United States District Court, S.D. Mississippi, Northern Division
JAMES D. SCHAEFFER PLAINTIFF
WARREN COUNTY, MISSISSIPPI and WARREN COUNTY BOARD OF SUPERVISORS DEFENDANTS
P. JORDAN III, UNITED STATES DISTRICT JUDGE
employment-retaliation case is before the Court on three
post-trial motions filed by Plaintiff James D. Schaeffer: (1)
Motion for New Trial and/or Reconsideration ; (2) Motion
for Reinstatement and Liquidated Damages ; and (3) Motion
for Attorney's Fees . For the reasons that follow,
the Court finds that neither a new trial nor reconsideration
are warranted but that fees should be awarded in part.
Facts and Procedural History
facts described in the Court's first post-trial Order
 are fully incorporated herein. In short, Plaintiff James
D. Schaeffer worked for Defendant Warren County, Mississippi,
as a ferry-boat pilot. But in 2013, Defendant Warren County
Board of Supervisors accepted a manager's recommendation
to terminate Schaeffer's employment. Aggrieved by that
decision, Schaeffer filed suit in this Court alleging
age-based discrimination under the Age Discrimination in
Employment Act (“ADEA”), deprivation of overtime
compensation under the Fair Labor Standards Act
(“FLSA”), and retaliation under the FLSA. Only
the FLSA retaliation claim survived summary judgment, and it
was tried to verdict. The jury found for Schaeffer and
awarded him $114, 847.53 in back pay.
the verdict, Defendants moved for Judgment as a Matter of Law
. The Court denied the motion as to liability but found
that Schaeffer failed to mitigate his damages and thus was
entitled to only a nominal award. Under Federal Rule of Civil
Procedure 50(c)(1), the Court also conditionally found that
it would order remittitur and deny a new trial on damages
if the Fifth Circuit were to vacate or reverse. The
Court ultimately entered judgment in favor of Schaeffer and
against Defendants in the amount of $1.
receiving the parties' briefs on the three pending
post-trial motions, the Court held an evidentiary hearing
regarding reinstatement and heard oral argument on all
Motion for New Trial and/or Reconsideration
Motion for New Trial Schaeffer wants a new trial on damages.
Citing the Seventh Amendment, he says in his initial
memorandum that a new trial is warranted because he
“does not accept the remitter [sic] offered by the
Court.” Pl.'s Mem.  at 3. But this misconstrues
the Court's previous Order . The Court did not order
remittitur but, instead, granted judgment as a matter of law
on damages because Schaeffer failed to mitigate. Once that
ruling was made, Rule 50(c)(1) required a “conditional[
]” ruling on Defendants' alternative motion for
remittitur or new trial. Defendants' remittitur argument
stated that if the Court found Schaeffer adequately
mitigated, then the jury still miscalculated the damages. The
jury's mistake in calculating damages is not disputed, so
the Court granted the alternative request for remittitur
under Rule 50(c)(1), in the event the appellate court
reverses the mitigation ruling.
explained all this in their response, so Schaeffer attacked
the ruling from a different angle in his reply. Now he says
the Court was in effect imposing a remittitur
because it “substituted its own evaluation of the
evidence” in reducing the front-pay award to nominal
damages. Pl.'s Mem.  at 2. This argument is untimely,
having been raised in reply.
timely raised, Schaeffer's new argument fails. Simply
put, there is a difference between lowering damages through
remittitur and finding that a plaintiff is not entitled to
damages. In the Fifth Circuit, a “damage award may be
[remitted] only upon a clear showing of excessiveness or upon
a showing that the jury was influenced by passion or
prejudice.” Eiland v. Westinghouse Elec.
Corp., 58 F.3d 176, 183 (5th Cir. 1995). “A
jury's award should not be disturbed unless it is
entirely disproportionate to the injury sustained.”
Seidman v. Am. Airlines, Inc., 923 F.2d 1134, 1141
(5th Cir. 1991) (citation and quotation marks omitted). But
under Rule 50, the Court asks whether a reasonable jury would
have had “a legally sufficient evidentiary basis”
to support its finding. Fed.R.Civ.P. 50(a)(1). In making that
determination, the Court accepts the facts in the light most
favorable to the verdict. Resolution Tr. Corp. v.
Cramer, 6 F.3d 1102, 1109 (5th Cir. 1993). Here, the
Court did not find that the back-pay award was excessive or
disproportionate, nor did it substitute its judgment for the
jury's. It instead applied the Rule 50 standards to
Defendants' affirmative defense and held that back pay
was precluded as a matter of law. Schaeffer is not entitled
to a new trial on these arguments.
Motion for Reconsideration
also asks the Court to reconsider its finding that Defendants
affirmatively proved a failure to mitigate damages.
Reconsideration “is an extraordinary remedy that should
be used sparingly.” Templet v. HydroChem Inc.,
367 F.3d 473, 479 (5th Cir. 2004). Accordingly, “a
motion to alter or amend the judgment under Rule 59(e) must
clearly establish either a manifest error of law or fact or
must present newly discovered evidence and cannot be used to
raise arguments which could, and should, have been made
before the judgment issued.” Rosenzweig v. Azurix
Corp., 332 F.3d 854, 863 (5th Cir. 2003) (citations and
internal quotation marks omitted). Absent new evidence or a
manifest error of law or fact, a Rule 59(e) motion should not
be used to merely “rehash arguments which have already
been raised before th[e] court.” Naquin v.
Elevating Boats, L.L.C., 817 F.3d 235, 240 n.4 (5th Cir.
2016) (internal quotation marks omitted).
fails to meet these standards. As detailed in the Court's
post-trial Order , plaintiffs “ha[ve] a duty to
mitigate [back-pay] damages by using reasonable diligence to
obtain substantially equivalent employment.” Migis
v. Pearle Vision, Inc., 135 F.3d 1041, 1045 (5th Cir.
1998) (citing Sellers v. Delgado Coll., 902 F.2d
1189, 1193 (5th Cir. 1990)). “Substantially equivalent
employment is that employment which affords virtually
identical promotional opportunities, compensation, job
responsibilities, working conditions, and status as the
position from which the . . . claimant has been
discriminatorily terminated.” Sellers, 902
F.2d at 1193 (citation and internal quotation marks omitted).
If he or she has not engaged in such an effort, then the
amount that could have been earned will reduce the back-pay
Burden of Proof The parties first dispute whether Defendants
hold the burden of showing there was substantially equivalent
employment available. In Sellers v. Delgado College,
the court held that employers need not make that showing if
the plaintiff failed to make a reasonable effort to find
work. 902 F.2d at 1193. And on this record, the Court agrees
with Defendants that Schaeffer failed to make a reasonable
effort. But the problem is that Sellers was decided
after Sparks v. Griffin, where another panel from
the Fifth Circuit concluded that the employer must show
availability even when the plaintiff fails to make reasonable
efforts to seek employment. 460 F.2d 433, 443 (5th Cir.
Sparks, the Fifth Circuit has followed
Sellers since it was decided. See, e.g.,
West v. Nabors Drilling USA, Inc., 330 F.3d 379, 393
(5th Cir. 2003). But district courts have questioned whether
it should. And for the most part, those courts have concluded
that Sparks controls under the rule of orderliness.
See Newcomb v. Corinth Sch. Dist., No.
1:12-CV-00204, 2015 WL 1505839, at *7 (N.D. Miss. Mar. 31,
2015), appeal dismissed, No. 15-60313 (5th Cir. June
5, 2015); Buckingham v. Booz Allen Hamilton, Inc.,
64 F.Supp.3d 981, 985 (S.D. Tex. 2014); Little v. Tech.
Specialty Prods. LLC, No. 4:11-CV-717, 2014 WL 1116895,
at *3 (E.D. Tex. Mar. 18, 2014); Paulissen v. MEI Techs.,
Inc., 942 F.Supp.2d 658, 677 (S.D. Tex. 2013); Starr
v. Oceaneering Int'l, Inc., No. 4:09-CV-0204, 2010
WL 644445, at *12 n.8 (S.D. Tex. Feb. 18, 2010). But see
Rybar v. Corp. Mgmt., Inc., No. 1:14-CV-242-KS-MTP, 2015
WL 12912342, at *2 (S.D.Miss. July 16, 2015) (acknowledging
rule of orderliness but concluding that court should follow
more recent Fifth Circuit opinions after Sellers).
point, the Fifth Circuit will likely resolve this dispute. If
it decides to continue following Sellers, then it
bolsters the mitigation ruling in this case. But until that
happens, this Court will follow the rule of orderliness and
apply the earlier-decided Sparks decision. See
Miles-Hickman v. David Powers Homes, Inc., 613 F.Supp.2d
872, 887 & n.22 (S.D. Tex. 2009) (Atlas, J.) (applying
Sparks under rule of orderliness).
then to the evidence, the parties previously briefed the
mitigation issue when Defendants raised it in their Rule
50(b) motion. And based on those arguments and the
evidence presented at trial, the Court found that a
reasonable jury would lack a legally sufficient evidentiary
basis to find for Schaeffer on Defendants' mitigation
detailed in the Court's first Order on this issue ,
Schaeffer immediately received but rejected two offers for
better-paying pilot positions in Warren County. One was from
Smith Towing, but the Court assumed that a jury question
existed as to whether that job was “substantially
equivalent” to the job Schaeffer lost. The other offer
came from Diamond Point Land and Barge Company
(“Diamond Point”). The only evidence explaining
the Diamond Point job came during Schaeffer's
cross-examination testimony, when he conceded that the offer
was for more money to do “virtually the same job”
as the one he lost. Tr. [63-1] at 82-83. The Court entered
judgment for Defendants on the mitigation issue.
now offers something old and something new in his motion for
reconsideration, pursuing three primary arguments. First,
Schaeffer again says the Diamond Point job was not
substantially equivalent because it was seasonal, but this
time he claims to have “new” evidence to support
his contention. See Pl.'s Mem.  at 3;
Pl.'s Reply  at 3. Schaefer has not shown that this
“new” evidence was previously unavailable. It is
therefore too late, even assuming Schaeffer's
characterization of that evidence is correct.
he faults the Court for failing to draw all reasonable
inferences in his favor. More specifically, Schaeffer says a
reasonable jury could have found that he simply misspoke when
he agreed that the jobs were “virtually the
same.” Pl.'s Mem.  at 4-5 (citing jury
instruction on witness credibility [63-2] at 3). But
Schaeffer never made this argument in his Rule 50(b)
response, so it is untimely. See Rosenzweig, 332
F.3d at 863 (holding that motions for reconsideration
“cannot be used to raise arguments which could, and
should, have been made before the judgment issued”).
Moreover, he never says that he actually did misspeak. Had
that been the case, he was free to correct his testimony
during re-direct examination, yet he said nothing. And as a
result, there is no record evidence from which a jury might
reasonably conclude that he misspoke when describing the job
offer he rejected. In fact, as addressed next,
Schaeffer's full testimony cuts against this delinquent
final argument requires more attention because it has evolved
over time. As noted, he argued in his initial Rule 50(b)
response that the two job offers failed to meet the
substantial-equivalence factors because the work was seasonal
and he had benefits with the County. Pl.'s Mem.  at
12. His motion for reconsideration looks to the
substantial-equivalence factors but in a different way.
There, he begins by quoting the jury instruction on
mitigation, and then says that while it may be
“undisputed that Defendant[s] provided evidence that
compensation and job responsibilities [were] virtually
identical, . . . Defendant[s] never offered evidence to show
there were [the] same promotional opportunities, working
conditions, and status.” Pl.'s Mem.  at 5.
Despite this argument, his reply reverts back to the seasonal
work issue. Pl.'s Reply  at 3-4.
these differences, the Court asked counsel during the hearing
to better explain his position and whether he was equating
the substantial-equivalence factors to essential elements.
After some vacillation, counsel eventually noted that there
is no clear answer in the Fifth Circuit whether the factors
for substantial equivalence are essential elements of the
mitigation defense. Accordingly, his argument was that the
jury instructions state what is required and a reasonable
jury could conclude that Defendants did not meet their
initial point, Schaeffer never mentioned this jury
instruction in his Rule 50(b) response, so it comes too late
in his motion for reconsideration. See Rosenzweig,
332 F.3d at 863. Likewise, the post-judgment argument that
Defendants failed to offer evidence regarding
“promotional opportunities, working conditions, and
status, ” Pl.'s Mem.  at 5, was not apparent
from the Rule 50(b) response.
the jury instruction tracked Fifth Circuit law. See
Sellers, 902 F.2d at 1193 (listing the factors for
substantial equivalence). And even assuming Schaeffer is not
now making new arguments regarding those factors, Defendants
met their burden as a matter of law. To begin, Schaeffer now
concedes two of the factors, acknowledging that it is
“undisputed that Defendant[s] provided evidence that
compensation and job responsibilities [were] virtually
identical.” Pl.'s Mem.  at 5.
the other factors, Schaeffer does not acknowledge the full
scope of his testimony regarding the Diamond Point job.
First, he testified that the Diamond Point job paid a good
bit more than his County job. Tr. [63-1] at 35, 82-83.
Second, Schaeffer agreed that Diamond Point “offered
[him] virtually the same job” as the one he lost,
id. at 82, and that Diamond Point “operate[s]
a ferry carrying hunters and loggers back and forth across
the river just like Warren County does, ” id.
at 83. In other words, he would be doing the exact same job
but for more money. Absent record evidence of any
distinguishing facts, Schaeffer's own testimony
conclusively establishes that the responsibilities, working
conditions, and status were the same- assuming these factors
are tantamount to essential elements.
leaves only the promotional-opportunities factor. Admittedly,
there was no direct testimony comparing the promotional
opportunities for the two jobs, but Schaeffer testified that
he worked his entire seven years for the County as a pilot,
id. at 5-6, which is essentially the same job he had
done for various employers since 1992, id. at 3. And
it was also the job Diamond Point offered him. Id.
at 82. On this record, the jury lacked a sufficient
evidentiary basis to say the jobs were not substantially
equivalent based on differences in promotional opportunities.
conclude, “claimants are not required to take lesser or
dissimilar work [or] a demotion or a demeaning
position.” Floca v. Homcare Health Servs.,
Inc., 845 F.2d 108, 112 (5th Cir. 1988) (citation
omitted). The Diamond Point job was none of those things. And
it is hard to imagine how the duty to mitigate would ever
apply if not when the new position pays more money for
“virtually the same” job. Tr. [63-1] at 82-83.
While Schaeffer now claims there is evidence to the contrary,
the argument ...