Hicks v. Tuscaloosa, City of

Filing 86

MEMORANDUM OPINION. Signed by Magistrate Judge T Michael Putnam on 3/25/2016. (AVC)

FILED
2016 Mar-28 AM 10:04
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION

STEPHANIE HICKS,
Plaintiff,
v.
CITY OF TUSCALOOSA,
Defendant.

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Case No. 7:13-cv-02063-TMP

MEMORANDUM OPINION
On February 19, 2016, the jury returned a verdict in this case in the total
amount of $374,000.00, on findings that the defendant had discriminated against
the plaintiff on the basis of her pregnancy-related medical conditions and had
retaliated against her for taking twelve weeks of leave under the Family and
Medical Leave Act (“FMLA”).

(Doc. 78).

The jury’s answers regarding

compensatory damages raised questions regarding a possible double recovery or
excessive recovery, to which the defendant objected at the time the verdict was
returned. For the reasons explained below, the court agrees that the judgment is
due to be reduced to eliminate a double recovery by the plaintiff.

I. Procedural History
First it is important to understand the procedural history of the case and
claims submitted to the jury at trial. Plaintiff alleged and the jury found 1 that she
was employed as a police officer by the defendant, assigned to the West Alabama
Narcotics Squad (“WANS”), a multi-jurisdiction police unit formed to combat
illegal drug trafficking.2 After working a temporary assignment with WANS,
plaintiff applied for and was accepted for assignment to the unit in November
2011. In January 2012, she discovered she was pregnant and notified the WANS
commander that she would be taking FMLA leave later in the year. From August
to November 2012, plaintiff was on FMLA leave for the birth of her child. She
returned to work on WANS in late November 2012, at which time she informed
her commander that she was continuing to breastfeed the child. The evidence also
shows that, although unrecognized by her at the time, she was suffering from postpartum depression. Upon her first day back at WANS, she was given a written
counseling for two violations of WANS policies and procedures. Within eight
working days of her return to work, the commander of the unit caused her to be

1

All references to the evidence and jury findings herein take the view of the evidence most
favorable to the plaintiff supporting the jury’s verdict.
2

Often referred to as WANS, the West Alabama Narcotics Squad was made up of officers from
the Tuscaloosa Police Department, the Tuscaloosa County Sheriff’s Department, the Northport
Police Department, and the University of Alabama Police Department. Because the Tuscaloosa
Police Department contributed the most officers and resources to WANS, the commander of the
unit was a Tuscaloosa police captain.
2

removed from WANS and reassigned to patrol duties in the Tuscaloosa Police
Department. As a result of the reassignment, plaintiff no longer received the
supplemental “investigator’s pay,” in the amount of $84.88 per month, over and
above her regular patrol-officer pay, which she received while assigned to
WANS. 3 The jury found this reassignment to be both discriminatory, in violation
of the Pregnancy Discrimination Act, and retaliatory under the FMLA.

See

Special Interrogatories, Doc. 78.
From early December 2012 to January 4, 2013, plaintiff was granted leave to
deal with her post-partum depression, which was diagnosed after her transfer from
WANS to patrol duties. On January 4, 2013, she met with the chief of the
Tuscaloosa Police Department and the major in charge of patrol duties to discuss
accommodations for her breastfeeding. She expressed concerns about wearing a
snug-fitting ballistics vest,4 which her doctor believed could staunch her milk
production and perhaps cause an infection, and the availability of opportunities to
pump breast milk during her patrol shift.

When agreement was not reached

3

Plaintiff also lost the use of a city vehicle assigned to her while she worked on the WANS unit,
but no evidence of the monetary value of this use of a vehicle was presented at trial. The jury
was given no evidence from which to determine the monetary value that could be assigned to this
employment benefit.
4

A ballistics vest is a bullet-proof and stab-proof vest worn by patrol officers for protection.
The vest is tailored to each officer and snug fitting to assure coverage of the officer’s vital
organs. Tuscaloosa Police Department regulations required patrol officers to wear a ballistics
vest, unless excused by the officer’s physician. As a matter of practice, all officers on actual
patrol (as distinct from those given desk assignments) wore vests for safety reasons.
3

concerning accommodations,5 plaintiff resigned her position as a patrol officer, and
the jury found this was a discriminatory constructive discharge in violation of the
Pregnancy Discrimination Act.6

5

The constructive-discharge claim was not based simply on the City’s failure to “accommodate”
the plaintiff’s wish to breastfeed. Rather, the evidence was undisputed that the Tuscaloosa
Police Department had an “Alternative Duty Policy,” under which police officers with temporary
medical conditions could be assigned temporarily to a desk job while recovering from the
medical condition. Plaintiff argued that she was denied this opportunity while breastfeeding and
therefore was treated worse than other similarly-situated officers with non-pregnancy-related
medical conditions. Under the facts of this case, the court was not required to determine whether
the Pregnancy Discrimination Act includes a duty to provide accommodations for breastfeeding
because the theory of the claim was that plaintiff was treated worse than similarly situated
officers with respect to her pregnancy-related medical condition.
6

It is important to note that the plaintiff’s constructive discharge claim was based entirely on
alleged discrimination due to a pregnancy-related medical condition, not FMLA retaliation. The
plaintiff’s position statement in the final pretrial order (Doc. 53) related to her constructive
discharge claim stated:
(4) The Plaintiff has established a prima facie case of constructive discharge. The
Defendant created work conditions that are so “intolerable that a reasonable
person” would have felt “forced into involuntary resignation.” The plaintiff was
breastfeeding and her doctor provided a note indicating wearing a vest could
cause infection. After being assigned to patrol, Hicks asked to be assigned to a
desk job while she was breastfeeding. Other female officers were placed in a
desk job while breast feeding. No other females have worn a vest while breast
feeding. The Defendant told Hicks they would accommodate her, but then stated
she could either patrol without a vest or wear an ill-fitting vest. Hicks was placed
in a position where she was forced to choose between breastfeeding her child and
protecting herself on the job. The work environment was hostile due to Hicks’
inability to work safely under the limitations imposed by the TPD. All the
testimony in this case acknowledged the danger for a patrol officer to work
without of a vest and that no one knew of an officer who did so. The City’s
suggestion that Hicks patrol without a vest, or wear an ill-fitting vest exposed
Hicks to a life-and-death risk that other patrol officers were not required to face
simply because she wanted to breastfeed her child. When an employer forces the
officer to choose between breastfeeding and her own safety, a reasonable person
may feel compelled to resign.
See Doc. 53, pp. 10-11. This is the theory of the constructive discharge presented and argued to
the jury and on which the court instructed the jury. See Doc. 83, p. 9. Thus, this claim was not
4

Based on the findings that plaintiff had proven that her transfer to WANS
violated both the Pregnancy Discrimination Act and the FMLA, and that the
constructive discharge from her position as a patrol officer violated the Pregnancy
Discrimination Act, the jury award her damages. First, the jury awarded the
plaintiff $50,000.00 for the discriminatory transfer from WANS to patrol in
violation of the Pregnancy Discrimination Act. That award included both loss of
income and benefits (i.e., investigator’s pay, pension contributions, etc.) and
emotional-distress damages.7 Because she remained employed as a patrol officer
after the transfer, these damages could not have involved loss of her basic
compensation as a patrol officer. Next, the jury awarded her $108,000.00 for the
constructive discharge in violation of the Pregnancy Discrimination Act. That
award included the loss of her basic income and benefits as a patrol officer from

based on FMLA retaliation. The FMLA retaliation claim related only to her transfer from
WANS to patrol. See Doc. 83, pp. 13-15.
7

Although the jury’s answers to the Special Interrogatories do not include a breakdown of the
elements of damages found by the jury, the jury’s verdict is considered along with the court’s
instructions. Myers v. Central Florida Investments, Inc., 592 F.3d 1201, 1217 (11th Cir. 2010)
(“The jury verdict is considered alongside the jury instructions…”). Indeed, there is a
presumption that the verdict is consistent with the jury’s instructions. United States v. Brown,
983 F.2d 201, 203 (11th Cir. 1993) (“The presumption that juries follow their instructions is
necessary to any meaningful search for the reason behind a jury verdict.”). As to the Pregnancy
Discrimination Act claims, the court instructed the jury to consider as damages lost net pay and
benefits as well as emotional distress. As to the FMLA-related claims, the court instructed the
jury that the proper elements of damages were limited to net lost pay and benefits (but not
emotional distress) and statutory liquidated damages. In assessing the maximum amounts the
jury could have awarded plaintiff under the most favorable view of the evidence in the case,
there is nothing to indicate that the jury based their damages award on anything other than these
elements.
5

the date of the discharge (January 4, 2013) to the date of the verdict, plus
emotional-distress damages. Third, the jury awarded plaintiff $108,000.00 for the
FMLA-retaliatory transfer from WANS to patrol duties, and, finally, the jury
awarded a like amount, $108,000.00, in liquidated damages under the FMLA.
It is these final two awards to which the defendant objects on the ground that
they include a double recovery for the same lost income and benefits awarded in
the $50,000.00 award made under the Pregnancy Discrimination Act. Because the
court also had concerns that there was a double recovery, the court asked the
parties to brief this question.

II. Double or Excessive Recovery
The court agrees that the jury award of both $50,000.00 for pregnancy
discrimination and $108,000.00 for FMLA retaliation with respect to the plaintiff’s
transfer from WANS to patrol involves a double recovery. A double recovery
occurs when the damages awarded on two or more claims stemming from the same
conduct exceeds the actual damages proven by the plaintiff at trial.

See

Democratic Republic of the Congo v. Air Capital Group, LLC, 614 F. App'x 460,
474 (11th Cir. 2015). Because these two awards stem from the same conduct
(plaintiff’s involuntary transfer off the WANS unit), the court is required to
determine whether either of them meets or exceeds plaintiff’s actual damages for
6

that wrongful conduct. For the reasons explained below, the court finds that the
$50,000.00 award represents the maximum actual damages plaintiff suffered due to
her involuntary transfer from WANS.
The court must determine what elements of actual damages underlie these
two awards. First, it is apparent that both awards compensated plaintiff for the
same loss of pay and benefits she suffered due to the transfer. In addressing these
two claims, the court instructed the jury to consider as part of her damages the net
lost pay and benefits caused by the discriminatory/retaliatory transfer. Under the
evidence in this case, the maximum amount of lost wages and benefits under either
theory was the loss of “investigator’s pay” of $84.88 per month from the date of
the transfer (December 7, 2012) to the date of the verdict (February 19, 2016).8
Counting that time period as 39 months, 9 plaintiff’s maximum lost wage and
benefits caused by the transfer was $3,310.32.

8

Plaintiff may quibble that she also lost the use of a city-owned vehicle and the benefit of not
working night shifts and weekends. But as to the loss of the use of a vehicle, plaintiff offered no
evidence at all as to the monetary value of that employment benefit, so the jury had no
evidentiary basis on which to calculate a monetary award. As for night shifts and weekend work,
the only evidence was that, upon her transfer, plaintiff was assigned to the day shift on the
Riverwalk beat. Any claim that she might be required to work the night shift is entirely
speculative. Also, there was no evidence regarding any pay differentials between working night
or weekend shifts and weekday shifts.
9

The court uses 39 months because this encompasses all of December 2012 as well as all of
February 2016, and the intervening months, in order to capture the maximum amount of wages
and benefits lost due to the transfer, to the date of the verdict. This gives plaintiff the best
possible view of the evidence the jury could have relied upon for their verdict.
7

Having determined that the only evidence before the jury on which to
calculate lost pay and benefits from the transfer was the testimony regarding the
“investigator’s pay” differential between being assigned to WANS and working as
a patrol officer, the court must examine what other kinds of damages plaintiff may
have been entitled to recover under these respective theories. Under the Pregnancy
Discrimination Act, it is undisputed that, in addition to lost pay and benefits,
plaintiff was entitled to recover for emotional distress and mental anguish. That is
not true with respect to her FMLA-retaliation claim. The law is very clear that for
violations of the FMLA, the only actual damages10 recoverable are lost pay and
benefits 11; there is no entitlement to recover for emotional or mental anguish. “The
Plaintiff correctly points out that recovery of non-pecuniary losses, such as
emotional pain, suffering, mental anguish, loss of enjoyment of work and
humiliation are not provided for under the Family and Medical Leave Act, 29
U.S.C. § 2617(a).” Johnson v. Potter, 732 F. Supp. 2d 1264, 1285 (M.D. Fla.
2010); Harley v. Health Center of Coconut Creek, Inc., 518 F. Supp. 2d 1364,
1370-71 (S.D. Fla. 2007); see also McAnnally v. Wyn South Molded Products, 912
F. Supp. 512, 513 (N.D. Ala. 1996); Godwin v. Rheem Mfg. Co., 15 F. Supp. 2d
10

The court will discuss interest and liquidated damages under the FMLA below.

11

There is an additional damages provision that applies “in a case in which wages, salary,
employment benefits, or other compensation have not been denied or lost to the employee.” 29
U.S.C. § 2617(a)(1)(A). Because plaintiff in this case did lose employment benefits, this
provision does not apply.
8

1197, 1209 (M.D. Ala. 1998). “Under the FMLA, a plaintiff may recover (i)
damages due to lost compensation, (ii) interest on that amount, and (iii) liquidated
damages equal to (i) and (ii). See 29 U.S.C. 2617(a)(1).” Nero v. Industrial
Molding Corp., 167 F.3d 921, 925 (5th Cir. 1999). At least obliquely, the Eleventh
Circuit recognized this proposition when it affirmed and adopted the Memorandum
Opinion of Judge Nelson in Graham v. State Farm Mutual Insurance Co., 193 F.3d
1274 (11th Cir. 1999), in which Judge Nelson wrote, “the FMLA does not allow
recovery for mental distress or loss of job security.” Id. at 1284. Likewise, the
Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits have all held that
the FMLA does not allow an award of emotional-distress damages.

See

Montgomery v. Maryland, 72 F. App'x 17, 19 (4th Cir. 2003); Nero, supra;
Brumbalough v. Camelot Care Centers, Inc., 427 F.3d 996, 1008 (6th Cir. 2005);
Cianci v. Pettibone Corp., 152 F.3d 723, 728–29 (7th Cir.1998); Rodgers v. City of
Des Moines, 435 F.3d 904, 909 (8th Cir. 2006); Farrell v. Tri-City Metro. Transp.
Dist. of Oregon, 530 F.3d 1023, 1025 (9th Cir. 2008); Walker v. United Parcel
Serv., Inc., 240 F.3d 1268, 1277 (10th Cir. 2001).
It is true that plaintiff also is entitled to recover interest on the monetary
damages she claimed under the FMLA. Although the FMLA does not specify
what the term “prevailing rate” of interest means, 28 U.S.C. § 1961 defines the
interest rate to be used to calculate post-judgment interest as “a rate equal to the
9

weekly average 1-year constant maturity Treasury yield, as published by the Board
of Governors of the Federal Reserve System.” See also Harley v. Health Center of
Coconut Creek, Inc., 2008 WL 155045, at *3 (S.D. Fla. Jan. 10, 2008). Between
December 2012 and February 2016, this rate ranged from a low of 0.11% per
annum to, more recently, 0.58% per annum. Using these rates of interest, the
interest on plaintiff’s lost wages of $3,310.32 amounts to approximately $9.60.12
Adding this interest to the maximum potential lost wage attributable to the
discriminatory/retaliatory transfer, plaintiff’s total maximum recovery (not yet
counting liquidated damages) under the FMLA was $3,319.92, far short of the
$108,000.00 the jury awarded. The jury simply had no legal or evidentiary basis
for awarding more than $3,319.92 (plus liquidated damages, discussed below) for
that claim.
This calculation shows that the award of $50,000.00 the jury returned for
damages under the Pregnancy Discrimination Act claim encompasses the
maximum award of actual damages plaintiff was entitled to recover due to the
wrongful transfer. That award included all of her lost pay and benefits (plus
interest) in the amount of $3,319.92, plus the emotional-distress damages she could
12

The court confesses that, having chosen to pursue a law degree rather than an accounting
degree, this calculation may not be accurate. It is close enough, however, to demonstrate that
interest on the lost monetary wages cannot account for over $104,000.00 in additional damages
awarded by the jury on plaintiff’s FMLA claim. The $50,000.00 award more than adequately
accounts for interest on the lost wages, as well as the emotional-distress damages awardable
under the Title VII Pregnancy Discrimination Act.
10

recover under the Pregnancy Discrimination Act, but to which she was not entitled
under the FMLA. Because that award contained everything plaintiff was entitled
to recover (except for liquidated damages, which are discussed below) under the
FMLA and the Pregnancy Discrimination Act, the award of $50,000.00 is the
amount to be used for the judgment against the defendant on both claims premised
on the wrongful transfer from WANS to patrol duties.
In addition to claiming damages for a wrongful transfer, plaintiff also
alleged, and the jury found, that she suffered a constructive discharge about a
month later when the City refused to treat her breastfeeding the same as similarly
situated officers with non-pregnancy related medical conditions. This constructive
discharge claim was premised entirely on the Pregnancy Discrimination Act, not
the FMLA, as reflected in the final pretrial order. The award of $108,000.00 for
this claim is legally supported by adequate evidence that plaintiff lost three years
of basic patrol-officer pay and benefits from the time of the discharge on
January 4, 2013, to the verdict on February 19, 2016. This amount also will be
included in the judgment against the defendant.
As already described, the $108,000.00 awarded for FMLA retaliation is
legally unsupported by any evidence in the record. The court demonstrated above
that, based on the admissible evidence before the jury, the maximum amount the
jury could have awarded for FMLA retaliation was plaintiff’s lost “investigator’s
11

pay” from December 7, 2012, to February 19, 2016, plus interest, in the total
amount of $3,319.92. Because this same amount necessarily was found by the jury
to be plaintiff’s lost wages resulting from the violation of the Pregnancy
Discrimination Act and included in the $50,000.00 award on that claim, she is not
entitled to recover it twice as a separate award under the FMLA.
The plaintiff argues in her post-verdict brief that the $108,000.00 award for
the FMLA-retaliation claim consists of plaintiff’s lost pay of $44,000.00 per year
less amounts she made as a fitness instructor after leaving the police department.
(See Doc. 82, p. 8). But this misconstrues the evidence in the case. As noted
above, the FMLA claim involved only the retaliatory transfer from WANS to
patrol; the constructive discharge was entirely unrelated to her FMLA claim, being
based entirely on a pregnancy-discrimination claim. Therefore, the only damages
attributable to the retaliatory transfer was the difference in pay between what she
made as a WANS investigator and as a regular patrol officer. Simply put, she did
not lose her basic pay as a patrol officer due to the FMLA retaliation. What she
lost was the pay differential reflected in the “investigator’s pay,” and that totals
only $3,310.32 (plus interest) over the three years between the transfer and the
verdict.
Although the amount of lost wages and benefits under the FMLA is
encompassed

within

the

$50,000.00
12

damages

awarded

for

pregnancy

discrimination, the amount was relevant to the plaintiff’s entitlement to liquidated
damages. Simply because she suffered the same amount of lost wages and benefits
under both the FMLA and the Pregnancy Discrimination Act, and has recovered
that lost pay under her pregnancy discrimination claim, does not mean she is not
entitled to liquidated damages under 29 U.S.C. § 2617(a)(1). Thus, the court
submitted to the jury the question of how much wages and benefits plaintiff lost (as
distinct from total damages including emotional distress) in order to determine her
claim for potential liquidated damages under FMLA. The jury apparently became
confused, however, because returning an award of $108,000.00 for FMLA lost
wages was simply unsupported by any view of the evidence.

Because the

maximum amount of lost wage-and-benefits damages, plus interest, she could
recover under the evidence presented with respect to the FMLA claim was
$3,319.92, she is entitled to a like amount in liquidated damages, but not more.
The jury’s finding that plaintiff is entitled to $108,000.00 in liquidated
damages is neither binding on the court nor supported by the evidence at trial.
Liquidated damages are presumptively awarded by the court upon a finding that
the plaintiff has suffered a compensable loss of wages and benefits under the
FMLA. The court has the discretion to deny liquidated damages if the employer
demonstrates both that it acted in good faith and had a reasonable basis for
believing its conduct did not violate the FMLA. See Harley v. Health Center of
13

Coconut Creek, Inc., 2008 WL 155045, at *3 (S.D. Fla. Jan. 10, 2008). The court
finds that the City of Tuscaloosa has not shown that it acted in good faith with
respect to plaintiff’s retaliatory transfer from WANS to patrol, and therefore,
plaintiff is entitled to liquidated damages of $3,319.92 as part of the judgment
against the defendant.

III. Remittitur and Entry of Judgment
Plaintiff argues that the proper procedure for the court to correct a double
recovery or a legally unsupported award of damages is to give the plaintiff the
option of accepting a remittitur of the judgment or having a new trial. (See
Doc. 82). Relying on Johansen v. Combustion Engineering, Inc., 170 F.3d 1320
(11th Cir. 1999), she asserts that the court has no authority to reduce an excessive
verdict because doing so violates the parties’ Seventh Amendment right to trial by
jury in a civil case. Although the court agrees that it may not set aside or reduce a
verdict “merely because the judge might have awarded a different amount of
damages” (Doc. 82, p. 4), that is not the situation presented here. In this case, as
demonstrated above, the jury’s award of $108,000.00 for an FMLA-retaliatory
transfer from WANS to patrol duties was both a double recovery of all lost wages
attributable to the transfer, as well as legally unsupported by any evidence for any
amount greater than $3,310.32. Where the amount of damages awarded by the
14

jury includes amounts for which there is no legal basis, the court may simply
reduce the judgment to the correct amount legally supported by the evidence.
First, it must be understood what this case is not. This is not a case where
the court simply disagrees with the jury’s resolution of the facts relevant to the
award of damages. Under the Seventh Amendment, the parties are entitled to have
the jury resolve questions of fact and credibility presented by the evidence. But
this does not mean that the jury can go beyond the evidence and make an award
that is not legally supported by evidence in the record. The Eleventh Circuit has
explained the rule, saying:

As a general rule, “a remittitur order reducing a jury's award to the
outer limit of the proof is the appropriate remedy where the jury's
damage award exceeds the amount established by the evidence.”
Goldstein v. Manhattan Indus., Inc., 758 F.2d 1435, 1448 (11th Cir.
1985); see also Frederick v. Kirby Tankships, Inc., 205 F.3d 1277,
1284 (11th Cir. 2000) (“The rule in this circuit states that where a
jury's determination of liability was not the product of undue passion
or prejudice, we can order a remittitur to the maximum award the
evidence can support.”).

Rodriguez v. Farm Stores Grocery, Inc., 518 F.3d 1259, 1266 (11th Cir. 2008).
Rodriguez was a case under the Fair Labor Standards Act in which store managers
sued to collect unpaid overtime. The case was tried to a jury and the jury returned

15

an award at least twice the amount the evidence at trial supported, even viewing the
evidence most favorably to the prevailing plaintiffs. 13 The court then explained:

We recognize, of course, that the jury had to make approximations
and estimates in order to arrive at a damages verdict because Farm
Stores did not maintain payroll records documenting the number of
hours each store manager worked. The jury was required, however, to
operate within the bounds of the evidence presented at trial and to
calculate damages using the formula they were instructed to apply.
Each store manager testified to the average number of hours he
worked each week and to his salary; sometimes they testified to
ranges, such as 52 to 60 hours per week. In that and other ways the
evidence gave the jury some flexibility in coming up with a dollar
amount of damages for each store manager. Unfortunately, the jury's
damages verdict ended up well outside the boundaries of the evidence.
Whether the error resulted from disregarding the evidence, a
mathematical mistake, confusion, or some other reason, it is still error.
As our predecessor Court observed, we cannot “permit damage
speculation where the formula for calculation is articulable and
definable. Flexibility beyond the range of the evidence will not be
tolerated.” Jamison Co. v. Westvaco Corp., 526 F.2d 922, 936 (5th
Cir. 1976).

Id. at 1267-1268. The remedy for such awards outside the bounds of evidence is
for the “district court [to] reduce the award to the maximum amount established by
the evidence.” Rodriguez v. Farm Stores Grocery, Inc., 518 F.3d 1259, 1268 (11th
Cir. 2008); see also Gowski v. Peake, 682 F.3d 1299, 1310 n. 10 (11th Cir. 2012);
13

The holding in the Rodriguez case is complicated by the fact that the trial court also
erroneously instructed the jury as to the formula they were to apply to calculate the plaintiffs’
overtime claims. That is not true in the instant case as the court instructed the jury to award the
plaintiff her net lost pay and benefits attributable the FMLA-retaliatory transfer. The evidence at
trial established that plaintiff lost her supplemental “investigator’s pay” as a result of the transfer,
yet the jury awarded damages far in excess of what the supplement was.
16

Goldstein v. Manhattan Industries, Inc., 758 F.2d 1435, 1448 (11th Cir. 1985) (“In
general, a remittitur order reducing a jury's award to the outer limit of the proof is
the appropriate remedy where the jury's damage award exceeds the amount
established by the evidence.”); Howell v. Marmpegaso Compania Naviera, S.A.,
536 F.2d 1032, 1034–35 (5th Cir. 1976); Natco, Inc. v. Williams Brothers
Engineering Co., 489 F.2d 639, 641 (5th Cir. 1974).
Another example of this remittitur rule is found in Wai v. Federal Express
Corp., 461 Fed. Appx. 876 (11th Cir. 2012), an FMLA-retaliation case. In that
case, the court instructed the jury to determine the plaintiff’s lost wages and
benefits from the date of her termination to the date of the verdict, the evidence of
which at trial could not have exceeded $50,000.00. Yet, the jury returned an award
of $225,000.00, causing the parties to assume that the jury had also included “front
pay” in the award. The court of appeals explained that front pay was not part of
the compensable damages that could be awarded by the jury, but is part of the
court’s possible equitable remedies. Because the damages awarded by the jury
clearly exceeded what the evidence of lost wages supported at trial, the court of
appeals vacated the award and the parallel liquidated damages award, commenting
in a footnote, however, that “We note the possibility that past losses could be
handled by way of a proper remittitur….” Wai v. Federal Express Corp., 461 F.
App'x 876, 887 n. 11 (11th Cir. 2012).
17

These cases are not inconsistent with Johansen and the line of authority on
which it rests. Even Johansen, a case dealing with excessive punitive damages,
explained:

A constitutionally reduced verdict, therefore, is really not a remittitur
at all. A remittitur is a substitution of the court's judgment for that of
the jury regarding the appropriate award of damages. The court
orders a remittitur when it believes the jury's award is unreasonable
on the facts. A constitutional reduction, on the other hand, is a
determination that the law does not permit the award. Unlike a
remittitur, which is discretionary with the court and which we review
for an abuse of discretion, …, a court has a mandatory duty to correct
an unconstitutionally excessive verdict so that it conforms to the
requirements of the due process clause.
We conclude that, upon determination of the constitutional limit on a
particular award, the district court may enter a judgment for that
amount as a matter of law. Just as the Supreme Court struck the
unlawful interest from the jury's verdict in Estill and ordered judgment
entered for the remainder, so may the district court strike the
unconstitutional excess from a jury's punitive damage award and enter
judgment for that amount. As in Estill, the power to do so is located
in the court's authority to enter judgment as a matter of law. Thus, a
court proceeds under Rule 50, not Rule 59, in the entry of judgment
for a constitutionally reduced award and the Seventh Amendment is
not implicated in this legal exercise.

Johansen v. Combustion Engineering, Inc., 170 F.3d 1320, 1331 (11th Cir. 1999)
(internal footnotes and citations omitted). In the instant case, it is not a matter of
the court finding the award to plaintiff to be unreasonable; rather the award of
$108,000.00 for the FMLA-retaliatory transfer is unsupported by any evidence
beyond a maximum amount of $3,310.32 (plus interest). There simply was no
18

evidentiary basis in the record for the jury to find that plaintiff lost more than that
amount due to the retaliatory transfer. “Where a portion of a verdict is for an
identifiable amount that is not permitted by law, the court may simply modify the
jury's verdict to that extent and enter judgment for the correct amount. If a
reduction in damages is necessitated by legal error, the reduction is not a remittitur
and a new trial is not required.” Marlite, Inc. v. Eckenrod, 2011 WL 39130, at *3
(S.D. Fla. Jan. 5, 2011), aff'd sub nom. Marlite, Inc. v. Am. Canas, 453 F. App'x
938 (11th Cir. 2012) (citing Johansen and New York, L.E. & W.R. Co. v. Estill,
147 U.S. 591, 622, 13 S. Ct. 444, 37 L. Ed. 292 (1883) (modifying a judgment
when the jury improperly awarded interest)) (internal citations omitted).
In this case, the court has demonstrated that the jury’s award of damages
greater than $3,310.32 (plus interest) for plaintiff’s wrongful transfer under the
FMLA is excessive and unsupported by any evidentiary basis. The only evidence
of a lost wage or benefit (the only damages allowable under the FMLA)
attributable to the transfer was the loss of the supplemental “investigator’s pay”
from the date of the transfer to the date of the verdict, the maximum total of which
was $3,310.32. Indeed, even that sum is a double recovery because it is already
reflected in the $50,000.00 award plaintiff received under the Pregnancy
Discrimination Act for the same conduct (i.e., wrongful discriminatory/retaliatory

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transfer from WANS to patrol).14 The court is required, therefore, to reduce the
verdict to the maximum allowable under the evidence and to eliminate a double
recovery of these lost wages and benefits. The court is not required to give the
plaintiff the option of choosing between a remitted amount or a new trial.

IV. Conclusion
In conclusion, the court will enter a judgment remitting the verdict returned
by the jury to a combined $161,319.92, comprised of the $50,000.00 award for the
discriminatory/retaliatory transfer, $108,000.00 for the discriminatory constructive
discharge, and $3,319.92 in liquidated damages under the FMLA. Plaintiff may
also seek an award of attorneys’ fees and expenses by filing her application and
supporting evidence concerning fees and expenses within fourteen (14) days from
this date.
DATED this 25th day of March, 2016.

_______________________________
T. MICHAEL PUTNAM
UNITED STATES MAGISTRATE JUDGE

14

Even though this sum is a double recovery for purposes of compensating plaintiff for her lost
wages and benefits, the court uses this finding as the basis for determining the “like amount” for
liquidated damages under the FMLA.
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