of

employment discrimination when reinstatement is not available as a remedy. Coffey v.

Fayette Tubular Prod., 929 S.W.2d 326, 332 (Tenn. 1996). Front pay is inherently

speculative because of its prospective nature, and so the courts of this state consider

certain factors to determine whether front pay may be appropriate in a particular

situation. Id. These factors were announced in a case involving a termination rather than

a failure to hire, and they include the following:

(1) the employee‟s future in his or her old job; (2) the employee‟s work and

life expectancy; (3) the employee‟s obligation to mitigate his or her

damages; (4) the availability of comparable employment opportunities and

the time reasonably required to find another job; and (5) the amount of any

award for liquidated or punitive damages.

3

Du Pont points out that the humiliation and embarrassment Mr. Vawter suffered was not entirely due to

du Pont‟s failure to hire him, but also resulted from his overall disappointment about not being employed.

We do not believe this distinction renders the award unreasonable, however. The jury could have found,

based on the evidence introduced, that Mr. Vawter‟s embarrassment and humiliation did not end when he

was hired by Veolia because Veolia paid him considerably less than du Pont would have, and he was

required to work so many more hours each pay period than he would have at du Pont.

10

Sasser v. Averitt Express, Inc., 839 S.W.2d 422, 434 (Tenn. Ct. App. 1992). Mr.

Vawter‟s situation differs from the plaintiffs‟ situations in Sasser v. Averitt Express, Inc.,

839 S.W.2d at 425-26, and Coffey v. Fayette Tubular Products, 929 S.W.2d at 327,

because the Sasser and Coffee plaintiffs were employees who were terminated, whereas

Mr. Vawter was a potential employee who was not hired. All three plaintiffs alleged

employment discrimination, however, and the analysis is similar to determine whether or

not an award of front pay is appropriate.

Mr. Vawter submitted an expert‟s report in support of his request for an award of

front pay.4 The expert estimated that Mr. Vawter had 5.53 years of working life left,

which was based on Mr. Vawter‟s age of 63 in December 2014, his health, education

level, and worklife tables. The expert then presented two different scenarios to calculate

the difference in earnings between the job Mr. Vawter had at Veolia Water and the

amount he would earn if he were working at du Pont as a general operator. The first

scenario considered Mr. Vawter‟s wages excluding the overtime hours he was required to

work at Veolia based on the evidence that du Pont does not require its general operators

to work overtime, and the second scenario considered Mr. Vawter‟s wages including the

overtime hours. The net present value of the first scenario was calculated to be

$131,917.86, and the net present value of the second scenario was calculated to be

$86,129.06. The trial court considered the expert‟s report and determined that Mr.

Vawter was entitled to front pay for three years in the amount of $112,120.07 based on

the first scenario.

Du Pont asserts the trial court erred in awarding Mr. Vawter any amount of front

pay on the basis that Mr. Vawter was fully compensated by being awarded his attorney‟s

fees and costs, in addition to the compensatory award of $100,000, and argues that the

award of front pay would constitute a windfall to Mr. Vawter. Du Pont also points out

that the Court of Appeals in Sasser opined that front pay is “a special remedy, not

necessarily warranted in every case but reserved for only the most egregious

circumstances.” Sasser, 839 S.W.2d at 433. According to one of the cases Sasser cites

in support of this statement, however, awarding front pay to a 41-year old employee who

was discriminatorily discharged might not be warranted, but “the failure to make such an

award for an employee age 63 . . . might be an abuse of discretion.” Davis v. Combustion

Eng’g, Inc., 742 F.2d 916, 923 (6th Cir. 1984).

The decision whether to award a plaintiff front pay in an employment

discrimination case is “governed by the sound discretion of the trial court.” Davis, 742

F.2d at 923. “A court abuses its discretion when it causes an injustice to the party

4

Du Pont initially objected to the report and sought an opportunity to depose Mr. Vawter‟s expert and/or

obtain its own expert and report, but du Pont later decided not to depose Mr. Vawter‟s expert or submit

alternative expert proof. The trial court thus considered Mr. Vawter‟s motion with only the expert report

submitted by Mr. Vawter as evidence.

11

challenging the decision by (1) applying an incorrect legal standard, (2) reaching an

illogical or unreasonable decision, or (3) basing its decision on a clearly erroneous

assessment of the evidence.” Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn.

2010). This standard of review involves a less rigorous review of the trial court‟s

decision and a lower likelihood that the decision will be reversed on appeal. Id. “It

reflects an awareness that the decision being reviewed involved a choice among several

acceptable alternatives [and] does not permit reviewing courts to second-guess the court

below, or to substitute their discretion for the lower court‟s.” Id. (citing Overstreet v.

Shoney’s, Inc., 4 S.W.3d 694, 708 (Tenn. Ct. App. 1999); White v. Vanderbilt Univ., 21

S.W.3d 215, 223 (Tenn. Ct. App. 1999), Henry v. Goins, 104 S.W.3d 475, 479 (Tenn.

2003); and Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998)).

The trial court, not the jury, determined the propriety and amount of front pay to

award Mr. Vawter. See Sasser, 839 S.W.2d at 435 (determining whether to award front

pay and the appropriate amount is a function for the court rather than the jury).

Considering the factors set forth above, we find the trial court did not abuse its discretion

by awarding Mr. Vawter front pay. The evidence at trial indicated that Mr. Vawter is in

good health and anticipates working for at least another few years. He mitigated his

damages by engaging in an intense search for employment immediately after he lost his

job with Velsicol Chemical and then accepting the best job he could find, working for

Veolia Water. No evidence was submitted suggesting he is likely to find alternative

employment at this point in his life. Finally, he was not awarded liquidated or punitive

damages. The award of front pay contributes to making Mr. Vawter whole and placing

him closer to where he would have been had du Pont offered him the position of general

operator in 2012. See Sasser, 839 S.W.2d at 433 (stating that in the employment

discrimination context, front pay and back pay awards help make plaintiff “whole”).

IV. CONCLUSION

We affirm the judgment of the trial court in all respects. Costs of this appeal shall

be taxed to the appellant, E. I. du Pont de Nemours and Company, for which execution

shall issue if necessary.

___________________________

ANDY D. BENNETT, JUDGE

12