David Pittington v. Great Smoky Mountain Lumberjack Feud

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 18a0016p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DAVID PITTINGTON, ┐

Plaintiff-Appellant, │

│

> No. 17-5590

v. │

│

│

GREAT SMOKY MOUNTAIN LUMBERJACK FEUD, LLC, │

Defendant-Appellee. │

┘

Appeal from the United States District Court

for the Eastern District of Tennessee at Knoxville.

No. 3:14-cv-00397—Pamela Lynn Reeves, District Judge.

Argued: December 1, 2017

Decided and Filed: January 24, 2018

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

_________________

COUNSEL

ARGUED: Jesse D. Nelson, NELSON LAW GROUP, PLLC, Knoxville, Tennessee, for

Appellant. Al Holifield, HOLIFIELD JANICH RACHAL & ASSOCIATES, PLLC, Knoxville,

Tennessee, for Appellee. ON BRIEF: Jesse D. Nelson, NELSON LAW GROUP,

PLLC, Knoxville, Tennessee, for Appellant. Al Holifield, HOLIFIELD JANICH RACHAL

& ASSOCIATES, PLLC, Knoxville, Tennessee, for Appellee.

MOORE, J., delivered the opinion of the court in which DAUGHTREY, J., joined.

SUTTON, J. (pp. 21–26), delivered a separate dissenting opinion.

No. 17-5590 Pittington v. Great Smoky Mountain Lumberjack Feud Page 2

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. Plaintiffs who successfully prove that they

were fired in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) are

presumptively entitled to back pay for the amount they would have earned had they not been

unlawfully terminated. Such awards are intended to compensate fully plaintiffs for the wrongs

that they suffered. For the same reason, an award of prejudgment interest on the back pay owed

is also nearly always appropriate. We conclude from these principles that a district court must

grant a motion for a new trial as to damages when a jury awards back pay to a Title VII plaintiff

in an amount that is substantially less than the damages to which he is indisputably entitled.

Once damages are calibrated correctly, the district court should also make an effort to align its

award of prejudgment interest (if such interest is requested and warranted) with Title VII’s

remedial goals. Because the district court failed to take those steps here, we REVERSE and

REMAND for further proceedings consistent with our opinion.

I. BACKGROUND

David Pittington (“Pittington”) worked for Great Smoky Mountain Lumberjack Feud,

LLC, (“Lumberjack”), a theater company in Pigeon Forge, Tennessee, for five months in 2012

until he was fired in retaliation for supporting his wife (who was also a Lumberjack employee) in

her sexual harassment complaint against Lumberjack. See R. 74 (Trial Tr. at 2–3, 15, 43) (Page

ID #2534–35, 2547, 2575). Before being fired, Pittington allegedly suffered a number of

additional hardships: he was demoted and his duties were diminished; his hours were reduced;

he was segregated from his coworkers and made to work in an unheated, outdoor shack; and

while in the shack, he was denied access to a padded chair that Lumberjack had previously

provided, and which he needed because of a pre-existing medical condition that caused his leg to

swell, his back to knot, and his mobility to be impaired if he stood for long periods of time.

See R. 1-1 (Am. Compl. ¶¶ 11–16, 20, 24, 28) (Page ID #18–22); R. 74 (Trial Tr. at 11, 29–32)

(Page ID #2543, 2561–64). Following his termination, Pittington sued Lumberjack in state

court, alleging that Lumberjack took adverse actions against him because of his disability, in

No. 17-5590 Pittington v. Great Smoky Mountain Lumberjack Feud Page 3

violation of the Americans with Disabilities Act (“ADA”), and because of his involvement in his

wife’s sexual harassment complaint, in violation of Title VII and the Tennessee Human Rights

Act. R. 1-1 (Am. Compl. ¶¶ 17–29) (Page ID #20–22). Lumberjack removed the case to federal

court, R. 1 (Notice of Removal) (Page ID #1–2), and the parties ultimately proceeded to trial

before a jury.

At trial, Pittington presented the following evidence of his earnings during and after his

employment at Lumberjack:

1. Pittington testified that he began working for Lumberjack in June 2012 as a

box office clerk. R. 74 (Trial Tr. at 8, 47–48) (Page ID #2540, 2579–80).

When asked to approximate his starting salary at Lumberjack, Pittington

testified that he earned “[m]aybe $8 an hour” to start. Id. at 8 (Page ID

#2540).

2. Pittington recalled receiving two promotions while working at Lumberjack.

Soon after he joined Lumberjack, he was promoted from “box office clerk” to

“a.m. lead.” Id. at 11 (Page ID #2543). He was then promoted again from

“lead” to “assistant box office manager.” Id. at 12 (Page ID #2544).

3. On cross-examination, Lumberjack’s counsel inquired into Pittington’s pay

raises while at Lumberjack. Lumberjack’s counsel asked, “[Y]our testimony

is, I think, you received two promotions, but did you not go from $8 to

$10.50 [per hour] once you went to a lead, and there w[ere] no other pay

raises?” Id. at 48–49 (Page ID #2580–81). Pittington responded that he

would “have to see the paper” because he did not “recall off the top of [his]

head.” Id. at 49 (Page ID #2581). He later testified that, “[o]ff the top of [his]

head,” he remembered receiving only one pay raise. Id. at 51 (Page ID

#2583).

4. Pittington testified that he typically worked eight hours per day for a total of

forty hours per week while working at Lumberjack. Id. at 8, 57 (Page ID

#2540, 2589). Lumberjack admitted Pittington’s time cards for his “entire

time of employment” into evidence. Id. at 93 (Page ID #2625). Lumberjack’s

counsel walked Pittington through his time cards on September 28,1 October

1, October 2, and October 8, 2012. Id. at 58–59 (Page ID #2590–91).

Pittington agreed that his time cards for September 28, October 1, and October

2 show that he worked more than eight hours on three of those four days. Id.

1

Lumberjack’s attorney referred to the time cards for “October 28, October 1, October 2, and October 8,”

but since Pittington’s employment was terminated on October 8, we assume that Lumberjack’s attorney was actually

referring to Pittington’s time card for September 28 rather than October 28. In any event, the correct date of this

time card is not critical to the resolution of this case.

No. 17-5590 Pittington v. Great Smoky Mountain Lumberjack Feud Page 4

5. After being fired from Lumberjack on October 8, 2012, Pittington testified

that he did not gain new employment until April 2013. Id. at 2–3, 59 (Page ID

#2534–35, 2591). He testified that he “look[ed] for work during that time.”

Id. at 3 (Page ID #2535).

6. Pittington testified that he was hired in April 2013 by Perry Smith

Development. Id. Pittington worked in the corporate office for Perry Smith

Development handling guest relations. Id. His pay at Perry Smith

Development started at $7.25 per hour. Id. He was laid off by Perry Smith

Development after a corporate reorganization. Id. at 4 (Page ID #2536). He

was laid off “maybe [in] the end of August, beginning of September.” Id. at 3

(Page ID #2535).

7. Pittington testified that his next job was with the Cyrus Family Theater. Id. at

4 (Page ID #2536). That position began in “either May or June” of 2014. Id.

He was supposed to receive $500 a week while working there, but his

employer “wrote bad checks or just didn’t write a check at all during that

time.” Id. at 4–5 (Page ID #2536–37). He worked there until October 2014

and received “[m]aybe one or two checks” during that time. Id. at 5 (Page ID

#2537).

8. Pittington testified that he was next employed by Sablé Equestrian Theater in

January 2015. Id. at 5 (Page ID #2537). He received $500 or $600 per week

while there. Id. at 6 (Page ID #2538). He worked at Sablé Equestrian Theater

until it went of business in September 2015. Id.

9. Pittington testified that he was next employed by the Clarion Inn, a hotel. Id.

at 6 (Page ID #2538). In its jury instructions, the district court informed the

jury that “[t]he parties stipulate that Mr. Pittington fully mitigated his damages

as of October 12, 2015,” when he secured employment at the Clarion Inn, and

therefore “any damages awarded in the form of back pay should not go

beyond October 12, 2015, . . . . as this is the date that Mr. Pittington obtained

a new job of like kind, status, and pay.” Pittington, 2017 WL 1393718, at *2.

10. Pittington’s counsel asked Pittington whether it is “hard to keep a good job at

a theater in Pigeon Forge.” R. 74 (Trial Tr. at 6) (Page ID #2538). Pittington

responded: “I wouldn’t say it’s hard to keep a good job. There’s a lot of

theaters in town. I’m not sure if it’s exactly hard to keep a job. There’s a lot

of theaters that have—some theaters have employees that have been there

quite some time.” Id. at 6–7 (Page ID #2538–39). He then clarified that it

was “common in Pigeon Forge” for theaters to “fold[].” Id. at 7 (Page ID

#2539).

During his closing remarks, Pittington’s attorney urged the jury to award Pittington

$40,632.50 in back pay. R. 91 (Trial Tr. at 15) (Page ID #2984). Counsel reached this number

by assuming that Pittington would have received $10.50 per hour and worked an average of forty

hours per week had he remained employed by Lumberjack. Id. at 14 (Page ID #2983). He stated

No. 17-5590 Pittington v. Great Smoky Mountain Lumberjack Feud Page 5

that Pittington remained unemployed following his termination from Lumberjack for twenty-

eight weeks, and thus was owed $11,760 for that time. Id. Pittington then worked for twenty-

one weeks beginning in April 2013, but he did not earn as much at Perry Smith Development as

he had at Lumberjack, and thus was, according to his counsel, entitled to $4,252.50 in deficiency

wages. Id. He was then unemployed again for thirty-five weeks, which counsel calculated as

$14,700 in lost wages. Id. at 14–15 (Page ID #2983–84). Pittington then worked at Cyrus

Family Theater from June 2014 to October 2014, but received only two paychecks of $500 each

during that time, and therefore counsel argued that Pittington was owed $8,240 in in back pay for

those twenty-two weeks. Id. at 15 (Page ID #2984). Pittington was unemployed again for three

weeks, and then worked at Sablé Equestrian Theater from January 2015 through September

2015. Id. Because Pittington was “making more [money] at a similar job,” Pittington’s attorney

conceded that Pittington was not owed any damages for that period. Id. Finally, Pittington was

unemployed for another four weeks (after Sablé closed down and before beginning his work at

Clarion Inn), and was thereby owed $1,680 in back pay for that period, according to his attorney.

Id. All told, the above figures added up to $40,632.50. See id. at 14–15 (Page ID #2983–84).

For his part, Lumberjack’s attorney in closing urged the jury to find that Pittington had

failed to mitigate adequately his damages and therefore was not entitled to the full amount of

back pay that he requested. In particular, Lumberjack’s counsel stated:

They talked about the money damages. I hope we don’t get to this part of

the case; but if we do, the plaintiff has a duty to mitigate. And one thing that

stuck out as the plaintiff was talking about damages, did you hear the time period

of 35 weeks unemployed? Pigeon Forge? That’s a long time to not get a job in

Pigeon Forge. Fifty-two weeks in a year. That means only 17 weeks employed

that year. There’s a duty to mitigate. There’s a duty to get a job. So do you have

to award all the back pay they’re seeking? No.

R. 95 (Trial Tr. at 15) (Page ID #3062).

After deliberations, the jury returned a verdict in Pittington’s favor on his Title VII and

Tennessee Human Rights Act retaliation claims.2 R. 72 (Judgment) (Page ID #1545). Though

2

At the close of Lumberjack’s case, the district court entered a directed verdict in favor of Lumberjack on

Pittington’s ADA claim. See Appellee Br. at 3 n.1; R. 66 (Minute Entry for Jury Trial, Day 3) (Page ID #1531).

Pittington did not appeal this order.

No. 17-5590 Pittington v. Great Smoky Mountain Lumberjack Feud Page 6

the jury declined to award Pittington any compensatory or punitive damages, it awarded

Pittington $10,000 in back pay. R. 72 (Judgment) (Page ID #1545). This figure puzzled

Pittington, as he believed that his uncontroverted testimony at trial established that he was owed

more than $40,000 in back pay. He therefore filed a motion urging the district court to increase

the jury’s damages award under Federal Rule of Civil Procedure 59(e)3 or else hold a new trial as

to damages under Federal Rule of Civil Procedure 59(a).4 R. 77 (Mem. in Support of Pl.’s

Motion to Alter/Amend Judgment at 3–5) (Page ID #2669–71). He also asked the district court

to award him front pay and prejudgment interest on his back pay award at a rate of 10%, which is

the maximum amount allowed under Tennessee law for violations of the Tennessee Human

Rights Act. Id. at 6–9 (Page ID #2672–75); see also Tenn. Code Ann. § 47-14-123.

The district court declined to award front pay, increase Pittington’s back pay award, or

hold a new trial as to damages, but it agreed that prejudgment interest on the back pay award was

warranted. See Pittington v. Great Smoky Mountain Lumberjack Feud, LLC, No. 3:14-CV-

00397, 2017 WL 1393718, at *2–4 (E.D. Tenn. Apr. 18, 2017). Concluding that the 10%

interest rate that Pittington had requested would afford him an undue windfall, the district court

opted instead to award compound prejudgment interest at the rate set forth in 28 U.S.C.

§ 1961(a), which governs the postjudgment interest rate in federal cases. Id. at 3. At the time of

judgment in this case, § 1961(a) called for an interest rate of 0.66%. See Appellant Br. at 8

& n.1.

On appeal, Pittington challenges the district court’s refusal to increase the jury’s damage

award or otherwise hold a new trial as to damages, along with the district court’s decision to

award prejudgment interest in accordance with the rate set by 28 U.S.C. § 1961(a). See

Appellant Br. at 6–9. Pittington does not appeal the district court’s denial of his request for front

pay.

3

Rule 59(e) of the Federal Rules of Civil Procedure permits parties to file “[a] motion to alter or amend a

judgment . . . no later than 28 days after the entry of the judgment.” Fed. R. Civ. P. 59(e).

4

With respect to jury trials, Rule 59(a) authorizes district courts, on motion, to grant a new trial as to some

or all issues “after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in

federal court.” Fed. R. Civ. P. 59(a)(1)(A).

No. 17-5590 Pittington v. Great Smoky Mountain Lumberjack Feud Page 7

II. DISCUSSION

A. Standard of Review

We review for abuse of discretion a district court’s denial of a motion for a new trial

under Rule 59(a), denial of a motion to alter or amend a judgment under Rule 59(e), and award

of prejudgment interest. See Nat’l Ecological Found. v. Alexander, 496 F.3d 466, 476 (6th Cir.

2007) (discussing Rule 59(e)); Rybarczyk v. TRW, Inc., 235 F.3d 975, 985 (6th Cir. 2000)

(discussing award of prejudgment interest); Anchor v. O’Toole, 94 F.3d 1014, 1021 (6th Cir.

1996) (citing Gafford v. Gen. Elec. Co., 997 F.2d 150, 171 (6th Cir. 1993)) (discussing Rule

59(a)). “An abuse of discretion occurs if the district court relies on clearly erroneous findings of

fact, applies the wrong legal standard, misapplies the correct legal standard when reaching a

conclusion, or makes a clear error of judgment.” Louzon v. Ford Motor Co., 718 F.3d 556, 560

(6th Cir. 2013) (quoting Miller v. Countrywide Bank, N.A., 708 F.3d 704, 707 (6th Cir. 2013)).

We review de novo any legal conclusions the district court reached in the course of assessing a

motion under Rule 59. Nat’l Ecological Found., 496 F.3d at 476.

B. Denial of Motion to Order a New Trial as to Damages Under Rule 59(a)

In reviewing the district court’s denial of Pittington’s motion for a new trial as to

damages, three key principles guide our analysis. First, successful Title VII plaintiffs are

presumptively entitled to back pay, and they ought to receive enough back pay to make them

whole—“that is, to place [them] in the position [they] would have been in but for

discrimination.” Rasimas v. Michigan Dep’t of Mental Health, 714 F.2d 614, 626 (6th Cir.

1983). It is thus an abuse of discretion to set a back pay award that falls far short of this

restorative goal, see United States v. City of Warren, 138 F.3d 1083, 1097 (6th Cir. 1998), but it

is also an abuse of discretion to disturb a jury’s back pay award that adequately approximates the

amount the Title VII plaintiff was unlawfully denied, see Anchor, 94 F.3d at 1021. Put

differently, a jury award of back pay ought to stand unless “the evidence indicates that the jury

awarded damages in an amount substantially less than unquestionably proved by the plaintiff’s

uncontradicted and undisputed evidence. Thus, if the verdict is supported by some competent,

No. 17-5590 Pittington v. Great Smoky Mountain Lumberjack Feud Page 8

credible evidence, a trial court will be deemed not to have abused its discretion in denying [a]

motion” for a new trial as to damages. Id.

Second, the Title VII plaintiff bears the burden of proving damages with “reasonable

certainty,” see Blackwell v. Sun Elec. Corp., 696 F.2d 1176, 1192 (6th Cir. 1983) (citing EEOC

v. Detroit Edison Co., 515 F.2d 301, 314–16 (6th Cir. 1975)), but “back pay in a Title VII case

need not be proven with the exactitude of lost profits in a breach of contract case,” Hance v.

Norfolk S. Ry. Co., 571 F.3d 511, 520 (6th Cir. 2009) (quoting Christopher v. Stouder Mem’l

Hosp., 936 F.2d 870, 880 (6th Cir. 1991)). “Backpay should be awarded even where the precise

amount of the award cannot be determined. Any ambiguity in what the claimant would have

received but for discrimination should be resolved against the discriminating employer.”

Rasimas, 714 F.2d at 628 (citations omitted). Generally, back pay is calculated by subtracting

“the amount that the plaintiff actually earned while being discriminated against [from] the

amount that the plaintiff would have earned if no discrimination had occurred.” Szeinbach v.

Ohio State Univ., 820 F.3d 814, 821 (6th Cir.), cert. denied, 137 S. Ct. 198 (2016)).

Finally, Title VII requires plaintiffs to mitigate damages. Rasimas, 714 F.2d at 623

(citing 42 U.S.C. § 2000e-5(g)). This rule is designed “to prevent claimants from recovering for

damages which they could have avoided through reasonable diligence.” Id. (citing Ford Motor

Co. v. EEOC, 458 U.S. 219, 231–32 (1982)). To that end, courts must deduct any “[i]nterim

earnings or amounts earnable with reasonable diligence by the person . . . discriminated against”

from the plaintiff’s back pay award. Id. (quoting 42 U.S.C. § 2000e-5(g). Though the plaintiff

bears the initial burden of “establish[ing] a prima facie case and present[ing] evidence on the

issue of damages,” the defendant bears the subsequent burden of “establish[ing] the amount of

interim earnings or lack of diligence.” Id. (citations omitted). “The [d]efendant may satisfy his

burden only if he establishes that: 1) there were substantially equivalent positions which were

available; and 2) the claimant failed to use reasonable care and diligence in seeking such

positions.” Id. at 624 (citing Sias v. City Demonstration Agency, 588 F.2d 692, 696 (9th Cir.

1978); EEOC v. Sandia Corp., 639 F.2d 600, 627 (10th Cir. 1980)) (emphasis added). In other

words, the plaintiff is “‘entitled to the amount claimed unless the defendant can prove’

No. 17-5590 Pittington v. Great Smoky Mountain Lumberjack Feud Page 9

otherwise.” EEOC v. Wilson Metal Casket Co., 24 F.3d 836, 841 (6th Cir. 1994) (quoting

Wooldridge v. Marlene Indus. Corp., 875 F.2d 540, 547 (6th Cir. 1989)).

In light of the above principles, the district court abused its discretion in this case when it

refused to hold a new trial on the issue of damages. The district court interpreted the jury’s

damages award of $10,000 as approximating the compensation Pittington “would have earned

from the time he was terminated in October 2012, until he obtained employment in April 2013.”

Pittington, 2017 WL 1393718, at *2. Given this interpretation, the district court necessarily

understood the jury to have credited Pittington’s testimony regarding his compensation at

Lumberjack—namely, that he earned between $8 and $10.50 per hour during his time at

Lumberjack and worked an average of 40 hours of week, and therefore would have earned

somewhere between $8,000 and $10,500 in the 25 weeks between October 8, 2012 and April 1,

2013. Nevertheless, the district court determined that the jury was justified in declining to award

damages to Pittington for the remaining periods of unemployment or underemployment that he

experienced between August/September 2013 and October 2015 because Pittington had “failed

to provide the jury with necessary information needed to determine his damages or to establish

his damages with ‘reasonable certainty’” as to those times. Id. In particular, the district court

faulted Pittington for failing (1) to “provide specific testimony regarding the periods of time he

was unemployed or his efforts to find employment during those periods other than to state that he

‘looked for work’”; (2) to submit “documentation to substantiate his testimony as to his

employment or the amounts he earned while employed”; and (3) “to provide any documentation

to support the calculation of his claim for back pay.” Id. Such critiques were unfounded, as

Pittington did not bear the burden of producing evidence as to his efforts at mitigation.

As noted above, plaintiffs in Title VII cases have a duty to mitigate damages, but “‘the

burden of producing sufficient evidence to establish the amount of interim earnings or lack of

diligence’ in mitigating damages” rests with the defendant. Wooldridge, 875 F.2d at 548

(quoting Rasimas, 714 F.2d at 623). We have previously rebuked district courts for “appl[ying]

incorrect legal principles in apparently requiring the employees to prove their efforts to mitigate

their damages.” Id. Indeed, we have been quite clear that “[a] claimant is not required to submit

evidence of diligence and reasonable care in seeking employment until [the] defendant has met

No. 17-5590 Pittington v. Great Smoky Mountain Lumberjack Feud Page 10

its burden.” Id. (citing Sprogis v. United Air Lines Inc., 517 F.2d 387, 392 (7th Cir. 1975)).

Thus, where, as here, a defendant has offered no evidence indicating that “substantially

equivalent positions . . . were available” and that “the claimant failed to use reasonable care and

diligence in seeking such positions,” Rasimas, 714 F.2d at 624 (citations omitted), a plaintiff has

no legal obligation to demonstrate that he sought or obtained comparable employment after his

unlawful termination. The district court’s holding that “it [was] up to the jury to decide whether

plaintiff attempted to mitigate his damages,” Pittington, 2017 WL 1393718, at *2, is therefore

legally incorrect insofar as the district court believed that the jury’s findings could be based on

Pittington’s failure to prove mitigation, as opposed to Lumberjack’s proof that Pittington’s

mitigation efforts were unreasonable in light of the employment opportunities available to him.

Lumberjack contends that the district court did not improperly shift the burden onto

Pittington to prove mitigation, but instead properly upheld the damages verdict because the jury

had “infer[red] a lack of mitigation.” Appellee Br. at 23. Once again, such an argument is

legally tenable only if a reasonable jury could find that Lumberjack proved by a preponderance

of the evidence that “substantially equivalent positions” were available to Pittington and that

Pittington had “failed to use reasonable care and diligence in seeking such positions.” Rasimas,

714 F.2d at 624. But Lumberjack provided no evidence regarding the availability of comparable

employment in or around Pigeon Forge and made no effort to demonstrate that Pittington’s job-

search process was unreasonable. Compare R. 74 (Trial Tr. at 44–101) (Page ID #2576–2633)

(cross-examination of Pittington, in which no mention is made of the Pigeon Forge job market or

Pittington’s mitigation efforts), with Ford v. Nicks, 866 F.2d 865, 874–75 (6th Cir. 1989)

(holding that the defendant—a university that had improperly refused to retain the plaintiff as an

assistant professor of education—had adequately demonstrated the plaintiff’s failure to mitigate

by pointing to testimony from witnesses from three other universities that “during the relevant

period they had numerous openings for assistant professors of education and that [the plaintiff]

would have been qualified for these jobs” and showing that the plaintiff had refused to accept a

job offer from another university that was comparable to the position from which she had been

unlawfully fired). Rather, Lumberjack argues that such an inference may be grounded in

(1) Pittington’s statement that he’s “not sure if it’s exactly hard to keep a job [at a theater in

Pigeon Forge]. There’s a lot of theaters that have—some theaters have employees that have been

No. 17-5590 Pittington v. Great Smoky Mountain Lumberjack Feud Page 11

there quite some time,” Appellee Br. at 23 (quoting R. 74 (Trial Tr. at 6–7) (Page ID #2538–39);

and (2) the jury’s purported “common knowledge of the job market in Pigeon Forge as a year-

round tourist destination,” id. This argument is unpersuasive. Theater employees’ ability to

retain jobs tells the jury next to nothing about unemployed persons’ ability to secure jobs, and

Lumberjack provided no evidence from which the jury could infer that jobs comparable to

Pittington’s position at Lumberjack were readily accessible in Pigeon Forge. “[A] jury verdict

based on speculation, supposition, or surmise is impermissible.” Greene v. B.F. Goodrich

Avionics Sys., Inc., 409 F.3d 784, 793 (6th Cir. 2005). Thus, to the extent the district court

upheld the jury’s damages award on the ground that Lumberjack proved Pittington’s failure to

mitigate by a preponderance of the evidence, such a determination was a clear error of judgment

and an abuse of discretion.

Lumberjack alternatively argues that the district court affirmed the jury’s $10,000 back

pay award based on Pittington’s failure to prove damages, for which he bore the burden.

In particular, Lumberjack contends that Pittington failed to establish with reasonable certainty

either the gross amount of back pay he was owed (i.e., the amount he would have earned

between October 2012 and October 2015 had he continued to be employed by Lumberjack) or

the amount of wages he earned from the positions he held after being terminated by Lumberjack

(i.e., the amount by which his gross damages should be offset). This argument fails on both

fronts. First, Pittington testified that his starting salary at Lumberjack was approximately $8 per

hour, and he did not disagree with opposing counsel’s statement that his salary was subsequently

raised to $10.50 per hour.5 R. 74 (Trial Tr. at 8, 48–49) (Page ID #2540, 2580–81). Pittington

5

Q: Now, when you started at Lumberjack Feud, you began at $8 an hour. Isn’t that correct?

A: I believe so.

....

Q: I think—your testimony is, I think, you received two promotions, but did you not go from

$8 to $10.50 once you went to a lead, and there was no other pay raises?

A: I’d have to see the paper. I don’t recall off the top of my head.

....

Q: [I]s it your testimony that you had—were promoted from clerk to lead? Is that correct?

A: Yes.

Q: And then from lead to assistant box office—assistant box office manager?

A: Yes.

Q: And that there was two distinct pay raises?

No. 17-5590 Pittington v. Great Smoky Mountain Lumberjack Feud Page 12

further testified that he worked an average of forty hours per week at Lumberjack, and

Lumberjack admitted into evidence Pittington’s time cards for the “entire time of [his]

employment.” Id. at 8, 59, 92–93 (Page ID #2540, 2591, 2624–25). From this testimony and

documentation, the jury could reasonably discern that Pittington would have expected to earn a

weekly salary between $320 ($8 multiplied by forty hours) and $420 ($10.50 multiplied by forty

hours) had he remained employed at Lumberjack.6 Such evidence satisfied Pittington’s burden

of production regarding the gross amount of back pay that he was owed. See, e.g., Burton v.

Zwicker & Assocs., 577 F. App’x 555, 563 (6th Cir. 2014) (holding plaintiff’s testimony that “he

made approximately $46,000 in the first five months of 2010” supported jury award of $300,000

in back pay for the thirty-five months between his termination and the parties’ trial because he

was “entitled to a maximum of approximately $322,000 in back pay ($46,000 [total earnings] / 5

[months] = $9,200 [average monthly earnings] x 35 [months] = $322,000)”); Jackson v. City of

Cookeville, 31 F.3d 1354, 1358 (6th Cir. 1994) (upholding jury award of $63,055 for the two

years between the date of termination and the date of judgment, which equaled the plaintiff’s

salary for his last two years of employment before being unlawfully terminated). The district

court acknowledged as much, as it interpreted the jury award to constitute the salary Pittington

would have received between October 8, 2012 and April 2013, based on Pittington’s estimates of

his hourly wage and average weekly hours while employed by Lumberjack. See Pittington, 2017

WL 1393718, at *2.

Lumberjack’s second argument—that Pittington failed to prove sufficiently his interim

earnings—is legally untenable. Lumberjack, not Pittington, bore the burden of proving the

amount of Pittington’s interim earnings between discharge and judgment. See Rasimas, 714 F.2d

at 623; see also Burton, 577 F. App’x at 563 (refusing to modify a jury award that had failed to

A: I don’t remember if there was two distinct pay raises. I know that there was a pay raise with

the promotion.

Q: And so the pay raise that you would remember would be the one pay raise. Do you

remember two pay raises?

A: Off the top of my head, I remember one.

R. 74 (Trial Tr. at 48–51) (Page ID #2580–83).

6

Indeed, we have previously held that where a defendant indicates that the plaintiff worked at a higher

hourly rate than the plaintiff asserts, the jury ought to calculate the back pay award using the higher rate proffered by

the defendant. See Tramill v. United Parcel Serv., 10 F. App’x 250, 253–55 (6th Cir. 2001).

No. 17-5590 Pittington v. Great Smoky Mountain Lumberjack Feud Page 13

offset a plaintiff’s damages award by any wages that the plaintiff may have earned from other

jobs after his termination because the defendant “only established that [the plaintiff] was

employed,” but “did not present any evidence about [the plaintiff’s] interim earnings”). True, we

have consistently explained that “back-pay awards should make a plaintiff whole, not better off.”

See, e.g., Hance, 571 F.3d at 521. Thus, where, as here, a plaintiff offers some evidence of his

post-termination and pre-mitigation wages, the jury is entitled to take such information into

account when determining the amount of back pay needed to make the plaintiff whole. But no

reasonable jury could have deduced from Pittington’s testimony that he was owed only $10,000

in back pay. Pittington testified as to the approximate start and end dates of his employment

between October 2012 and October 2015, along with the reasons each job ended and the

approximate salary or hourly wage that he earned in each position. See R. 74 (Trial Tr. at 2–7)

(Page ID #2534–39). With the possible exception of Pittington’s position with Perry Smith

Development—where Pittington worked from April 2012 until the end of August or beginning of

September 2013 for $7.25 an hour, for an undisclosed number of hours, id. at 3–4 (Page ID

#2535–36)—the jury could reasonably estimate the amount of earnings Pittington secured from

his subsequent employment, see id. at 3–7 (Page ID #2535–39) (Pittington earned at most $1,000

while working at Cyrus Family Theater, assuming he received two paychecks during his time

there, and a little under $21,000 while working at Sablé Equestrian Theater, assuming an

approximate start date of January 1, 2015 and an approximate end date of September 1, 2015 and

a weekly wage of $600). Even if the jury declined to award Pittington any deficiency wages in

conjunction with his work at Perry Smith Development—a position that would be difficult to

square with the requirement that “[a]ny ambiguity in what the claimant would have received but

for discrimination should be resolved against the discriminating employer,” Rasimas, 714 F.2d at

628 (citations omitted)—Pittington nevertheless was entitled to something in the range of

$35,000 in damages.7 And even if the jury used Pittington’s starting hourly rate of $8 as the

7

Pittington’s gross damages equal $65,940 (10.5 hourly rate x 40 hours per week x 157 weeks between

October 8, 2012 and October 12, 2015). From that number, the jury should have subtracted the $1,000 Pittington

earned at Cyrus Family Theater and the $21,000 that Pittington earned during the roughly 35 weeks that he worked

at Sablé Equestrian Theater. Finally, assuming the jury was entitled to presume that Pittington earned as much as he

would have earned but for his unlawful termination during his time at Perry Smith Development, it could have

deducted an additional $9,240 from the gross award. All told, the final damages figure would amount to slightly

less than $35,000.

No. 17-5590 Pittington v. Great Smoky Mountain Lumberjack Feud Page 14

basis for its back pay calculation on the theory that Pittington never concretely established that

his rate had been raised to $10.50 per hour, he would still be entitled to over $21,000—more than

double what the jury actually awarded. It is true, of course, that “[o]nce the existence of

damages is shown with reasonable certainty, ‘the precise amount is necessarily left to the

discretion of the finder of fact, to be exercised reasonably and within the range of the proofs in

the case.’” Hill v. Spiegel, Inc., 708 F.2d 233, 238 (6th Cir. 1983) (quoting Drayton v. Jiffee

Chem. Corp., 591 F.2d 352, 366 (6th Cir. 1978)). But an award that amounts to somewhere

between 30% and 50% of what Pittington was legally due, based on his uncontroverted

testimony, is not “within the range of the proofs in the case.” See id.8

Finally, Lumberjack insists that even if Pittington satisfied his burden of production as to

his damages, he may have failed to meet his burden of persuasion, regardless of whether his

testimony “stands unrebutted.” See Appellee Br. at 12. Once again, this argument inverts the

proper burden of proof. The jury could not simply disbelieve Pittington’s testimony as to his

earnings between April 2013 and October 2015 and, on that basis, decide that Pittington was not

entitled to any back pay for those thirty months, particularly since the jury apparently found that

Pittington’s counsel offered a higher estimate in his closing argument at trial by arguing that Pittington

should not receive damages for his time working at Sablé Equestrian Theater because his salary there exceeded his

salary at Lumberjack. The proper way to calculate damages, however, is to subtract “the amount that the plaintiff

actually earned while being discriminated against [from] the amount that the plaintiff would have earned if no

discrimination had occurred.” Szeinbach, 820 F.3d at 821. Thus, the wages Pittington earned while working at

Sablé Equestrian Theater should have been deducted from his gross damages calculation, rather than merely zeroed

out.

8

Notably, the dissent agrees that the jury could have reasonably reached a back pay award of approximately

$21,000. The dissent, however, believes that the jury could then deduct $11,200 from the back pay award because

Pittington purportedly conceded “that it is not hard to get a job in Pigeon Forge” and he “could not explain how, or

if, any job search efforts came up short,” and therefore the jury could conclude that Pittington had failed to mitigate

damages during his thirty-five weeks of unemployment. See Dissent Op. at 23. As explained above, Lumberjack—

not Pittington—bore the burden of proving failure to mitigate. Pittington had no obligation to offer evidence of his

job-search efforts unless and until Lumberjack placed mitigation in issue. See Jackson, 31 F.3d at 1359 (“Though

the defendants are correct that the jury must consider mitigation of damages when such evidence is presented, the

jury has no obligation to create such figures out of thin air. . . . If the defendants wished the jury to find mitigation,

they should have presented the jury with evidence to that effect.”).

The dissent correctly observes that Lumberjack could have, in theory, relied on Pittington’s testimony to

meet its burden. But recall what “failure to mitigate” means: Lumberjack had to show that “substantially equivalent

positions . . . were available” and that Pittington “failed to use reasonable care and diligence in seeking such

positions,” Rasimas, 714 F.2d at 624. A jury could not reasonably glean, from the sole statement that it was not so

hard for long-time theater employees in Pigeon Forge to keep their jobs, that it would have been easy for Pittington

to get a comparable job in Pigeon Forge and that he had been lackadaisical in his efforts to do so.

No. 17-5590 Pittington v. Great Smoky Mountain Lumberjack Feud Page 15

Pittington had established with “reasonable certainty” the amount he would have earned during

that time had he remained employed at Lumberjack.9 To hold otherwise would authorize a fact

finder not merely to disregard testimony it disbelieves, but also to treat such “unbelieved

testimony [as] . . . sufficient grounds for drawing the opposite conclusion”—a prospect that we

have previously disfavored. See Duddy v. Kitchen & Bath Distribs., Inc. (In re H.J. Scheirich

Co.), 982 F.2d 945, 949 (6th Cir. 1993) (citing Bose Corp. v. Consumers Union of United States,

Inc., 466 U.S. 485, 512 (1984)).

This is not to suggest that a jury is precluded from making credibility determinations

when assessing damages in a discrimination case. A jury may, for instance, decline to award the

plaintiff’s full claim for back pay, notwithstanding the plaintiff’s “testimony that she had been

out of work for one year and one month,” where the defendant, “[t]hrough cross-examination,

. . . proved that [the plaintiff] failed to use reasonable diligence in seeking employment” during

that time. Voyles v. Louisville Transp. Co., 136 F. App’x 836, 838–39 (6th Cir. 2005). But

unlike in Voyles, the defendant here did not controvert or undermine Pittington’s testimony with

regard to damages. If anything, Lumberjack introduced evidence that would indicate that

Pittington was owed even more in back pay than the amount he claimed. See R. 74 (Trial Tr. at

92–93) (Page ID #2624–25) (admitting into evidence Pittington’s time cards, which showed that

he worked more than eight hours per day during at least part of his employment). Once a

plaintiff “prove[s] entitlement to back pay by providing information from which [his] damages

can be determined, . . . ‘[]he is presumed to be entitled to the amount claimed unless the

defendant can prove’ otherwise.” Wilson Metal Casket Co., 24 F.3d at 841 (quoting Wooldridge,

875 F.2d at 547).

In short, the district court applied an erroneous legal standard to the extent that it held

that the jury could find that Pittington had failed reasonably to mitigate his damages without

requiring Lumberjack to prove such unreasonableness by a preponderance of the evidence. If the

9

As the district court noted, the jury’s $10,000 award appears to correspond to the amount Pittington would

have received between October 2012 and April 2013 (i.e., his initial bout of unemployment after being unlawfully

terminated). If the jury credited Pittington’s testimony regarding his weekly hours and hourly rate, then it had all the

information it needed to calculate the pay Pittington would have received from Lumberjack between April 2013 and

October 2015, as well.

No. 17-5590 Pittington v. Great Smoky Mountain Lumberjack Feud Page 16

district court instead affirmed the jury’s damages award on the ground that Pittington had failed

to prove his damages from April 2013 through October 2015, such a decision would still amount

to an abuse of discretion because no reasonable jury could find that Pittington had failed to make

out a prima facie case as to the issue of damages. Because the $10,000 award Pittington received

was “substantially less than [even the lowest estimate of damages that had been] unquestionably

proved by the plaintiff’s uncontradicted and undisputed evidence,” see Anchor, 94 F.3d at 1021,

the district court erred in declining to order a new trial as to the issue of damages.10

C. Denial of Motion to Alter or Amend Judgment under Rule 59(e)

Although the district court should have ordered a new trial as to damages, it did not abuse

its discretion in denying Pittington’s motion to alter or amend the jury’s damage award under

Federal Rule of Civil Procedure 59(e). The Seventh Amendment provides certain civil litigants

in federal court the right to have a jury resolve factual issues. See Dimick v. Schiedt, 293 U.S.

474, 476 (1935). This constitutional right precludes district courts from granting additur in the

event of inadequate damages—i.e., conditioning the denial of a plaintiff’s motion for a new trial

on the defendant’s willingness to pay additional damages—because allowing a district court to

“bald[ly] add[] something which in no sense can be said to be included in the verdict” would

unduly impinge on the plaintiff’s right to have a jury decide the factual issue of damages. See id.

at 486.11

10

The dissent fears that our decision “run[s] the risk of rewarding a strategic choice gone awry” because

Pittington could have offered “W-2s, pay subs, [or] tax returns” to corroborate his statements at trial. Dissent Op. at

24. But a litigant is not required to introduce documentary evidence where testimony would suffice. See R & R

Assocs., Inc. v. Visual Scene, Inc., 726 F.2d 36, 38 (1st Cir. 1984) (“No evidentiary rule . . . prohibits a witness from

testifying to a fact simply because the fact can be supported by written documentation.”). And we worry that

affirming the district court’s judgment rewards a strategic choice in the other direction. Rather than establishing

Pittington’s lack of mitigation, Lumberjack’s counsel simply remarked in closing that thirty-five weeks of

unemployment was “a long time to not get a job in Pigeon Forge.” R. 95 (Trial Tr. at 15) (Page ID #3062).

Congress, the Supreme Court, and this court have made clear that successful Title VII plaintiffs are presumptively

entitled to back pay in the amount that would make them whole. See Rasimas, 714 F.2d at 626 (citing Albemarle

Paper Co. v. Moody, 422 U.S. 405, 421 (1975)). A defendant should not be able to avoid the consequences of its

discriminatory conduct by hinting, after the time for submitting proof has passed, that the plaintiff could have done

more to right the defendant’s wrongs.

11

As the Supreme Court explained in Dimick, remittitur (conditioning the denial of a defendant’s motion

for a new trial on the plaintiff’s willingness to remit excess damages) is permissible because the amount actually

owed was, in a sense, already found by a jury, and remittitur simply “lop[s] off an excrescence.” 293 U.S. at 486.

No. 17-5590 Pittington v. Great Smoky Mountain Lumberjack Feud Page 17

As we have previously acknowledged, other circuits have developed two narrow

exceptions to the prohibition against additur. First, additur may be appropriate when the parties

would prefer to consent to an increased damages figure rather than proceed to a new trial as to

damages. See Clay v. Gordon, 205 F.3d 1339, at *3 (6th Cir. 2000) (Table).12 Second, a court

may order additur, even without the parties’ consent, when “damages claims are definite and

incontrovertible,” such that there is “no genuine issue as to the correct amount of damages.” See

id. (second quote quoting EEOC v. Massey Yardley Chrysler Plymouth, Inc., 117 F.3d 1244,

1252 (11th Cir. 1997)); see also Jones v. Wal-Mart Stores, Inc., 870 F.2d 982, 986 (5th Cir.

1989) (holding that “[i]t would be a useless formality to grant a new trial on th[e] issue [of

damages if] the trial court would be required to grant summary judgment” for a particular

amount that was required as a matter of law), abrogated on other grounds by Gasperini v. Ctr.

for Humanities, 518 U.S. 415 (1996). The second exception is inapplicable here, as the proofs at

trial would have supported a range of back pay awards (even though even the lowest appropriate

award is plainly higher than the amount Pittington secured at trial). As to the first exception, we

leave it to the district court to determine whether it can reasonably approximate Pittington’s

damages and secure both parties’ consent to that figure. If not, the district court must hold a new

trial on damages and ensure that, this time, Pittington’s back pay award aligns with the proofs.

D. Award of Prejudgment Interest

Pittington contends that the district court abused its discretion by awarding prejudgment

interest on his back pay award at the rate established by the federal postjudgment statute,

28 U.S.C. § 1961, which equaled 0.66% as of the date of entry of judgment in this case. See

Appellant Br. at 25–27. According to Pittington, the district court was required to (1) consider

case-specific factors in determining the appropriate rate of prejudgment interest, and (2) select a

rate that at the very least kept up with the rate of inflation, as anything less would “not make him

whole and [would] provide[] a financial windfall to the offending employer.” Id. at 28–32.

12

In Clay, we suggested that additur would be appropriate with the plaintiff’s consent (rather than the

parties’ consent), presumably based on the assumption that additur as a remedy presumes that the defendant is

willing to pay an increased award in lieu of another trial. For the sake of clarity, we note that under the additur-by-

consent exception to Dimick, both parties must agree to an increased damages award to avoid implicating Seventh

Amendment concerns. See Dimick, 293 U.S. at 486 (noting that the Seventh Amendment entitles both parties “to

have a jury properly determine . . . the extent of the injury by an assessment of damages”).

No. 17-5590 Pittington v. Great Smoky Mountain Lumberjack Feud Page 18

Lumberjack, in turn, argues that Pittington urged the district court to apply the 10%

prejudgment interest rate available to plaintiffs in discrimination cases under Tennessee law, and

therefore forfeited the opportunity to argue for a different rate before this court. See Appellee

Br. at 26–30. In addition, Lumberjack argues that the federal rate set forth in 28 U.S.C. § 1961

was an appropriate rate because it satisfied Title VII’s goal of making “victims of discrimination

whole and compensat[ing] them for the true cost of money damages they incurred.” City of

Warren, 138 F.3d at 1096 (quoting Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1170

(6th Cir.), opinion amended on denial of reh’g, 97 F.3d 833 (6th Cir. 1996)).

We hold that the district court abused its discretion in applying a prejudgment interest

rate of 0.66%. Pittington did not, as Lumberjack and the dissent insist, forfeit its opportunity to

argue for a rate other than the 10% maximum authorized by Tennessee law. In response to

Lumberjack’s argument that the district court should adopt the federal postjudgment interest rate

in its briefing before that court, Pittington acknowledged that the district court had discretion

over “the applicable interest rate and method of calculation,” and urged the court to “compensate

him as completely as possible in light of the circumstances of this case[,] . . . [r]egardless of the

rate and method the Court chooses to utilize.” R. 83 (Pl. Reply in Support of Mot. to

Alter/Amend Judgment at 6) (Page ID #2900). In so doing, Pittington adequately argued in

favor of a fair rate—even though we agree that he would have been better served if he had

provided the district court with some guidance as to what that rate should be.

On the merits, then, the district court failed to consider adequately case-specific factors

before applying the federal statutory rate set forth in 28 U.S.C. § 1961, as required by

Schumacher v. AK Steel Corp. Ret. Accumulation Pension Plan, 711 F.3d 675, 685–87 (6th Cir.

2013). As the dissent notes, we have previously recognized that “the statutory postjudgment

framework set forth in 28 U.S.C. § 1961 is a reasonable method for calculating prejudgment

interest awards,” Meoli v. Huntington Nat’l Bank, 848 F.3d 716, 735 (6th Cir. 2017) (quoting

Ford v. Uniroyal Pension Plan, 154 F.3d 613, 619 (6th Cir. 1998))—but only if the district court

ensures that the “the statutory rate [is] fair,” id. at 736. To that end, district courts must consider

a series of factors before applying the statutory rate, including “the remedial goal to place the

plaintiff in the position that he or she would have occupied prior to the wrongdoing; the

No. 17-5590 Pittington v. Great Smoky Mountain Lumberjack Feud Page 19

prevention of unjust enrichment on behalf of the wrongdoer; the lost interest value of money

wrongly withheld; and the rate of inflation.” Schumacher, 711 F.3d at 687. This is not to say

that all factors will weigh evenly in all cases. For example, where the plaintiff is bound by

fiduciary duties to invest conservatively, a court does not abuse its discretion in viewing the low

market-interest rates associated with “the safe type of investment that is expected of a fiduciary”

as adequate, even if the court fails to “specifically address the [presumably higher] rate of

inflation in relation to the treasury bill rate.” Meoli, 848 F.3d at 736. But even though a court

may conclude that certain factors are more pertinent than others under certain circumstances, a

court may not apply § 1961 without considering any relevant case-specific factors. Here, the

district court’s analysis was too terse to satisfy even a narrow reading of Schumacher’s

requirements.

First, the district court observed that Pittington’s requested rate of 10% per year “would

be a windfall,” but failed to examine whether 0.66% would afford Lumberjack a windfall in the

opposite direction, see Pittington, 2017 WL 1393718, at *3—an error this court has criticized

before. See Schumacher, 711 F.3d at 687 (“The district court was concerned with an award that

would produce a ‘windfall’ that would punish [the defendants], although it seems that it did the

opposite and created a windfall in favor of [the defendant’s] wrongdoing.”). Second, the district

court noted the “low rates of interest and inflation over the relevant period,” Pittington, 2017 WL

1393718, at *3, but it made no effort to (1) explain which of many possible “low [market] rates

of interest” it was considering, or (2) compare those rates to the statutory rate set forth in § 1961.

Finally, the district court focused on Pittington’s failure to provide evidence as to an appropriate

rate. While this criticism was warranted, and may well have justified the district court’s refusal

to apply the 10% interest rate authorized under Tennessee law, it does not excuse the district

court’s failure to consider whether the rate that Lumberjack suggested would plainly fail to

satisfy Title VII’s remedial goals. See Schumacher, 711 F.3d at 687.

Admittedly, Pittington’s failure to provide any information regarding the lost interest

value of the money he was owed made it harder for the district court to determine what

prejudgment interest rate would fully compensate Pittington “for the true cost of damages [he]

incurred.” See City of Warren, 138 F.3d at 1096 (quoting Thurman, 90 F.3d at 1170). But

No. 17-5590 Pittington v. Great Smoky Mountain Lumberjack Feud Page 20

“[t]here is no indication that the phrase ‘make whole’ requires a detailed evidentiary

demonstration of what use the [plaintiff] would have made of the money had he received it, and

there is no precedent in the Sixth Circuit that such a showing is required . . . in civil litigation.”

Rochow v. Life Ins. Co. of N. Am., No. 04-73628, 2016 WL 5476240, at *4 (E.D. Mich. Sept. 29,

2016), reconsideration denied, No. 04-73628, 2017 WL 4236594 (E.D. Mich. Sept. 25, 2017).

Thus, even absent any evidence by Pittington regarding the lost interest value of his damages, the

district court abused its discretion when it applied the federal statutory rate provided in § 1961

without considering whether that rate satisfied Title VII’s remedial purposes and avoided

unjustly enriching the wrongdoer. Given the marked difference between the treasury bill rate

prevailing at the time Pittington secured judgment and the average rate of inflation over the

relevant time period, it is difficult to see how the § 1961 rate could possibly satisfy those twin

goals in this case.13

III. CONCLUSION

For the foregoing reasons, we REVERSE the district court’s denial of Pittington’s

motion for a new trial on the issue of damages, as the district court abused its discretion by

applying an erroneous legal standard in its consideration of Pittington’s motion or else made a

clear error of judgment in determining that the jury’s award was reasonable in light of

Pittington’s uncontroverted evidence as to damages. We also REVERSE the district court’s

decision to award prejudgment interest at the rate specified by 28 U.S.C. § 1961(a) because the

district court failed to consider case-specific factors, such as the effects of inflation and Title

VII’s remedial goals. We VACATE the district court’s order, see R. 87 (Dist. Ct. Mem. and

Order) (Page ID #2955–63), and REMAND for further proceedings consistent with this opinion.

13

The dissent believes that Pittington’s petition for a fair rate was too vague and too late to preserve the

issue for appeal. See Dissent Op. at 25–26. But Pittington requested prejudgment interest in his opening brief; he

did not then forfeit that request by acknowledging in his reply brief that the district court could decide to award him

a lower rate than he believed appropriate. Once a plaintiff asks for prejudgment interest, the trial court must

consider case-specific factors to determine what rate would make the plaintiff whole. See Schumacher, 711 F.3d at

685–87. A plaintiff’s failure to guide the court’s analysis may limit his ability to challenge later the way various

factors were balanced, but it does not prevent him from appealing a district court’s failure to consider relevant case-

specific factors at all.

No. 17-5590 Pittington v. Great Smoky Mountain Lumberjack Feud Page 21

_________________

DISSENT

_________________

SUTTON, Circuit Judge, dissenting. It is tempting to join the court’s decision to reverse

this $10,000 verdict and to go along with its conclusion that Pittington is entitled to more

damages (apparently somewhere between $10,000 and $35,000) and is entitled to more

prejudgment interest (apparently something more than $228). The financial stakes are not high.

But I cannot “rebuke[]” the district court, supra at 9, for taking this case as it came to her.

Perhaps because of the relatively small amount of money sought by Pittington, his counsel

introduced some evidence of damages and neglected many other sources of evidence, making it

exceedingly nebulous for anyone—jury, district court judge, appellate judges—to be sure about

what he fairly deserved. And perhaps because of those modest stakes, his counsel made only one

argument about prejudgment interest—that he was entitled to a 10% per year interest award on

the judgment, a princely rate of return if you could get it during the time at hand. Under these

circumstances, the district court judge did not exceed her considerable discretion in rejecting

Pittington’s request for a new trial on damages and in rejecting his request for a 10%

prejudgment interest award on the judgment.

Backpay award. Pittington bases his argument on a black-letter principle: that

Lumberjack, the defendant, had the burden to show that he, the plaintiff, failed to mitigate

damages. Rasimas v. Mich. Dep’t of Mental Health, 714 F.2d 614, 623–24 (6th Cir. 1983). But

he fails to apply that principle correctly. He first ignores the reality that, in a burden-shifting

framework, the burden must shift from somewhere. In this case, Pittington had to start by

showing the amount of pre-mitigation backpay Lumberjack owed within a “reasonable

certainty.” Blackwell v. Sun Elec. Corp., 696 F.2d 1176, 1192 (6th Cir. 1983). That meant he

had to show what wages he received before the discharge. Despite defense counsel’s prodding,

he never testified or submitted evidence that he earned more than $8 per hour while working for

Lumberjack. The jury readily could have found that Pittington never proved that he received

$10.50 per hour at the time he was fired and thus reduced the pre-mitigation amount accordingly.

No. 17-5590 Pittington v. Great Smoky Mountain Lumberjack Feud Page 22

If I understand the court’s contrary conclusion, it turns on a question asked by

Lumberjack’s counsel. See R. 74 at 48–49 (Defense counsel: “I think—your testimony is, I

think, you received two promotions, but did you not go from $8 to $10.50 once you went to a

lead, and there was no other pay raises?” Pittington: “I’d have to see the paper. I don’t recall off

the top of my head.”); supra at 11–12. But questions are not answers. And questions are not

evidence. The only person in the exchange who could answer the question—and provide

evidence about the point—was Pittington. Yet he demurred. Before that and after that, for

reasons of their own, Pittington and his counsel never introduced evidence on the point during

his direct or redirect examination. No W-2s. No pay stubs. No income returns. No

documentation of any sort. All of which could make a reasonable jury skeptical about anything

Pittington said about jobs and pay. On this record, a jury reasonably could find that he never

earned more than $8 per hour.

Pittington next misapprehends Lumberjack’s burden. As he sees it, Lumberjack must

offer its own evidence—from its own witnesses—to meet its lack-of-mitigation burden. But the

rule describes a destination, not the path to take. Lumberjack was free to rely on Pittington’s

sworn testimony to carry its burden. His statements are record evidence upon which

Lumberjack, the jury, and the district court could rely. Pittington testified on direct examination

about three different jobs he held after being fired from Lumberjack. A jury could infer from the

existence of those jobs that “substantially equivalent positions” existed in Pigeon Forge.

Rasimas, 714 F.2d at 624. To the extent anyone has concerns about the clarity of that testimony,

it must be construed in favor of the verdict. See Ross v. Meyers, 883 F.2d 486, 488 (6th Cir.

1989). On top of that, Pittington admitted that he “wouldn’t say it’s hard to keep a good job” in

Pigeon Forge. R. 74 at 6–7. Lumberjack’s counsel featured this evidence in his closing

argument when he said that 35 weeks, the longest period of unemployment, was “a long time to

not get a job in Pigeon Forge.” R. 95 at 15–16. And Pittington described his job-seeking efforts

during one period of unemployment but conspicuously failed to describe his search during any

other periods—including the 35-week stretch. A reasonable jury could infer from his testimony

that he “failed to use reasonable care and diligence in seeking such positions.” Rasimas,

714 F.2d at 624. The best evidence on mitigation came from Pittington’s mouth to the jury’s

ears. The jury was free to listen to it and rely on it.

No. 17-5590 Pittington v. Great Smoky Mountain Lumberjack Feud Page 23

Pittington also fails to come to grips with the deferential standard of review for

challenging the amount of a jury award under Civil Rule 59. The district court may overturn a

jury award only if the number is “substantially less than unquestionably proved by the plaintiff’s

uncontradicted and undisputed evidence.” Anchor v. O’Toole, 94 F.3d 1014, 1021 (6th Cir.

1996). Appellate courts in turn review that decision for an abuse of discretion. Nat’l Ecological

Found. v. Alexander, 496 F.3d 466, 476 (6th Cir. 2007). Pittington did not meet that doubly

deferential standard of review.

The jury’s award also makes sense for what it is worth. The district court mentioned one

possible path to $10,000, noting that this figure corresponded to what he would have earned

between his firing and his first post-Lumberjack job. But there are many others. Try this one.

The jury could have looked at the sparse record (Pittington did not submit the paperwork he

received during discovery about his job and salary, presumably because it would have limited his

request for damages) and Pittington’s own testimony to use the $8 hourly wage when calculating

pre-mitigation backpay. Then it could have multiplied that number by 40 hours per week for

52 weeks per year over three years to establish a pre-mitigation amount of $49,920. Then it

could have relied on Pittington’s testimony to calculate and deduct post-Lumberjack interim

earnings from that gross amount. See NLRB v. Jackson Hosp. Corp., 557 F.3d 301, 307–08 (6th

Cir. 2009). Pittington often gave a range of dates and wages when describing his interim

employment and the jury could have based the interim pay calculations on the longest working

periods and highest rates he had estimated. See, e.g., R. 74 at 3 (noting that he left Perry Smith

“[m]aybe the end of August, beginning of September” of 2013). Then it could have calculated

that Pittington earned $7.25 per hour for six months’ work at Perry Smith Development, two

payments of $500 from Cyrus Family Theater, and $600 per week over nine months from Sablé

Equestrian Theater for a total interim income of $28,980. That would leave $20,940. Next the

jury could have relied on Pittington’s concession that it is not hard to get a job in Pigeon Forge

and that he could not explain how, or if, any job search efforts came up short, to decide that he

failed to mitigate damages during the 35-week stretch of unemployment. The jury could then

have subtracted $11,200 from the $20,940 to account for that failure to mitigate, which gets to a

rough (rounded up) award of $10,000.

No. 17-5590 Pittington v. Great Smoky Mountain Lumberjack Feud Page 24

The exact path to $10,000 of course does not matter. What matters is that the path,

indeed paths, exist. See Anchor, 94 F.3d at 1021. The evidence does not show that the jury

unquestionably erred.

Any other approach runs the risk of disrespecting the jury’s and district court’s ring-side

view of the case. We review transcripts for a living. They review witnesses and their credibility

for a living. We have a comparative advantage on law. They have comparative advantages on

facts. Pittington does not challenge a single jury instruction. He challenges only how the jury

and district court saw the evidence. No appellate court can recreate what the jury saw and the

trial judge witnessed, which is why the standard of review is so deferential and why it is so

unconventional to reverse jury trial awards.

It’s not just disrespect of juries and trial judges that should concern us. We also run the

risk of rewarding a strategic choice gone awry. Pittington chose not to add W-2s, pay stubs, tax

returns, or other typical evidence to the record. Perhaps he feared what those documents might

reveal about his pay, working hours, or relationship with Lumberjack—including matters that

might go to whether the underlying merits of his claim were even valid. Just the same, he chose

not to propose alternative methods by which the jury might have calculated an award. He just

asked for $40,000, which the majority agrees would have been too much. Perhaps he feared that

the jury would seize on any alternative that might result in a lower number. All we know for

sure, and all that matters, is that he chose to rely on spotty testimony and his lawyer’s skill to

make the case that $40,000 was the correct amount. By making that strategic choice, he forfeited

the opportunity to present additional evidence or argue in the alternative for different amounts.

See Estate of Quirk v. Comm’r of Internal Revenue, 928 F.2d 751, 758 (6th Cir. 1991).

The jury was free to review the evidence and decide what amount of damages he had

shown, including perhaps by compromising among competing ways of looking at the evidence

from the perspective of the individual jurors. If reasonable judges can see the same case

differently, it shouldn’t surprise anyone that reasonable jurors sometimes see the same evidence

differently. And we should respect efforts to resolve those differences so long as the final

outcome hews to the bounds of plausibility. As the Seventh Circuit has pointed out in a different

context, but one also focused on deference, “a decision must strike us as more than just maybe or

No. 17-5590 Pittington v. Great Smoky Mountain Lumberjack Feud Page 25

probably wrong; it must . . . strike us as wrong with the force of a five-week-old, unrefrigerated

dead fish.” Parts & Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988).

Perhaps that overstates matters, both the olfactory role in reviewing jury verdicts and the stench

needed to second guess a jury and trial judge. But you get the idea. Something must go

seriously awry before we will reverse a jury’s and district court’s unimpeded view of the

evidence and their assessment of it. No such problem happened here. I would respect the

verdict.

Pre-judgment interest. Our review of a district court’s decision about pre-judgment

interest also is deferential—and also rarely reversed. The court may award pre-judgment interest

“at its discretion in accordance with general equitable principles,” and we again review the

decision for an abuse of discretion. Rybarczyk v. TRW, Inc., 235 F.3d 975, 985 (6th Cir. 2000).

A district court may apply the post-judgment rate under 28 U.S.C. § 1961 if the court finds it

warranted after considering case-specific factors such as inflation, interest rates, the possibility of

a windfall payment, and the goal of making the plaintiff whole. See Schumacher v. AK Steel

Corp. Ret. Accumulation Pension Plan, 711 F.3d 675, 686 (6th Cir. 2013). The district court

chose the federal rate only after explicitly highlighting those factors in its opinion. R. 87 at 6

(“The court finds that plaintiff’s request for interest at the effective rate of 10% per annum,

which is permissible under Tennessee law, would be a windfall, particularly in light of the low

rates of interest and inflation over the relevant period.”); see supra at 18–20. This was not the

first district court to apply § 1961 to pre-judgment awards, and we have blessed that choice

before. See, e.g., Ford v. Uniroyal Pension Plan, 154 F.3d 613, 619 (6th Cir. 1998). No abuse

of discretion happened here either.

Making the case easier, Pittington forfeited any contrary argument. In what looks like

another strategic decision, Pittington argued only for the 10% rate when he moved to alter the

judgment. Nowhere in his briefs did he argue below that the district court should have used any

other method to calculate pre-judgment interest if the state rate seemed too high. He instead

limited his claim to the highest amount for which he could realistically hope: the state rate.

Generally speaking, district courts do not make reversible errors when they ignore arguments

never made.

No. 17-5590 Pittington v. Great Smoky Mountain Lumberjack Feud Page 26

In reaching a contrary conclusion, the court seizes on this language in Pittington’s lower

court briefs: “Regardless of the rate and method the Court chooses to utilize, Mr. Pittington

simply requests that the Court compensate him as completely as possible in light of the

circumstances of this case.” R. 83 at 6; supra at 18. That does not suffice to preserve this

argument or any other for appeal. A litigant does not preserve an argument by making a general

request for relief. Even that general idea, worse yet, made its first appearance in a reply brief,

which does not preserve an issue for appeal anyway. See Scottsdale Ins. Co. v. Flowers,

513 F.3d 546, 553 (6th Cir. 2008).

The court seeing it differently, I respectfully dissent.