31 F.3d 1354 (6th Cir. 1994), 93-5232, Jackson v. City of Cookeville

Docket Nº:(93-5232; 93-6306), Defendants-Appellants/Cross-Appellees.
Citation:31 F.3d 1354
Party Name:Henry Paul JACKSON (93-5233), Plaintiff-Appellee/Cross-Appellant, v. The CITY OF COOKEVILLE and John Gentry, City Manager
Case Date:August 10, 1994
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1354

31 F.3d 1354 (6th Cir. 1994)

Henry Paul JACKSON (93-5233), Plaintiff-Appellee/Cross-Appellant,

v.

The CITY OF COOKEVILLE and John Gentry, City Manager

(93-5232; 93-6306), Defendants-Appellants/Cross-Appellees.

Nos. 93-5232, 93-5233 and 93-6306.

United States Court of Appeals, Sixth Circuit

August 10, 1994

Argued May 13, 1994.

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Charles Hampton White (argued and briefed), Rebecca L. Wells-Demaree, Cornelius & Collins, Nashville, TN, for plaintiff-appellee cross-appellant.

Everett Harry Falk, Cookeville, TN (argued and briefed), for defendants-appellants cross-appellees.

Before: JONES, Circuit Judge; WELLFORD, Senior Circuit Judge; and ENSLEN, District Judge. [*]

JONES, Circuit Judge, delivered the opinion of the court, in which ENSLEN, District Judge, joined, WELLFORD, Senior Circuit Judge (pp. 1361-63), delivered a separate opinion concurring in part and dissenting in part.

NATHANIEL R. JONES, Circuit Judge.

Plaintiff-Appellee Henry Paul Jackson filed this age discrimination claim against the City of Cookeville and its City Manager, alleging that Jackson was forced to retire from his job as assistant police chief due to his age. Jackson won a jury verdict, and the damage award included an amount for back pay (lost past earnings) and an amount for front pay (lost future earnings). The trial judge entered an order reducing the jury verdict by an amount representing Jackson's expected future pension benefits. The judge also decided that the jury had failed to discount the front pay award to its present value, and thus he further reduced the award by doing so. On appeal, the defendants argue that the jury verdict should be vacated and, alternatively, that the district court should have remitted the damages further, by the amount of Jackson's anticipated future earnings. On cross-appeal, the plaintiff challenges both of the reductions in the award that the court made. We affirm the verdict, and order that a portion of the original jury award be reinstated, as the district court abused its discretion in concluding that the jury did not reduce the award to present value.

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I

Jackson joined the Cookeville Police Force as a patrol officer in 1960. In 1967, he became a sergeant, in 1969 a lieutenant, and in 1974 a captain. In 1975, he was named Assistant Chief of Police. In 1977, Jackson became the Chief of Police, a post he held until 1985. The Cookeville City Manager at that time, Luther Mathis, felt that morale was low on the force and that Jackson was "doing the best he could do, but I felt that I needed to try somebody else in that position and see if they could improve the situation." J.A. at 209. Mathis demoted Jackson to Assistant Chief, without any decrease in pay or benefits, and hired a new chief. The new chief did not solve the morale problem and was removed in 1988, with Jackson appointed acting Chief of Police. In mid-1989, a new police chief, William Benson, was hired from outside the department, and Jackson returned to the position of Assistant Chief.

On January 5, 1990, the City Manager called Jackson to his office and informed him that the City Council wanted him to retire. Jackson, then 52 years old, said that he was not ready to retire. According to Jackson, Jones did not complain about Jackson's work performance nor give any particular reason for his request that Jackson retire. Jones did ask when Jackson was going to reach the point at which he had served thirty years in the department, which is when a Cookeville officer receives full retirement benefits. Jackson said it would be in a couple of months. After this meeting, Jackson went to the Chief and asked if he knew anything about the retirement request. The Chief replied that he was under the impression Jackson was going to retire.

A few weeks later, Jones asked Jackson if he had set a retirement date yet, stating "council and I want you to take up your annual leave starting March 16th, and be out of here by July 1st." J.A. at 112. Jackson once again stated that he did not want to retire. Nevertheless, on March 16, 1990, Jackson began using the over six months of unused annual leave that he had accumulated. In June of that year, while still on leave, Jackson was hospitalized for observation and tests concerning a possible heart problem. He changed to sick leave at this point. In July 1990, Jones abolished Jackson's position as Assistant Chief of Police. In that same month, Defendant John Gentry replaced Jones as city manager.

Gentry learned from the city council that Jackson was voluntarily on leave and was going to retire when the leave ran out. On November 12, 1990, Gentry called a meeting with Jackson, Benson, and McCoy Shelton, who was then the Safety Officer for the city, the third highest post in the police department. Gentry told Jackson that he could remain on sick leave, but when the leave ended, he would have three options: to retire, to be demoted to a patrolman's position, or to be terminated. Gentry had no first-hand knowledge of Jackson's performance as an officer at this time.

Jackson remained on sick leave until March 4, 1991. Two days later, Gentry wrote Jackson advising him of the three options. The letter said the demotion to the patrolman position would carry with it a substantial pay cut. Jackson chose to retire, immediately filing a charge of age discrimination with both the Equal Employment Opportunity Commission and its Tennessee counterpart.

The case proceeded to trial in federal district court. Jackson testified that he would have worked until age sixty-five but for the forced retirement, which he alleged was due to his age. Due to his forced retirement, he said he lost his $40,450 salary, a $2,022 scheduled pay increase approved for the 1990-91 fiscal year, future earnings, insurance coverage, and the use of a city automobile.

In charging the jury, the district court stated that if Jackson prevailed on his age discrimination claim, the jury must award him back pay damages "in the amount which would have been paid to him from the time of his dismissal to the present." J.A. at 243. The court also instructed that Jackson was to receive front pay damages or "an award of prospective or expected damages to compensate a plaintiff for the loss of future earnings." Id. at 244. The court instructed that the plaintiff had a duty to mitigate his damages,

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meaning the plaintiff must have tried to secure similar employment. The court told the jury that they were to subtract any anticipated earnings from any damage award, and that the burden was on the defendants to establish the amounts of mitigated damages to be subtracted. Also, the court gave explicit instructions on discounting the damage award to reflect the present value of any future earnings to be received.

After deliberating, the jury returned a verdict in Jackson's favor and awarded $63,000 in back pay and $467,192 in front pay damages. The verdict form did not require the jury to break down the award into further components. The court entered judgment on the verdict on July 20, 1992. The defendants filed a motion for a judgment notwithstanding the verdict or a new trial. After a hearing, the district court denied the motion. However, the court decided to make three changes in the verdict. First, the court deducted the $16,000 cost of Jackson's personal automobile from the back pay award of the jury. Second, the court deducted from the front pay award the $16,800 annual pension benefit that Jackson received, reducing the front pay component of the judgment to $282,392 in damages. Third, the court determined that the jury had awarded the front pay without discounting it to its present value. After a further hearing, the court reduced the award by a particular discount rate, obtaining a present value of $206,600 for the front pay portion of the award. The back pay portion with the automobile cost subtracted was $47,000, producing total damages of $253,600.

On January 21, 1993, before the notice of appeal was filed in this case, the plaintiff's attorney made a motion for attorneys' fees in the amount of $23,657.50. On August 9, 1993, the district judge granted the motion, awarding $24,372 in fees. Defendants filed a separate appeal challenging this award.

II

After the jury rendered its verdict, the defendants filed a motion for judgment notwithstanding the verdict, which the district court denied. On appeal, we cannot review this claim, for it appears that the defendants did not make a motion for a judgment as a matter of law (formerly directed verdict) at the close of the evidence. "It is well-settled that a court can only consider a motion for a judgment notwithstanding the verdict only if the moving party has previously made a motion for a directed verdict at the close of all the evidence." Portage II v. Bryant Petroleum Corp., 899 F.2d 1514, 1522 (6th Cir.1990) (citing cases). "Therefore, a party who has failed to move...

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