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Schaeffer v. Warren County

United States District Court, S.D. Mississippi, Northern Division

November 27, 2017




         This 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 [68]; (2) Motion for Reinstatement and Liquidated Damages [70]; and (3) Motion for Attorney's Fees [72]. 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.

         I. Facts and Procedural History

         The facts described in the Court's first post-trial Order [66] 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.

         Following the verdict, Defendants moved for Judgment as a Matter of Law [61]. 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.

         After 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 issues.

         II. Motion for New Trial and/or Reconsideration

         A. 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. [74] at 3. But this misconstrues the Court's previous Order [66]. 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.

         Defendants 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. [79] at 2. This argument is untimely, having been raised in reply.[1]

         Even if 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.

         B. Motion for Reconsideration

         Schaeffer 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).

         Schaeffer fails to meet these standards. As detailed in the Court's post-trial Order [66], 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 amount. Id.

         1. The 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. 1972).

         Despite 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).

         At some 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).[2]

         2. The Merits

         Turning 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 defense.

         As detailed in the Court's first Order on this issue [66], 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.

         Schaeffer 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. [74] at 3; Pl.'s Reply [79] 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.

         Next, 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. [74] 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 argument.

         Schaeffer's 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. [64] 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. [74] at 5. Despite this argument, his reply reverts back to the seasonal work issue. Pl.'s Reply [79] at 3-4.

         Given 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 burden.

         As an 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. [74] at 5, was not apparent from the Rule 50(b) response.

         Nevertheless, 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. [74] at 5.[3]

         As for 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.

         That 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.

         To 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 ...

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