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Fired Theater Clerk Must Get More Back Pay, Court Says

By William Vogeler, Esq. on January 29, 2018 | Last updated on March 21, 2019

David Pittington was trying to make a living as a low wage-earner in a small-town, Tennessee theater.

He worked in a wooden shack outside, collecting $8 to $10 an hour. He didn't complain too much, except about how management treated his wife, who also worked there.

When the company fired him, he sued for wrongful discharge. A jury gave him $10,000 in back pay, but an appeals court said that wasn't enough in Pittington v. Great Smokey Mountain Lumberjack Feud.

Burden of Proof

The U.S. Sixth Circuit Court of Appeals said the employer had the burden of proving that Pittington didn't mitigate his damages. The trial judge erroneously ruled the other way around.

"We have previously rebuked district courts for 'appl[ying] incorrect legal principles in apparently requiring the employees to prove their efforts to mitigate their damages,'" the appeals court said. "Indeed, we have been quite clear that '[a] claimant is not required to submit evidence of diligence and reasonable care in seeking employment until [the] defendant has met its burden.'"

It was a messy matter of proof because the plaintiff testified that he couldn't remember how much he made at several jobs after he was fired. His attorney calculated Pittington was due about $40,000 in back pay.

The defense argued, however, that Pittington didn't do enough to get a job after his termination. In closing, he said 35 weeks of unemployment was "a long time to not get a job in Pigeon Forge."

Pigeon Forge

In the heart of Tennessee's Appalachia, the town supports about 5,000 residents. It was an isolated mountain town until entrepreneurs developed its potential for tourism, including "Dollywood."

The Sixth Circuit certainly didn't endorse the Lumberjack, saying the theater will have to look again at back pay for its former employee. The court vacated the $10,000 judgment with instructions to the trial court on remand.

In footnotes, the appeals court said a "jury ought to calculate the back pay award using the higher rate." The judges calculated Pitting's gross damages were $65,940, less any money he made between his firing and the judgment.

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