Seyfarth Synopsis: The Sixth Circuit ordered a new trial in a Title VII case where plaintiff presented evidence he was entitled to back pay, the employer presented no evidence to the contrary, and the jury only awarded a small percentage of plaintiff’s ask. In ordering the new trail, the Sixth Circuit noted that the jury cannot “infer” the plaintiff was entitled to less because it is the employer’s burden to show plaintiff did not seek out new employment after termination. Pittington v Great Smoky Mountain, No. 17-5590 (6th Cir. Jan. 24, 2018).

Plaintiff was employed as a theater clerk at Lumberjack, a company that put on Lumberjack dinner shows, for five months before he was terminated for supporting his wife’s sexual harassment lawsuit against the same company. Before he was terminated, plaintiff alleged he was demoted, received reduced hours, and was forced to work in a shack with no heat and no chair, which he required for his medical condition. Plaintiff sued, alleging Lumberjack’s actions were a result of his disability and in retaliation for his support of his wife’s lawsuit against them.

At trial, plaintiff showed evidence of his earnings and subsequent employment history, and requested $40,632.50 in back pay. Generally, back pay in Title VII is determined by subtracting the amount the plaintiff actually earned while being discriminated against from the amount the plaintiff would have earned had no discrimination occurred. The jury found Lumberjack violated Title VII and the Tennessee Human Rights Act, but dismissed the plaintiff’s ADA claim on a directed a verdict for Lumberjack.

The jury only awarded back pay, to the tune of $10,000. The court refused plaintiff’s request for front pay, an increased back pay award, or a new trial on damages, finding that the jury award was reasonable because plaintiff failed to adequately explain periods of his unemployment. Plaintiff appealed. A divided Sixth Circuit panel reversed, finding that plaintiffs who prove they were fired in violation of Title VII are presumptively entitled to back pay for the total they would have received if they had not been terminated. In other words, it’s on the employer, not the employee to show a worker did not mitigate his losses once he was terminated. The court awarded a new trial on damages.

The Sixth Circuit noted that Lumberjack offered no evidence to show that substantially equivalent positions were available and that plaintiff failed to use reasonable care and diligence in seeking out such positions. The plaintiff was not legally obligated to convince the jury that he sought out and secured comparable employment after termination–instead, it was Lumberjack’s job to show that he didn’t. The court denied Lumberjack’s argument that the jury could “infer” that plaintiff did not mitigate his damages. The court found that where, as here, plaintiff offered evidence of his post-termination and pre-termination wages, the jury can take that information into account, but that no reasonable jury could have taken plaintiff’s evidenced of $40,000 back pay and slash it to $10,000.

This is a good reminder for all employers in litigation (and their counsel) that, although plaintiffs must mitigate their losses after they’re terminated, it’s ultimately on the employer disprove any evidence a plaintiff does present and establish that the plaintiff was not diligent in looking for new employment. If employers are not prepared to present evidence that a plaintiff failed to mitigate his damages, they risk the court finding any jury award less than plaintiff’s requested back pay to be unreasonable (and unsupported by evidence!).