Little v. Technical Specialty Products, LLC et al

Filing 145

MEMORANDUM AND OPINION AND ORDER DENYING 140 MOTION for New Trial filed by Keith Lear, Donna Lear, Technical Specialty Products, LLC. Signed by Magistrate Judge Amos L. Mazzant on 3/18/2014. (baf, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

DALE LITTLE

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V.
TECHNICAL SPECIALTY PRODUCTS
LLC, et. al.

CASE NO. 4:11-CV-717

MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’ MOTION FOR
NEW TRIAL
Pending before the Court is Defendants’ Motion for New Trial (Dkt. #140). After
reviewing the motion, the response (Dkt. #142), and the relevant pleadings, the Court finds
Defendants’ motion is denied.
BACKGROUND
This is a suit for employment retaliation under the Fair Labor Standards Act (“FLSA”), in
which the jury found Defendant Technical Specialty Products, LLC (“TSP”) fired Plaintiff in
violation of the FLSA and awarded him $105,366.25 in back pay (Dkt. #113). The jury also
found Defendants Keith Lear and Donna Lear individually liable as “employers” under the
FLSA. Id. Subsequently, the Court denied Defendants’ Reurged Motion for Judgment as a
Matter of Law and ruled on the remaining issues of liquidated damages and front pay (Dkt. #134,
#135). On October 23, 2013, the Court entered Final Judgment against all Defendants in the
amount of $210,732.50, consisting of $105,366.25 in back pay and an additional sum of
$105,366.25 in liquidated damages (Dkt. #136). The Court further ordered that all costs are to be
paid by Defendants. Id.

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On November 19, 2013, Defendants filed their appeal in the Fifth Circuit Court of
Appeals (Dkt. #139).

As of December 30, 2013, that appeal was dismissed for want of

prosecution (Dkt. #144).
On November 20, 2013, Defendants filed their motion for new trial (Dkt. #140). On
December 4, 2013, Plaintiff filed his response (Dkt. #142).
LEGAL STANDARD
Under Rule 59(a) of the Federal Rules of Civil Procedure, a new trial can be granted to
any party to a jury trial on any or all issues “for any reason for which a new trial has heretofore
been granted in an action at law in federal court.” FED. R. CIV. P. 59(a). “A new trial may be
granted, for example, if the district court finds the verdict is against the weight of the evidence,
the damages awarded are excessive, the trial was unfair, or prejudicial error was committed in its
course.” Smith v. Transworld Drilling Co., 773 F.2d 610, 613 (5th Cir. 1985). However,
“[u]nless justice requires otherwise, no error in admitting or excluding evidence – or any other
error by the court or a party – is grounds for granting a new trial… At every stage of the
proceeding, the court must disregard all errors and defects that do not affect any party’s
substantial rights.” FED. R. CIV. P. 61.
To be entitled to a new trial, Plaintiff must show that the verdict was against the great
weight of the evidence, not merely against the preponderance of the evidence. Taylor v. Seton
Healthcare, No. A-10-CV-650 AWA, 2012 WL 2396880, at *2 (W.D. Tex. June 22, 2012)
(citing Dresser–Rand Co. v. Virtual Automation, Inc., 361 F.3d 831, 838–39 (5th Cir. 2004);
Shows v. Jamison Bedding, Inc., 671 F.2d 927, 930 (5th Cir. 1982)). A jury verdict is entitled to
great deference. Dresser–Rand Co., 671 F.2d at 839. “Weighing the conflicting evidence and the
inferences to be drawn from that evidence, and determining the relative credibility of the

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witnesses, are the province of the jury, and its decision must be accepted if the record contains
any competent and substantial evidence tending fairly to support the verdict.” Gibraltar Savings
v. LDBrinkman Corp., 860 F.2d 1275, 1297 (5th Cir.1988).
ANALYSIS
Defendants first move for new trial on the grounds that the Court failed to instruct the
jury on Defendants’ failure to mitigate affirmative defense. At trial, Defendants asserted that
Plaintiff failed to mitigate his damages by not pursuing other suitable employment after his
termination. Defendants requested that an instruction on mitigation of damages be submitted to
the jury. At the close of the evidence, Plaintiff moved for judgment as a matter of law on
Defendants’ failure to mitigate defense.

The Court granted the motion and removed the

mitigation instruction from the jury instructions prior to charging the jury. Defendants now
move for new trial on the basis that the Court failed to instruct the jury on the issue of
mitigation.1
In Sparks v. Griffin, 460 F.2d 433, 443 (5th Cir. 1972), the Fifth Circuit reversed the
district court’s decision denying the plaintiff back pay solely because it found that he did not
make a diligent effort to secure other employment. Specifically, the Fifth Circuit found that this
finding alone was insufficient to deny a plaintiff back pay:
On this appeal, the appellees do not claim that at trial it was proved that there
were teaching jobs available for which Mr. Bozeman would have qualified had he
applied. It merely asserts that Mr. Bozeman did not expend sufficient effort to
find other teaching employment. The appellees’ position is without legal
justification.
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Plaintiff contends that Defendants are essentially moving for reconsideration of the Court’s decision to grant
Plaintiff’s motion for judgment as a matter of law on the issue of mitigation of damages. However, the Court does
not interpret Defendants’ motion in that manner. The Court issued two rulings at that time: one granting Plaintiff’s
motion for judgment as a matter of law, and one removing the mitigation of damages instruction in the jury
instructions over the objection of Defendants. The Court noted several times during the proceedings that Defendants
were properly preserving their error on mitigation of damages for appeal purposes. Thus, the Court interprets
Defendants’ motion as a request for new trial on the failure to include the mitigation of damages instruction in the
charge given to the jury.

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Id. The Sparks court held that an employer “has to show not only that the plaintiff-appellant
failed to use reasonable care and diligence, but that there were jobs available which appellant
could have discovered and for which she was qualified.” Id. Thus, as Plaintiff argues, the Fifth
Circuit established a two-part evidentiary burden:

(1) that the plaintiff failed to exercise

reasonable diligence and (2) that there were jobs available that the plaintiff could have
discovered and for which he was qualified. Id. Failure to mitigate is an affirmative defense and
Defendants had the burden of proof on this issue. Palasota v. Haggar Clothing, Co., 499 F.3d
474, 486 (5th Cir. 2007); Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1045 (5th Cir. 1998).
Defendants urge the Court to reject Sparks and to follow language contained in a later
Fifth Circuit panel decision, which states: “If an employer proves that an employee has not
made reasonable efforts to obtain work, the employer does not have to establish the availability
of substantially comparable work.” Sellers v. Delgado Community College, 839 F.2d 1132, 1139
(5th Cir. 1988). However, as the Court stated at trial, the Sellers panel failed to cite Sparks or
any other Fifth Circuit precedent for this opinion. Importantly, Sparks predates Sellers and
Sparks has not been overruled by the en banc Fifth Circuit; thus, Sparks is the controlling
precedent that is binding on this Court. See Kanida v. Gulf Coast Medical Personnel LP, 363
F.3d 568, 574 (5th Cir. 2004); United States v. Dial, 542 F.3d 1059, 1060 (5th Cir. 2008). Other
district courts also considering this issue have refused to apply the language in Sellers and
instead have held that a defendant must meet the two-part Sparks test. See Paulissen v. MEI
Technologies, Inc., 942 F. Supp. 2d 658, 677 (S.D. Tex. 2013); Starr v. Oceaneering Int’l, No.
4:09-cv-0204, 2010 WL 644445, at *12 n.8 (S.D. Tex. Feb. 18, 2010); Miles-Hickman v. David
Powers Homes, Inc., 613 F. Supp. 2d 872, 887 n.22 (S.D. Tex. 2009); Huffman v. City of
Conroe, No. H-07-1964, 2009 WL 361413, at *13 n.37 (S.D. Tex. Feb. 11, 2009). This Court
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agrees with the rationale set forth in these cases. Until the decision in Sparks is overruled by the
Fifth Circuit en banc, this Court is bound to apply the two-part test articulated by the Fifth
Circuit in Sparks.
Defendants argue that the Fifth Circuit’s opinion in NLRB v. Armstrong Tire & Rubber
Co., 263 F.2d 680, 683 (5th Cir. 1956), is contrary to and predates Sparks. However, the issue
before the Fifth Circuit in Armstrong Tire was not the second prong of the Sparks test that is at
issue here. Id. In Armstrong Tire, the Fifth Circuit held that an employee’s self-employment
was not sufficient bona-fide to satisfy his duty to mitigate, and the Fifth Circuit reiterated that a
discharged employee must exercise reasonable diligence to seek other employment. Id. at 68284. The Fifth Circuit did not hold that an employer need not prove the availability of equivalent
employment because it had no need to reach that issue in its decision.
Defendants also cite Hansard v. Pepsi-Cola Metro, Bottling Co., 865 F.2d 1461, 1468
(5th Cir. 1989). However, like Sellers, that decision is also post-Sparks and could not overrule
the earlier opinion in Sparks. In addition, this case also did not address the second prong of the
Sparks test. Thus, Defendants’ reliance on this case is misplaced.
Having determined that the two part test set out by the Fifth Circuit in Sparks is the
controlling test, the Court must determine if Defendants met their burden to show that (1) the
plaintiff failed to exercise reasonable diligence and (2) there were jobs available that the plaintiff
could have discovered and for which he was qualified. Plaintiff asserted that Defendants failed
to show any evidence that there were jobs available that the plaintiff could have discovered and
for which he was qualified. Defendants do not dispute that they provided no such evidence.
Instead, Defendants contend that the testimony of Plaintiff established that in searching for
employment he sent out hundreds of resumes in response to advertisements for available jobs.

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Defendants argue that “[i]t defies logic to believe that [Plaintiff] submitted hundreds of resumes
in response to hundreds of advertisements for positions that were not available” (Dkt. #140 at 9).
However, to meet their evidentiary burden, Defendants were required to present evidence that
substantially equivalent employment opportunities were available, and Plaintiff did not apply for
those opportunities. See Paulissen, 942 F. Supp. 2d at 677; Starr, 2010 WL 644445, at *13. The
evidence at trial consisted only of Plaintiff’s testimony regarding jobs that he did apply for that
he did not receive. This is insufficient to support Defendants’ evidentiary burden, and the Court
finds that Defendants’ motion for new trial is denied on this ground.
Defendants also argue that the Court improperly instructed the jury on the burden of
proof in light of the Supreme Court’s recent decision in University of Texas Southwestern
Medical Center v. Nassar, -- U.S. --, 133 S.Ct. 2517 (2013). On August 2, 2013, the Court
ordered the parties to submit briefing on the impact of this decision on the jury verdict rendered
in this case (Dkt. #129). The parties submitted their briefs (Dkt. #130, #131, #132), and
Defendants argued that the Supreme Court’s decision in Nassar altered the burden of proof to
“but-for” causation in FLSA cases. Defendants offer no new arguments, but merely re-urge
those arguments presented in their prior briefs that were previously ruled on by the Court (Dkt.
#134).
In its order, this Court found that Nassar did not alter the law as to FLSA retaliation
claims because the standard in the Fifth Circuit for FLSA retaliation claims has always required
“but-for” causation (Dkt. #134 at 8 (citing Kanida v. Gulf Coast Medical Personnel LP, 363 F.3d
568, 580-81 (5th Cir. 2004)). Second, the Court found that Defendants did not object to the
Court’s FLSA retaliation instructions, and, thus, the instruction would be reviewed for plain
error. The Court found that its jury instructions were consistent with the “but-for” standard and

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did not apply a lesser standard (Dkt. #134 at 9-10). Thus, there was no plain error in the Court’s
jury instructions. Finally, the Court found that its instruction that “Plaintiff does not have to
prove that unlawful retaliation was the sole reason TSP discharged Plaintiff” was not error and
was consistent with both Nassar and current Fifth Circuit law (Dkt. #134 at 11). Defendants
offer no argument or additional evidence demonstrating any reason that the Court should
reconsider its prior ruling, and the Court sees no reason to do so. Defendants’ motion for new
trial is denied on this ground.
Finally, Defendants contend that the jury’s finding that Plaintiff’s termination was
retaliatory is against the weight of the evidence based on the testimony of Defendants witnesses
regarding Plaintiff’s poor performance and disciplinary issues. As this Court previously noted:
Plaintiff presented evidence sufficient for the jury to conclude that Defendants’
reasons for Plaintiff’s discharge were pretext. Defendants did present evidence
that they fired Plaintiff for a variety of reasons. However, Plaintiff also offered
evidence that Defendants’ explanations were false. For example, Defendant
contends that Plaintiff reported excessive time for truck repairs and estimates.
However, Plaintiff also testified that TSP told him to get the estimates and repairs
done, and that he accurately reported the time. He testified that he was only paid
for part of the time, and that he was never counseled about the time he reported
for the repairs and estimates and was not told this was a reason for his firing.
Further, Plaintiff presented additional evidence from which the jury could have
concluded that TSP had retaliatory intent to discharge Plaintiff. Plaintiff testified
that when he was fired on October 20, 2011, that Donna Lear told him that she
was aware that he was discontent with the overtime policy and that she heard he
was planning to sue the company. Donna Lear further told Defendant that TSP
had already consulted with their lawyers about the legality of the overtime policy.
In addition, Plaintiff was an at-will employee and could be discharged at any time
for any reason. In spite of all the problems Defendants stated they were having
with Plaintiff, they did not fire him until after he complained about the overtime
policy. Plaintiff testified that less than 24 hours before he was fired, he discussed
with his coworkers his opposition to the overtime policy and disclosed the fact
that he talked to a lawyer. This evidence is also sufficient for a jury to conclude
that Defendants fired Plaintiff in retaliation for his engaging in FLSA protected
activity.

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(Dkt. #134 at 6). While Defendants’ witnesses testified to a variety of problems with Plaintiff
during his employment, this testimony was contradicted by Plaintiff’s testimony. As the Fifth
Circuit stated, “The fact that there was conflicting testimony regarding causation and damages is
not grounds for granting a new trial. Where the jury could have reached a number of different
conclusions, all of which would have sufficient support based on the evidence, the jury’s
findings will be upheld.” Dawson v. Wal-Mart Stores, Inc., 978 F.2d 205, 208 (5th Cir. 1992)
(citation omitted). Plaintiff presented evidence that Defendants’ reasons for his discharge were
pretextual. Plaintiff testified that when Donna Lear discharged him on October 20, 2011, she
told him that she knew he was discontent with the overtime policy that she heard he was
planning to sue the company. Plaintiff also testified that she said they were not intimidated by
threats since they had already consulted their own lawyers about the legality of the policy. Ms.
Lear’s statements to Plaintiff at the time of his discharge are direct evidence of retaliatory intent,
and such evidence alone is sufficient to permit the jury to find retaliatory motive. See, e.g.,
Fierros v. Tex. Dep’t of Health, 274 F.3d 187, 195 (5th Cir. 2001), overruled on other grounds
by Desert Palace, Inc. v. Costa, 539 U.S. 90, 92 (2003); Portis v. First Nat’l Bank, 34 F.3d 325,
328 (5th Cir. 1994); see also Manaway v. Med. Ctr. Of SE Tex., 430 F. App’x 317, 324 (5th Cir.
June 23, 2011). Therefore, the jury’s verdict is not against the great weight of the evidence, and
Defendants’ motion for new trial is also denied on this ground.
CONCLUSION
For the foregoing reasons, the Court finds Defendants’ Motion for New Trial (Dkt. #140)
is DENIED.
IT IS SO ORDERED.

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SIGNED this 18th day of March, 2014.

___________________________________
AMOS L. MAZZANT
UNITED STATES MAGISTRATE JUDGE

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