No. 03-6338 _________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. ROBERTSON-CHEATHAM FARMERS' COOPERATIVE, Defendant-Appellant. _________________________________________ On Appeal from the United States District Court for the Middle District of Tennessee Hon. Thomas A. Wiseman, Jr., Presiding _________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE _________________________________________ ERIC S. DREIBAND GAIL S. COLEMAN General Counsel Attorney LORRAINE C. DAVIS EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 1801 L Street, N.W., Room 7034 Assistant General Counsel Washington, D.C. 20507 (202) 663-4055 TABLE OF CONTENTS Page TITLE VII FACT SHEET . . . . . . . . . . . . . . . . . . . . .iii STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . iv TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . .v STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . .2 A. Course of Proceedings. . . . . . . . . . . . . . . . .2 B. Statement of Facts . . . . . . . . . . . . . . . . . .3 C. District Court Opinion . . . . . . . . . . . . . . . .7 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . .9 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Because the Jury's Verdict Rests on a Reasonable Interpretation of the Evidence, the District Court Properly Denied Robertson-Cheatham's Alternative Motions for Judgment as a Matter of Law and Remittitur . . . . . . . . . . . . 11 A. Standard of Review . . . . . . . . . . . . . . . . . 11 B. The Jury Reasonably Concluded that Markham Did Not Voluntarily Remove Himself from the Workforce. . . . 13 C. The Jury Reasonably Found that Robertson-Cheatham Did Not Meet Its Burden of Showing That Markham Failed to Mitigate His Damages. . . . . . . . . . . . . . . . . . . . . 16 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 23 ADDENDUM Designation of Appendix Contents Tramill v. UPS, 2001 WL 278697, Nos. 99-6297 & 99-6298, 10 Fed. Appx. 250 (6th Cir. Mar. 12, 2001) (unpublished) CERTIFICATE OF SERVICE UNITED STATES COURT OF APPEALS, SIXTH CIRCUIT FACT SHEET FOR TITLE VII APPEALS Despite the fact that the district court and the Court of Appeals have coded this case as a Title VII matter, the case arises solely under the Age Discrimination in Employment Act, 29 U.S.C. 621 et seq. (See R.1, Complaint at 1, App. at 12; Robertson-Cheatham's Title VII Fact Sheet, Opening Br. at vii). Accordingly, the Sixth Circuit rules do not require either party to file a Title VII fact sheet. See 6th Cir. R. 28(c). STATEMENT REGARDING ORAL ARGUMENT The Equal Employment Opportunity Commission ("EEOC") requests oral argument. Robertson-Cheatham's opening brief omits any mention of the defendant's burden of proof on the affirmative defense of failure to mitigate, and it also distorts the record evidence upon which the jury relied in finding for the EEOC. Oral argument would let the parties and Court address these important legal and factual matters. TABLE OF AUTHORITIES No. 03-6338 _________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. ROBERTSON-CHEATHAM FARMERS' COOPERATIVE, Defendant-Appellant. _________________________________________ On Appeal from the United States District Court for the Middle District of Tennessee Hon. Thomas A. Wiseman, Jr., Presiding _________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE _________________________________________ STATEMENT OF JURISDICTION The district court had jurisdiction over this age discrimination case under 28 U.S.C. 1331 and 29 U.S.C. 626(b). Based on the jury's verdict, the district court entered final judgment for the EEOC on July 21, 2003. (R. 104, Judgment, App. at 29.) Robertson-Cheatham filed timely post-trial motions on July 28, 2003, (R. 106, Motion, App. at 31), which the district court denied on September 5, 2003. (R. 116, Order, App. at 74.) On September 19, 2003, Robertson-Cheatham filed a timely notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure. (R. 117, Notice of Appeal, App. at 75.) This Court has jurisdiction under 28 U.S.C. 1291. STATEMENT OF THE ISSUE Did the district court correctly deny Robertson-Cheatham's alternative motions for judgment as a matter of law and remittitur when the jury's verdict rests on a reasonable interpretation of the evidence? STATEMENT OF THE CASE This is an appeal from an order of the district court denying Robertson- Cheatham's alternative post-trial motions for judgment as a matter of law and remittitur. Opening Br. at 2. A. Course of Proceedings The EEOC filed an enforcement action under the Age Discrimination in Employment Act on March 29, 2001. (R. 1, Complaint, App. at 12.) Following trial, a jury awarded the EEOC $37,043.36 in backpay. (R. 103, Verdict, App. at 27.) The district court entered judgment on the jury's award (R. 104, Judgment, App. at 29), and it denied Robertson-Cheatham's post-trial motions for judgment as a matter of law, new trial, and remittitur. (R. 116, Order, App. at 74.) Robertson-Cheatham filed a timely notice of appeal. (R. 117, Notice of Appeal, App. at 75.) B. STATEMENT OF FACTS Jesse Markham lives in Robertson County, Tennessee. He has a tenth grade education and was a farmer for most of his life. (Jesse Markham, Tr. Vol. II at 7, App. at 81.) He began working for Robertson-Cheatham, a small farmers' cooperative, in 1989, driving a fertilizer spreader truck and doing whatever else was asked of him. (Id. at 8, 12, App. at 82, 83.) In 1999, after more than nine years of employment, Robertson-Cheatham fired him. (See id. at 37, App. at 101.) Markham, then age 72, was not ready to retire at the time of his termination. (Id. at 38, 40, 45, App. at 102-04.) He had planned to work full time for at least another two years and then to supplement his retirement income by working part time on a seasonal basis. (Id. at 38, 59, App. at 102, 112.) Despite Markham's desire to remain employed, Robertson-Cheatham illegally fired him because of his age. See Opening Br. at 17 ("Defendant does not challenge the finding of the jury that Mr. Markham was the subject of discrimination [in] employment based upon age"); id. at 21 ("there is a finding of discrimination that can stand"). Rather than admitting age discrimination, however, Robertson-Cheatham said in its separation notice, "[The] employee's abilities have deteriorated over time to the point that the employer feels that the employee is in danger of hurting himself or one of our customers or a member of the public." (Jesse Markham, Tr. Vol. II at 47, App. at 105.) For two years following his involuntary termination, Markham sought full- time employment. (Id. at 140, App. at 131.) But see Opening Br. at 7-8 (stating that Markham did not seek employment, and citing to pages of the record that do not support this proposition). He applied to three other farmers' cooperatives in two states, (Jesse Markham, Tr. Vol. II at 49-51, App. at 106-08), and he testified that he would have taken whatever job they had offered, whether it was full time or part time. (See id. at 117, App. at 127 ("I knew they might need somebody for the season. I didn't know if it would run into full time or whether it would be part time or what.").) All three cooperatives, however, turned him down. (Id. at 49-51, App. at 106-08.) At least one of them did so after reading Markham's separation notice. (Id. at 50-51, App. at 107-08.) Robertson-Cheatham did not introduce any evidence that jobs were available to Markham that were substantially similar to the one which he had lost. Moreover, there is no evidence that any of the farmers' cooperatives which refused to hire Markham suggested that he reapply in the future. But see Opening Br. at 6 (asserting that "Mr. Markham was advised by all three entities . . . that he should check the following years," and citing to pages of the record that do not support this proposition). Markham did find two short-term jobs in 1999, cutting hay and stripping tobacco. (Jesse Markham, Tr. Vol. II at 51-52, App. at 108-09.) Apart from these temporary positions, Markham remained unemployed until 2001, when he began a part-time job spreading fertilizer for Agri Alliance. He began working for Agri Alliance after a mutual contact suggested to the company that Markham might be willing to spread fertilizer on a part-time basis. (Id. at 140, App. at 131.) Markham's primary sources of income following his illegal termination from Robertson-Cheatham were his social security benefits, unemployment benefits, and the money from his 401(k) retirement savings plan. (Id. at 53, 112, App. at 110, 122.) He testified that he put most of the money from his 401(k) plan into an IRA, but that he used some of it for living expenses. (Id.) Markham also testified that he referred to himself as "retired" on the federal income tax forms he filed following his termination because "I wasn't working." (Id. at 53, App. at 110.) He elaborated, "What was I supposed to say, I was fired? I don't think you put that down there." (Id. at 111, App. at 121.) The jury found that Robertson-Cheatham had illegally fired Markham because of his age, and it awarded backpay of $37,043.36. (R.103, Verdict, App. at 27.) This amount represented full-time wages for the two years between Markham's termination and the time he began working for Agri Alliance, plus the contributions that Robertson-Cheatham would have made to Markham's pension fund had he not been fired, minus the money that Markham earned working at other jobs. (See Nancy Kincaid, Tr. Vol. III at 215-19, 222.) Robertson-Cheatham moved in the alternative for judgment as a matter of law, new trial, or remittitur. (R.106, Motion, App. at 31.) In an effort to demonstrate that the jury had erred in awarding two years of full-time wages, Robertson-Cheatham told the district court, "There are at least four (4) identifiable sums for which . . . a remittitur would be appropriate." (R.110, Memo at 12 n.3, App. at 45.) Robertson-Cheatham speculated that the jury should have found as follows: 1. Markham's applications to three farmers' cooperatives in March 1999 were for full-time positions, but Markham stopped seeking work after March, or 2. Markham sought full-time employment for the fertilizer spreading season of March through June 1999 but then stopped looking for a job, or 3. Markham also sought part-time employment for the remainder of 1999, or 4. Markham never sought anything other than part-time employment, but he sought such employment for the entire two-year period following his termination. (Id.) Robertson-Cheatham told the district court that "any of these scenarios is arguably supported by substantial evidence." (Id.) C. DISTRICT COURT OPINION The district court denied Robertson-Cheatham's post-trial motions. (R.116, Order, App. at 74.) The court rejected Robertson-Cheatham's argument that Markham had failed to mitigate his damages, noting that "Plaintiff presented ample evidence from which a jury could conclude that Mr. Markham mitigated his damages." (R.115, Memo at 4, App. at 69.) Specifically, the court said, "Mr. Markham testified that after his termination in February 1999, he sought employment from three farmers' cooperatives who all denied him work. He testified that he finally found work rolling hay and stripping tobacco, and that he could not find another job because of his separation notice. Mr. Markham testified that he sought employment in Guthrie, Kentucky; Clarksville, Tennessee; and Trenton, Kentucky. Mr. Edwards testified about how he tried to help Mr. Markham get work. The evidence suggested that there were no full time fertilizer spreader jobs available." (Id. at 4-5, App. at 69-70.) The district court added that "Defendant did not present evidence of other employers to whom Mr. Markham could have applied or other fertilizer spreader jobs that were available." (Id. at 5, App. at 70.) The court concluded, "[T]he facts are not so one-sided that a directed verdict is warranted." (Id.) The district court also denied Robertson-Cheatham's motion for remittitur, noting that "the jury was not unreasonable in finding that Mr. Markham mitigated his damages," and that "the jury here decided that Mr. Markham had not withdrawn himself from the workforce." (Id. at 7, App. at 72.) Pointing to Robertson-Cheatham's motion, the court said, "The mere fact that Defendant proposes four different remittitur standards indicates how fact intensive the jury calculation was." (Id. at 8, App. at 73.) The court also noted that the jury had followed statutory guidelines for calculating backpay and had not doubled the award for willfulness. (Id.) "Thus," the court concluded, "the verdict is not against the clear weight of the evidence and the amount of the award was not excessive." (Id.) SUMMARY OF ARGUMENT The district court properly deferred to the jury in denying Robertson- Cheatham's motions for judgment as a matter of law and remittitur. The jury considered and rejected the same fact-based arguments that Robertson-Cheatham makes here. The jury's interpretation of the evidence may not have been the only possible interpretation, but it was certainly a reasonable one. Evidence supports the jury's conclusion that Markham did not voluntarily remove himself from the workforce. Markham testified that he looked for a full- time job in the two years following his wrongful termination, and he described his rejection by three of Robertson-Cheatham's competitors. He was 72 years old at the time of his termination, which made job hunting harder than it would have been if he had been younger. He also testified that the separation notice which Robertson-Cheatham had given him made his job search especially difficult, as the notice described him as unsafe around heavy machinery. Markham testified that one farmers' cooperative rejected him after reading the separation notice. Evidence showed that Markham remained open to employment throughout the backpay period, ultimately accepting a part-time job driving a fertilizer spreader truck two years after his termination. The jury could reasonably conclude that it was Robertson-Cheatham, and not Markham, who removed Markham from the workforce for two years. Evidence also supports the jury's conclusion that Robertson-Cheatham did not satisfy its burden of showing that Markham failed to mitigate his damages. Robertson-Cheatham, which had the burden of proof on this issue, introduced no evidence of the availability of any jobs which were substantially equivalent to the one Markham had lost. In the absence of proof that such jobs were available, Markham had no duty to explain why he did not locate and accept one. Moreover, considering Markham's age and experience, it was reasonable for the jury to reject Robertson-Cheatham's contention that Markham had failed to use reasonable care and diligence in seeking employment. Robertson-Cheatham conceded in the district court that an assessment of Markham's mitigation efforts is heavily fact-based and that "substantial evidence" supports any one of four possible interpretations. The jury found a fifth interpretation that, considering his circumstances, Markham made reasonable efforts to look for full-time work in the two years following his termination. Enough record evidence supports this conclusion to make it impossible for this Court to set aside the jury's verdict. ARGUMENT Because the Jury's Verdict Rests on a Reasonable Interpretation of the Evidence, the District Court Properly Denied Robertson-Cheatham's Alternative Motions for Judgment as a Matter of Law and Remitittur. A. Standard of Review This Court reviews the denial of a judgment of a matter of law de novo, viewing the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences in the non-movant's favor. Conwood Co. v. United States Tobacco Co., 290 F.3d 768, 781 (6th Cir. 2002), cert. denied, 537 U.S. 1148 (2003). The Court must not weigh the evidence or judge the credibility of witnesses. Id. It may reverse the district court's denial "only when there is a complete absence of fact to support the verdict, so that no reasonable juror could have found for the nonmoving party." More v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073, 1078 (6th Cir. 1999). The denial of remitittur is reviewed for abuse of discretion. Strickland v. Owens Corning, 142 F.3d 353, 358 (6th Cir. 1998). This Court may reverse the denial of remittitur "only if the award clearly exceeds the amount which, under the evidence in the case, was the maximum that a jury could reasonably find." Id. at 357. Robertson-Cheatham's opening brief violates the principle that, in reviewing a district court's denial of challenges to a jury's verdict, this Court may consider only evidence that was before the jury. See Garcia v. Am. Marine Corp., 432 F.2d 6, 8 (5th Cir. 1970) ("It is fundamental that facts not presented at trial may not be asserted on appeal."). Throughout its brief, Robertson-Cheatham seeks to discredit Markham's trial testimony by citing to portions of his pretrial deposition. See Opening Br. at 7, 11, 14, 22. Robertson-Cheatham could have sought to introduce the pretrial deposition into evidence, or it could have read the cited portions of the deposition into the trial transcript. It did neither. Robertson-Cheatham cannot now ask this Court to hold that the district court erred by refusing to reverse a jury verdict based on evidence that was not before the jury. See Haygood v. Auto-Owners Ins. Co., 995 F.2d 1512, 1515 (11th Cir. 1993) ("Our review is limited to errors allegedly made by the trial court, not those made by counsel."). In considering this appeal, this Court should disregard all references in Robertson-Cheatham's brief to Markham's pretrial deposition. B. The Jury Reasonably Concluded that Markham Did Not Voluntarily Remove Himself from the Workforce. The district court correctly held that the jury was reasonable in concluding that Markham did not voluntarily remove himself from the workforce. Markham testified that he was not ready to retire when Robertson-Cheatham illegally fired him from his job of more than nine years. (Jesse Markham, Tr. Vol. II at 38, 40, 45, App. at 102-04.) To the contrary, he hoped to work full time for another two years, and then part time thereafter. (Id. at 38, 59, App. at 102, 112.) Markham testified that he sought full-time work for two years following his discharge. (Id. at 140, App. at 131.) He applied to three farmers' cooperatives in two states, but he was rejected by all three. (Id. at 49-51, App. at 106-08.) He testified that he was hampered in his job search by the separation notice that Robertson-Cheatham had given him. (Id. at 50-51, App. at 107-08.) That notice falsely claimed that Robertson-Cheatham had fired Markham because his "abilities have deteriorated over time to the point that the employer feels that the employee is in danger of hurting himself or one of our customers or a member of the public." (Id. at 47, App. at 105.) At least one of the farmers' cooperatives that rejected Markham did so after reading this separation notice. (Id. at 50-51, App. at 107-08.) Despite Markham's inability to find a new job at a farmers' cooperative, he remained open to employment. In late 1999, he found two short-term jobs cutting hay and stripping tobacco. (Id. at 51-52, App. at 108-09.) Later, in 2001, he accepted a part-time position spreading fertilizer for Agri Alliance. (Id. at 140, App. at 131.) The jury considered and rejected Robertson-Cheatham's argument that Markham voluntarily withdrew from the workforce because he did not apply for a greater number of jobs, because he listed his occupation as "retired" on his federal income tax returns, and because he used some of the money from his 401(k) retirement plan for living expenses after his termination. (See Robertson- Cheatham's Closing Arg., Tr. Vol. III at 356, App. at 145.) The jury's rejection of this argument was reasonable. Robertson-Cheatham, which had the burden of introducing evidence on the availability of similar jobs, see Rasimas v. Michigan Dep't of Mental Health, 714 F.2d 614, 623-24 (6th Cir. 1983), did not point to a single job opportunity that Markham overlooked or refused. Thus, the jury could reasonably conclude that Markham did not apply for additional jobs because there were no jobs available which were substantially similar to the one which he had lost. The jury could reasonably accept Markham's explanation that he listed his occupation as "retired" on his federal tax forms because he was not working and did not believe that it would be appropriate to list his occupation as "fired." (See Jesse Markham, Tr. Vol. II at 111, App. at 121.) The jury could also reasonably reject as evidence of retirement the fact that after his termination, Markham withdrew cash from his retirement savings account in order to meet his living expenses. (See id. at 53, 112, App. at 110, 122.) With no more income from Robertson-Cheatham, Markham needed some way to pay his bills. Far from being "unrebutted," see Opening Br. at 14, the question of whether Markham had voluntarily withdrawn from the workforce was hotly disputed at trial. As the district court observed, the jury heard evidence on both sides. (See R.115, Memo at 4, App. at 69.) Unlike the plaintiff in Kirsch v. Fleet St., Ltd., 148 F.3d 149 (2d Cir. 1998), Markham did not testify in court that he had retired. See Kirsch, 148 F.3d at 168 (district court properly told the jury that it could not award backpay after June 1994 based on the plaintiff's trial testimony that he and his wife moved to Florida at that time and "I retired"; plaintiff did not object to verdict form's description of him as retired). To the contrary, Markham testified that he sought full-time employment for two years following his discharge, (Jesse Markham, Tr. Vol. II at 140, App. at 131), and he repeatedly testified to his desire for full-time work. (Id. at 38, 40, 59, 140, App. at 102, 103, 112, 131.) Viewing the trial evidence in the light most favorable to the EEOC, and drawing all reasonable inferences in the EEOC's favor, see Conwood Co., 290 F.3d at 781, it was reasonable for the jury to conclude that Markham did not voluntarily leave the workforce. Without "a complete absence of fact to support the verdict," More, 171 F.3d at 1078, this Court may not reverse the district court's refusal to overturn the jury's finding. Id. C. The Jury Reasonably Found that Robertson-Cheatham Did Not Meet Its Burden of Showing that Markham Failed to Mitigate His Damages. The district court correctly held that the jury was reasonable in concluding that Robertson-Cheatham had failed to meet its burden of proof on the affirmative defense of failure to mitigate. (See R.115, Memo at 5, App. at 70.) This Court has expressly held that once a plaintiff establishes a prima facie case of discrimination and presents evidence regarding damages, the burden of proof shifts to the defendant to show that the claimant did not make reasonable efforts to find alternative employment. See Rasimas, 714 F.2d at 623; see also Meyers v. City of Cincinnati, 14 F.3d 1115, 1119 (6th Cir. 1994) (same); Coleman v. City of Omaha, 714 F.2d 804, 808 (8th Cir. 1983) (same); Jackson v. Shell Oil Co., 702 F.2d 197, 201 (9th Cir. 1983) (same); Cline v. Roadway Express, Inc., 689 F.2d 481, 489 n.8 (4th Cir. 1982) (same). In order to satisfy its burden, the defendant must show: (1) that substantially equivalent jobs were available; and (2) that the claimant did not use reasonable care and diligence in seeking these jobs. See Rasimas, 714 F.2d at 624; see also Ford v. Nicks, 866 F.2d 865, 873 (6th Cir. 1989) (same). This is a two-part test, and the defendant must satisfy both parts in order to prevail. A defendant who does not show that substantially equivalent jobs were available cannot establish a failure to mitigate. Rasimas, 714 F.2d at 624; Meyers, 14 F.3d at 1119; see EEOC v. Gurnee Inn Corp., 914 F.2d 815, 818-19 (7th Cir. 1990) ("because Gurnee failed to establish that there was a reasonable chance the claimants could have found comparable employment, the defendant failed to sustain its burden of proof"); cf. Ford v. Nicks, 866 F.2d at 873-74 (defendant did not carry its burden with respect to one argument when, after termination, plaintiff switched to new field of employment and defendant did not show what plaintiff could have been expected to earn in the new field if she had pursued that work actively and full time). Robertson-Cheatham understandably ignores its burden of proof in its opening brief because as the district court noted it did not introduce a single piece of evidence at trial to show the availability of substantially equivalent jobs. (R.115, Memo at 5, App. at 70.) Robertson-Cheatham did not identify even one employer with a substantially equivalent job that was available in the two years after Markham was fired. Compare Ford v. Nicks, 866 F.2d at 874-75 (defendants introduced evidence of numerous substantially equivalent jobs for which plaintiff failed to apply). Likewise, Robertson-Cheatham did not introduce any evidence regarding the local labor market, and it did not call a labor economist to testify to the availability of substantially similar jobs. Under these circumstances, Robertson-Cheatham could not prevail on its affirmative defense, and this Court may affirm for this reason alone. See Wooldridge v. Marlene Indus., 875 F.2d 540, 548 (6th Cir. 1989) ("A claimant is not required to submit evidence of diligence and reasonable care in seeking employment until defendant has met its burden."). This Court may also affirm because the jury heard enough evidence regarding Markham's job search to reasonably reject Robertson-Cheatham's claim that he had not used "reasonable care and diligence" in seeking a new position. Markham was obligated only to accept employment that was "substantially equivalent" to the job which he had lost. Ford Motor Co. v. EEOC, 458 U.S. 219, 232 (1982); Rasimas, 714 F.2d at 624. The reasonableness of his efforts to find such employment must be evaluated "in light of the individual characteristics of the claimant and the job market." Rasimas, 714 F.2d at 624; see also NLRB v. Westin Hotel, 758 F.2d 1126, 1130 (6th Cir. 1985) (same). As described, supra, Robertson-Cheatham provided no evidence regarding the characteristics of the job market. With respect to Markham, however, the jury heard that he was 72 years old at the time of his termination, and that he had only a tenth grade education. (Jesse Markham, Tr. Vol. II at 7, App. at 81.) He had spent most of his life farming. (Id.) For the nine years prior to his termination, he had driven a fertilizer spreader truck. (Id. at 8, 12, 37, App. at 82, 83, 101.) The jury could reasonably conclude that there were probably few, if any, employment opportunities substantially similar to his job with Robertson-Cheatham available for a person of Markham's age and experience. See Rasimas, 714 F.2d at 624-25 ("older claimants need not exert as much effort as young claimants") (citing Falls Stamping & Welding Co. v. Int'l Union United Auto., Aircraft & Agric. Workers of Am., 667 F.2d 1026 (6th Cir. 1981) (table)); Orzel v. Wauwatosa Fire Dep't, 697 F.2d 743, 757 (7th Cir. 1983) (job-search efforts of 55-year-old plaintiff, "while perhaps 'less than vigorous,' did not constitute a violation of his duty to mitigate damages"); Moore v. Univ. of Notre Dame, 22 F. Supp. 2d 896, 907 (N.D. Ind. 1998) ("options available to [66-year-old plaintiff] are not as great as those available to someone younger"); see also H.R. Rep. No. 95-527, p. 1, at 2 (1977) ("older persons who wish to be re-employed have a much more difficult time finding a new job than younger persons"), quoted in Western Air Lines v. Criswell, 472 U.S. 400, 411 (1985), and in EEOC v. Kentucky State Police Dep't, 860 F.2d 665, 668 (6th Cir. 1988). Evidence showed that Markham applied to three farmers' cooperatives in two states following his termination. All three rejected him. (Jesse Markham, Tr. Vol. II at 49-51, App. at 106-08.) At least one did so after reading Robertson-Cheatham's separation notice, which branded Markham as unsafe and unfit to operate heavy machinery such as that which would be used on a farm. (Id. at 47, 50-51, App. at 105, 107-08.) Contrary to Robertson-Cheatham's contention, see Opening Br. at 6, there is no evidence that any of the farmers' cooperatives to which he unsuccessfully applied encouraged or even suggested that Markham reapply to them in the future. Robertson-Cheatham did not show that there were any other farmers' cooperatives in the surrounding area with which Markham could have sought a job. See Rasimas, 714 F.2d at 625 ("It is well settled that a claimant has not failed to a make a reasonable effort to mitigate damages where he refused to accept employment that is an unreasonable distance from his residence."). Evidence showed that even after being denied employment by Robertson- Cheatham's competitors, Markham remained open to employment opportunities. In late 1999, he accepted two short-term positions cutting hay and stripping tobacco. (Jesse Markham at Tr. 51-52, App. at 108-09.) When he learned of a new opportunity in 2001 with Agri Alliance, he took the job. (Id. at 140, App. at 131.) Even Robertson-Cheatham has admitted that the extent of Markham's job search was a fact-intensive question. In its motion for remittitur, Robertson- Cheatham said that "substantial evidence" would support any of four findings, ranging from a finding that Markham had sought work for only one month following his termination to a finding that he had sought part-time work for the entire two year backpay period. (R.110, Memo at 12 n.3, App. at 45.) The district court correctly observed, "The mere fact that Defendant proposes four different remittitur standards indicates how fact intensive the jury calculation was." (R.115, Memo at 8, App. at 73.) Looking at the evidence in the light most favorable to the EEOC, and drawing all reasonable inferences in the EEOC's favor, see Williams v. Nashville Network, 132 F.3d 1123, 1130 (6th Cir. 1997), this Court must reject Robertson- Cheatham's contention that no reasonable juror could have found that Markham adequately tried to mitigate his damages. Accordingly, the Court must affirm the district court's denial of judgment as a matter of law and remittitur. CONCLUSION The district court correctly refused to set aside the jury's verdict because the verdict rests on a reasonable interpretation of the evidence. Based on the evidence presented at trial, the jury was reasonable in concluding that Markham had not voluntarily withdrawn from the workforce and that Robertson-Cheatham had not proved its affirmative defense of failure to mitigate. For the reasons stated above, the EEOC respectfully urges this Court to affirm the district court's denial of judgment as a matter of law and remittitur. Respectfully submitted, ERIC S. DREIBAND General Counsel LORRAINE C. DAVIS Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ________________________________ GAIL S. COLEMAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7034 Washington, D.C. 20507 (202) 663-4055 Addendum DESIGNATION OF APPENDIX CONTENTS The EEOC, pursuant to Sixth Circuit Rule 28(d), hereby designates the following filings in the district court's record as items to be included in the joint appendix: Description of Item Date Filed in District Court Record Entry Number Robertson-Cheatham's Memo in Support of Post- Judgment Motions, pages 12-13 7/29/03 110 Order Denying Robertson-Cheatham's Post-Judgment Motions 9/5/03 116 Description of Proceeding Date Filed in District Court Transcript Page Numbers Trial held 7/15/03-7/17/03 Testimony of Jesse Markham Closing Argument of Robertson-Cheatham 7/25/03 1/6/04 Vol. II at 7, 12, 37-38, 40, 45, 50-53, 59 Vol. III at 356 Additionally, the EEOC objects to Robertson-Cheatham's stated intent to include excerpts of Walter Markham's deposition in the joint appendix, as these excerpts were not part of the trial record. CERTIFICATE OF SERVICE I hereby declare that I filed the original plus six copies of the foregoing, signed brief with the Court this 10th day of March, 2004, by first-class mail, postage pre-paid. I further declare that I served two copies of the foregoing brief this 10th day of March, 2004, by first-class mail, postage pre-paid, to the following counsel of record: Charles R. Ray 211 Third Avenue, North Nashville, TN 37219 ________________________________ GAIL S. COLEMAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7034 Washington, D.C. 20507 (202) 663-4055 TABLE OF AUTHORITIES Cases Cline v. Roadway Express, Inc., 689 F.2d 481 (4th Cir. 1982) . . . . . .17 Coleman v. City of Omaha, 714 F.2d 804 (8th Cir. 1983) . . . . . . . . .17 Conwood Co. v. United States Tobacco Co., 290 F.3d 768 (6th Cir. 2002), cert. denied, 537 U.S. 1148 (2003) . . . . . . .11, 16 EEOC v. Gurnee Inn Corp., 914 F.2d 815 (7th Cir. 1990) . . 17, 18 EEOC v. Kentucky State Police Dep't, 860 F.2d 665 (6th Cir. 1988)21 Ford Motor Co. v. EEOC, 458 U.S. 219 (1982) . . . . . . . . . . . . . .19 Ford v. Nicks, 866 F.2d 865 (6th Cir. 1989) . . . . . . . . . . . . 17-18 Garcia v. Am. Marine Corp., 432 F.2d 6 (5th Cir. 1970) . . . . . . . . .12 Haygood v. Auto-Owners Ins. Co., 995 F.2d 1512 (11th Cir. 1993) . . . . . . 12 Jackson v. Shell Oil Co., 702 F.2d 197 (9th Cir. 1983) . . . . . . . . .17 Johnson v. Cambridge Indus., 325 F.3d 892 (7th Cir.), cert. denied, 124 S. Ct. 535 (2003). . . . . . . . . . . . . . 13 K & T Enters. v. Zurick Ins. Co., 97 F.3d 171 (6th Cir. 1996) . . . . .13 Kirsch v. Fleet St., Ltd., 148 F.3d 149 (2d Cir. 1998) . . . . . . . 15-16 Meyers v. City of Cincinnati, 14 F.3d 1115 (6th Cir. 1994) . . . . . . .17 Moore v. Univ. of Notre Dame, 22 F. Supp. 2d 896, 907 (N.D. Ind. 1998) . . . . . . . . . . . 20 More v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073 (6th Cir. 1999) . . . . . . . . . . . . . . . . . . .11, 16 NLRB v. Westin Hotel, 758 F.2d 1126 (6th Cir. 1985) . . . . . . . . 19-20 Orzel v. Wauwatosa Fire Dep't, 697 F.2d 743 (7th Cir. 1983) . . . . . .20 Rasimas v. Michigan Dep't of Mental Health, 714 F.2d 614 (6th Cir. 1983) . . . . . . . . . . . . . . . 15, 17, 19-21 Strickland v. Owens Corning, 142 F.3d 353 (6th Cir. 1998) . . . . . . .11 Stults v. Conoco, Inc., 76 F.3d 651 (5th Cir. 1996) . . . . . . . . . .13 Tramill v. UPS, 2001 WL 278697, Nos. 99-6297 & 99-6298, 10 Fed. Appx. 250 (6th Cir. Mar. 12, 2001) (unpublished) . .18-19 Western Air Lines v. Criswell, 472 U.S. 400 (1985) . . . . . . 21 Williams v. Nashville Network, 132 F.3d 1123 (6th Cir. 1997) . . . . . .22 Wooldridge v. Marlene Indus., 875 F.2d 540 (6th Cir. 1989) . . . . . . .19 Statutes 28 U.S.C. 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Age Discrimination in Employment Act, 29 U.S.C. 621 et seq. . . .iii, 1 Miscellaneous H.R. Rep. No. 95-527 (1977) . . . . . . . . . . . . . . . . . . . . 20-21 Fed. R. App. P. 4(a)(1). . . . . . . . . . . . . . . . . . . . .2 6th Cir. R. 28(c). . . . . . . . . . . . . . . . . . . . . . .iii