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A ferry-boat pilot who was fired after complaining that he was owed $49.65 in overtime pay was not entitled to a jury back-pay award of $114,848 but was entitled to $1 in nominal damages plus $8,961 in legal fees when he refused a job offer after the discharge, the U.S. District Court for the Southern District of Mississippi ruled.
An employee for Warren County, Miss., who worked as a ferry-boat pilot for the county for seven years was fired in 2013 at the recommendation of a manager after making a complaint that he was owed $49.65 in unpaid overtime. In response, the employee filed suit against the Warren County Board of Supervisors under the Age Discrimination in Employment Act and under the Fair Labor Standards Act (FLSA) for deprivation of overtime compensation and retaliation. Only the FLSA retaliation claim survived summary judgment and was tried before a jury. The jury found in favor of the employee and awarded him $114,848 in back pay.
[SHRM members-only toolkit: Determining Overtime Eligibility in the United States]
Following the verdict, the defendants moved for judgment in their favor as a matter of law notwithstanding the jury's verdict. The court denied the motion as to liability but found that the employee failed to mitigate his damages and thus was entitled to only a nominal award of $1. The employee sought reinstatement to employment by Warren County and requested a new trial on damages or, in the alternative, reconsideration of the court's ruling. While the employee recognized that the jury overcompensated him by failing to reduce his back-pay award by amounts he otherwise received since his discharge, which was nearly $40,000, the employee claimed that the court substituted its judgment for that of the jury in reducing his damages to $1.
The court considered the evidence regarding damages for retaliatory termination. Immediately after his termination, the employee received but rejected two offers for better-paying positions in Warren County. One was from Smith Towing, but it was unclear whether the job was "substantially equivalent" to the job he lost. The other offer came from Diamond Point Land and Barge Co. The only evidence concerning the Diamond Point job was elicited from the employee on cross-examination by the defendants at trial. In that testimony, the employee conceded that the job offer was for more money to do "virtually the same job" as the one he lost. The employee did not further clarify that admission when he was questioned by his own counsel.
In post-trial briefs, the employee claimed that the Diamond Point job was inferior to his job with Warren County because the work was seasonal, did not have the same promotional opportunities and provided less in terms of benefits. However, this evidence was never presented by the employee during the trial. In fact, his comparison of the two jobs at trial only showed that the Diamond Point job offered more money for the same work in ferrying passengers across the river.
The employee further requested other available remedies for FLSA retaliation in his post-trial motions. He requested reinstatement to his prior position or, in the alternative, an award of front pay until he obtained a comparable position. The court found that neither remedy was available under the circumstances.
Regarding reinstatement, the court found that significant animosity existed between the employee and Warren County such that it would not be feasible to require his reinstatement. In fact, one supervisor testified that he would vote to close the ferry service rather than rehire the employee to his position. Regarding back pay, the court found that the employee failed to ask for that remedy at trial. His failure to mitigate damages barred him from receiving an award of front pay.
With regard to attorney fees, the court found that the employee was entitled to some recovery of his fees based on the jury verdict in his favor. However, the court reduced the amount he could recover by 80 percent based on his near total lack of tangible success. This resulted in the court reducing his attorney fees award from $44,806 to $8,961.
Schaeffer v. Warren County Board of Supervisors, S.D. Miss., No. 3:14-CV-945-DPJ-FKB (Nov. 27, 2017).
Professional Pointer: The remedies for retaliatory discharge include back pay, reinstatement, front pay and attorney fees. However, employers can use the defense of failure to mitigate as a powerful tool to challenge these remedies. If an employer can show that the employee rejected better-paying employment opportunities since discharge, the employee may lose entitlement to back pay, front pay, and even most of his or her attorney fees.
Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.
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