       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2     Moore v. Freeman, et al.              Nos. 01-6372/6536
   ELECTRONIC CITATION: 2004 FED App. 0014P (6th Cir.)
               File Name: 04a0014p.06                                         _________________
                                                                                   COUNSEL
UNITED STATES COURT OF APPEALS
                                                          ARGUED: Michael A. McMahan, NELSON, McMAHAN
              FOR THE SIXTH CIRCUIT                       & NOBLETT, Chattanooga, Tennessee, for Defendants.
                _________________                         Reuben N. Pelot IV, EGERTON, McAFEE, ARMISTEAD &
                                                          DAVIS, Knoxville, Tennessee, for Plaintiff. ON BRIEF:
CHARLES W. MOORE ,                X                       Michael A. McMahan, Kenneth O. Fritz, NELSON,
 Plaintiff-Appellee (01-6372);     -                      McMAHAN & NOBLETT, Chattanooga, Tennessee, for
                                   -                      Defendants. Reuben N. Pelot IV, Ronald T. Hill, EGERTON,
Plaintiff-Appellant (01-6536),                            McAFEE, ARMISTEAD & DAVIS, Knoxville, Tennessee,
                                   -  Nos. 01-6372/6536
                                   -                      for Plaintiff.
            v.                      >
                                   ,                                          _________________
                                   -
MOSES FREEMAN, in his              -                                              OPINION
individual and official            -                                          _________________
capacities, and THE CITY OF        -
CHATTANOOGA ,                      -                        MARTHA CRAIG DAUGHTREY, Circuit Judge. The
        Defendants-Appellants -                           defendants, Moses Freeman and the City of Chattanooga,
                                   -                      appeal from a jury verdict awarding the plaintiff, Charles
                    (01-6372); -                          Moore, back pay and damages for emotional and mental
         Defendants-Appellees -                           distress, based on his claim of retaliation under the Fair Labor
                    (01-6536). -                          Standards Act, 29 U.S.C. §§ 201 – 219 (FLSA). The
                                   -                      defendants claim (1) that there was insufficient evidence to
                                   -                      support the jury’s finding that they retaliated against Moore,
                                 N                        (2) that damages for emotional and mental distress are not
       Appeal from the United States District Court       recoverable under the applicable provision of the FLSA, and
  for the Eastern District of Tennessee at Chattanooga.   (3) that the verdict was excessive. Because we conclude that
  No. 00-00072—R. Allan Edgar, Chief District Judge.      the evidence of retaliation was sufficient to support the
                                                          verdict and that damages for emotional and mental distress
               Argued: October 21, 2003                   were properly recovered under the Act, we affirm the district
                                                          court’s judgment sustaining the jury verdict in the plaintiff’s
         Decided and Filed: January 13, 2003              favor.

Before: KEITH, DAUGHTREY, and GILMAN, Circuit               On cross-appeal, the plaintiff contends that the district court
                   Judges.                                erred in reducing his request for attorney’s fees by five-sixths
                                                          on the theory that he had prevailed on only one of his six

                           1
Nos. 01-6372/6536             Moore v. Freeman, et al.       3    4    Moore v. Freeman, et al.             Nos. 01-6372/6536

claims. This use of a mathematical formula constituted an         allegations. Thomas did so but concluded to his own
abuse of discretion under existing Sixth Circuit precedent and    satisfaction that the work environment was not hostile.
will require a remand for correction. The plaintiff also
contends that the damages should be doubled as liquidated            According to Freeman, by April 1998 the office was in
damages, but we conclude that this issue is not properly          such turmoil that he felt compelled to take some action to
before us on appeal.                                              regain control. Concluding that the problems had begun
                                                                  about the time that Moore, Hutson, and Sheats had started
  I. FACTUAL AND PROCEDURAL BACKGROUND                            working in the housing department, Freeman decided to fire
                                                                  all three of them. Before he could carry out this plan,
   Plaintiff Charles Moore was hired by the City of               however, Hutson told Freeman she was quitting, and Freeman
Chattanooga in October 1997 as a code inspector in the city’s     placed her on two weeks paid administrative leave. He later
housing division. His initial annual salary, and that of Joseph   testified that he took this action because he wanted to
Sheats, who started in the same position on the same day as       terminate all three employees collectively and because he was
Moore, was $20,777. Also hired as a code inspector on that        worried Hutson was “building a case against the city.”
day was Mary Hutson, at a starting salary of $26,751. Hutson      Around the same time, Freeman directed Thomas to extend
is a white woman; Moore and Sheats are both black men. The        the probationary periods for Moore, Sheats, and Hutson an
defendant, Moses Freemen, who was the department’s                additional 90 days beyond the normal six-month period
administrator at the time the three new hires began, claimed      imposed on new employees. Freeman apparently accepted
that Hutson was paid more because of her prior work               Hutson’s resignation on April 28, 1998. Two days later, he
experience and training and because she had turned down the       fired Moore, who then remained unemployed for
job at the original salary. On the other hand, plaintiff Moore    approximately four months before securing a new, better-
later testified that when he asked whether the salary was         paying job.
negotiable, he was told it was not.
                                                                    At trial, Moore testified that the experience of being fired
   Several months later, when Moore learned of the disparity      was “demoralizing,” like being “slapped in the face.” He said
between his and Hutson’s salaries, he raised the issue with       that he had worried about paying the family’s bills and that he
Freeman at a February 1998 staff meeting and was told by          lost his health insurance and had to pull his children out of
Freeman that he would work to get Moore’s salary raised.          their soccer league because he feared that they might get
Before that meeting, Hutson had complained to Freeman that        injured at a time when he had no insurance coverage. He also
she was being mistreated by some of her co-workers. She           testified that the stress of having lost his job affected his
complained again after the meeting and also reported to her       relationship with his children – one of whom drew a picture
direct supervisor, Dan Thomas, that she felt that other people    of him as a monster – and with his wife. Moore’s wife
in the office resented her and that she was caught in a hostile   testified that Moore had trouble sleeping during the period he
work environment. In particular, she complained of some           was between jobs, and a friend of his testified that Moore
interactions she had had with some of her black co-workers,       became short-tempered, lost his appetite, and began having
including both Moore and Sheats, that she felt were negative.     neck pains.
Thomas reported the latter conversation to Freeman, who
directed Thomas to conduct an investigation into Hutson’s           Moore and Sheats had originally filed a joint complaint in
                                                                  federal court against the City of Chattanooga and several city
Nos. 01-6372/6536             Moore v. Freeman, et al.      5    6     Moore v. Freeman, et al.              Nos. 01-6372/6536

officials under the FLSA, the Equal Pay Act, 29 U.S.C.           therefore awarded Moore one-sixth of the attorney’s fees and
§ 206(d), Title VII of the Civil Rights Act of 1964, 42 U.S.C.   costs he had requested, on the theory that he had prevailed on
§ 2000e – 2000e-17, and the Tennessee Human Rights Act,          only one of the six claims he brought in the original
Tenn. Code Ann. §§ 4-21-101 – 1004. However, Sheats              complaint. The defendants have appealed the jury verdict and
entered a voluntary dismissal, and Moore proceeded to trial      the damage award approved by the district court. The
alone. At its conclusion, the district court granted the         plaintiff has cross-appealed the calculation of attorney’s fees
defendants’ motion for judgment as a matter of law in part,      and costs.
and the only claims that went to the jury were Moore’s claims
against Freeman in his official capacity and against the City                          II. DISCUSSION
under the FLSA, the Equal Pay Act, and the Tennessee
Human Rights Act for sex discrimination. The jury found          A. Sufficiency of the Evidence
that defendants did not violate the Equal Pay Act or
discriminate against Moore based on sex. It did find,               The defendants assert that the plaintiff did not sufficiently
however, that the defendants violated the FLSA by                prove that he engaged in statutorily-protected activity, that his
discharging Moore in retaliation for his complaints about        dismissal was related to the protected activity, or that the
unequal pay and awarded him $10,232 in back pay and              defendants’ proffered reason why the plaintiff was dismissed
$40,000 for mental and emotional distress.                       was pretextual, addressing each of these contentions under the
                                                                 burden-shifting analysis set out in McDonnell Douglas Corp.
   The City then filed a motion for remittitur on the back pay   v. Green, 411 U.S. 792 (1973), and urging that we find that
award and asked that the remainder of the award be set aside,    the plaintiff failed to establish a prima facie case of
contending that mental and emotional damages are not             retaliation. We have held, however, that “after a trial on the
authorized by the FLSA. Moore filed a request for attorney’s     merits, a reviewing court should not focus on the elements of
fees and costs and moved to alter or amend judgment by           the prima facie case but should assess the ultimate question of
doubling the compensatory damages as liquidated damages.         discrimination.” Kovacevich v. Kent State Univ., 224 F.3d
The district court reduced the back-pay award to $7,200 but      806, 821 (6th Cir. 2000) (citing EEOC v Avery Dennison
denied the rest of the defendants’ motion, holding that          Corp., 104 F.3d 858, 862 (6th Cir. 1997)). We have,
damages for mental and emotional distress due to retaliation     nevertheless, recognized that whether the plaintiff made out
can be recovered under the FLSA and finding that the damage      a prima facie case may be “relevant to our review of that
award of $40,000 was not excessive. The court also denied        ultimate question.” Gray v. Toshiba Am. Consumer Prods.,
Moore’s motion to alter or amend the judgment, noting that       Inc., 263 F.3d 595, 599 (6th Cir. 2001).
an award of damages to employees who suffered from
retaliation was compensatory in nature and that liquidated         Moore was clearly engaged in statutorily-protected activity,
damages would not further this purpose. Finally, the court       given the fact that the anti-retaliation provisions of the FLSA
reserved ruling on the plaintiff’s motion for attorney’s fees    can be triggered by informal complaints, see EEOC v. Romeo
and asked for further documentation, specifically on the         Cmty. Schs., 976 F.2d 985, 989-90 (6th Cir. 1992), and that
amount of time spent on legal issues and whether the work        the defendants do not dispute that Moore protested to
was expended on behalf of Moore or Sheats. Moore                 Freeman about his unequal pay. Although the defendants
submitted more information, but the district court found that    continue to argue that the issue of Moore’s pay was resolved
it was still not sufficiently specific. The district judge       by the time Moore was fired, that argument goes to whether
Nos. 01-6372/6536             Moore v. Freeman, et al.        7   8    Moore v. Freeman, et al.              Nos. 01-6372/6536

the complaint was the cause of the termination, not to whether    The question here is whether this broad provision, which was
it was statutorily protected.                                     added to the FLSA in 1977, see Fair Labor Standards
                                                                  Amendments of 1977, Pub. L. No. 95-151, §10, 91 Stat.
   Viewing the evidence in the light most favorable to Moore,     1245, 1252, allows for damages for mental and emotional
we conclude that a jury could reasonably have found that he       distress. We conclude that it does.
was discharged in retaliation for his complaints. Moore was
fired less than three months after protesting his unequal pay       Although the provision does not explicitly allow damages
in spite of the fact that his immediate supervisor found him      for emotional injuries, a plain reading of the text of the
competent at his job and opposed his dismissal. The jury may      provision indicates that it does not limit the type of damages
have interpreted Freeman’s calling Moore “incorrigible” at        that are available. As the Seventh Circuit pointed out in
trial, as well as testimony that Freeman asked police to be on    Travis v. Gary Community Health Center, Inc., 921 F.2d 108,
standby when he fired Moore, to mean that he thought Moore        112 (7th Cir. 1990), “the 1977 amendment does away with
was a troublemaker due to his complaints about his unequal        the old limitations without establishing new ones.” It allows
pay. The jury may also have found Freeman’s explanation           any legal or equitable relief that is appropriate to further the
that he intended to fire Moore, Sheats, and Hutson                purposes of § 215(a)(3), one of which is to ensure that
collectively to be pretextual, based on evidence that Freeman     employees feel free to report grievances under the FLSA. See
had placed Hutson on paid leave when she first tried to resign    Mitchell v. Robert De Mario Jewelry, Inc., 361 U.S. 288, 292
and that Hutson had complained about a number of                  (1960) (“Plainly, effective enforcement could . . . only be
employees besides Moore and Sheats, yet those other               expected if employees felt free to approach officials with their
employees were not terminated. In short, although the             grievances. This [is the end that] the prohibition of
evidence to support the jury’s verdict was not overwhelming,      [§215)a)(3)] against discharges and other discriminatory
we cannot say that it was legally insufficient.                   practices was designed to serve.”). The statutory scheme
                                                                  contemplates compensation in full for any retaliation
B. The Availability of Damages for Mental and                     employees suffer from reporting grievances, and there is no
   Emotional Distress                                             indication that it would not include compensation for
                                                                  demonstrable emotional injuries, as well as economic ones.
  Damages for violation of the anti-retaliation provisions of
the FLSA are controlled by 29 U.S.C. § 216(b), which                The delineation within § 216(b) of potential forms of relief
provides in pertinent part:                                       that are compensatory – “employment, reinstatement,
                                                                  promotion, and the payment of wages lost” – further supports
  Any employer who violates the provisions of section             the conclusion that “the evident purpose of section 216(b) is
  215(a)(3) of this title shall be liable for such legal or       compensation.” Snapp v. Unltd. Concepts, Inc., 208 F.3d
  equitable relief as may be appropriate to effectuate the        928, 934 (11th Cir. 2000), cert. denied, 532 U.S. 975 (2001);
  purposes of section 215(a)(3) of this title, including          see also Lanza v. Sugarland Run Homeowners Ass’n, Inc., 97
  without limitation employment, reinstatement,                   F.Supp.2d 737, 740 (E.D. Va. 2000) (“This scheme makes
  promotion, and the payment of wages lost and an                 clear that § 216(b) is designed to compensate the aggrieved
  additional equal amount as liquidated damages.                  employee . . . .”). The defendants contend that damages for
                                                                  emotional distress are not similar in type to the listed forms
                                                                  of relief and argue that under the doctrine of ejusdem generis,
Nos. 01-6372/6536              Moore v. Freeman, et al.        9    10   Moore v. Freeman, et al.            Nos. 01-6372/6536

such damages should not be found to be recoverable under              There is no claim here that the verdict resulted from
§ 216(b). However, like the forms of relief mentioned,              passion, bias, or prejudice. The question thus becomes
damages for mental anguish are intended to compensate the           whether the verdict was so clearly excessive as to ”shock the
injured party for harm suffered.                                    judicial conscience.” Though the award could be reasonably
                                                                    described as fulsome, we cannot say that it is clearly
   As noted by the Seventh Circuit, which is the only other         excessive. The plaintiff in this case submitted evidence that
circuit to address at length the question of whether the            the stress of losing his job demoralized him, strained his
provision of §216(b) at issue here provides for damages for         relationships with his wife and children, and negatively
emotional distress, the provision allows for “appropriate”          affected his sleeping habits and appetite.
relief, and “compensation for emotional distress . . . [is]
appropriate for intentional torts such as retaliatory discharge.”   D. Liquidated Damages
Travis, 921 F.2d at 112. In addition, both the Eighth and
Ninth Circuits have allowed damages for emotional distress             The plaintiff claims that the plain language of § 216(b)
to stand without directly addressing the issue. See Broadus         requires that he be awarded an equal additional amount over
v. O.K. Indus., Inc., 238 F.3d 990, 992 (8th Cir. 2001);            and above his back pay and compensatory damages as
Lambert v. Ackerley, 180 F.3d 997, 1011 (9th Cir. 1999).            liquidated damages. He thus asks the court to reverse the
Although the circuits are divided on the question of whether        district court’s order on liquidated damages and amend the
the statute permits punitive damages, compare Travis , 921          judgment as a matter of law to award him $94,400 rather than
F.2d at 111-12, with Snapp, 208 F.3d at 934, consensus on the       $47,200. The defendants, on the other hand, argue that, at
issue of compensatory damages for mental and emotional              most, the plaintiff would be entitled to liquidated damages
distress seems to be developing. We now join our sister             only on the back pay award, since the doubling of any award
circuits in finding that the damages awarded by the jury in         for mental and emotional injuries would be punitive and
this case fall within the ambit of § 216(b).                        contrary to the purpose of the FLSA.

C. The Size of the Jury’s Award for Mental and                        We conclude that this issue is not properly before this
   Emotional Distress                                               court. Moore’s notice of appeal indicates that Moore is
                                                                    appealing from the order of the district court entered on
  The district court upheld the jury’s award of $40,000 for         November 9, 2001. The sole issue considered in that order
mental and emotional distress, a ruling that we review for          was the amount of attorney’s fees Moore was to be awarded.
abuse of discretion. See Sallier v. Brooks, 343 F3d. 868, 880       The issue of whether Moore was entitled to liquidated
(6th Cir. 2003) (citing Gregory v. Shelby County, Tenn., 220        damages was decided in a previous order, dated September
F.3d 433, 443) (6th Cir. 2000)). “A trial court is within its       25, 2001. Although the defendants appealed from that order,
discretion in remitting a verdict only when, after reviewing all    Moore did not and, under well-settled precedent, he is barred
evidence in the light most favorable to the awardee, it is          from now raising this issue:
convinced that the verdict is clearly excessive, resulted from
passion, bias or prejudice; or is so excessive or inadequate as       A party who does not appeal from a final decree of the
to shock the judicial conscience of the court.” Sallier, 343          trial court . . . may not attack the decree with a view
F.3d at 880, (quoting Gregory, 220 F.3d at 443).                      either to enlarging his own rights thereunder or of
                                                                      lessening the rights of his adversary, whether what he
Nos. 01-6372/6536             Moore v. Freeman, et al.      11    12    Moore v. Freeman, et al.               Nos. 01-6372/6536

  seeks is to correct an error or to supplement the decree        U.S. 424 (1983). First, it is necessary to see whether the
  with respect to a matter not dealt with below. But it is        claims on which the plaintiff won and the claims on which the
  likewise settled that the appellee may, without taking a        plaintiff lost are related. If they employ “a common core of
  cross-appeal, urge in support of a decree any matter            facts or [are] based on related legal theories,” id. at 435, the
  appearing in the record, although his argument may              court should consider “the significance of the overall relief
  involve an attack upon the reasoning of the lower court         obtained by the plaintiff in relation to the hours reasonably
  or an insistence upon matter overlooked or ignored by it.       expended on the litigation.” Id. The Supreme Court noted
                                                                  that there was no “precise formula” for determining a
United States v. Am. Ry. Express Co., 265 U.S. 425, 435           reasonable fee, id. at 436-37, and stressed the district court’s
(1924); see also El Paso Natural Gas Co. v. Neztsosie, 526        discretion in this area, id. at 437, but it specifically rejected a
U.S. 473, 479-80 (1999) (citing to Am. Ry. Express and            “mathematical approach” that compared the number of issues
discussing whether cross-appeal requirement is                    on which the plaintiff prevailed to the total number of issues
jurisdictional). As we have previously put it, an appellee may    in the case, finding that such an approach was not helpful in
raise issues as a “shield” but not as a “sword.” Dole v. Briggs   setting a reasonable fee. Id. at 435 n.11. The Court noted
Constr. Co., Inc., 942 F.2d 318, 320 (6th Cir. 1991).             that litigants often raise alternative grounds and that rejection
                                                                  of some of those grounds should not lead to a reduced fee if
E. Attorney’s Fees                                                the plaintiff has been successful. Id. at 435. The Sixth
                                                                  Circuit has followed suit in finding that attorney’s fees should
   We review a district court’s award of attorney’s fees for      not be reduced by the ratio of successful claims to claims
abuse of discretion. See Fegley v. Higgins, 19 F.3d 1126,         overall. See Phelan, 8 F.3d at 374 (6th Cir. 1994).
1134 (6th Cir. 1994). An abuse of discretion can be found
when the lower court “relies on clearly erroneous findings of       Under the Hensley analysis, the attorney seeking
fact, or when it improperly applies the law or uses an            compensation retains the burden of documenting the number
erroneous legal standard” or “when the reviewing court is         of hours spent on the case and of maintaining records in a
firmly convinced that a mistake has been made.” Adcock-           way that would allow a court to determine how much time
Ladd v. Sec’y of Treasury, 227 F.3d 343, 348-49 (6th Cir.         was spent on each claim. See Hensley, 461 U.S. at 437. At
2000) (quoting Phelan v Bell, 8 F3d 369, 373 (6th Cir.            the same time, the district court is required to give a clear
1993)). Attorney’s fees must be set in amount that is             explanation of the fee award. See id; see also Wooldridge v.
“reasonable,” 29 U.S.C. § 216(b), and in recent times the         Marlene Indus. Corp., 898 F.2d 1169, 1176 (6th Cir. 1990)
starting point has been a “lodestar” calculation – the product    (“A district court should state with some particularity which
of the number of hours reasonably spent on the case by an         of the claimed hours the court is rejecting, which it is
attorney times a reasonable hourly rate. See Adcock-Ladd,         accepting, and why.”).
227 F.3d at 349. That amount may then be adjusted upwards
or downwards, as the district court finds necessary under the       In this case, the district court did not believe the plaintiff
circumstances of the particular case.                             had adequately separated work conducted on successful
                                                                  claims from work conducted on unsuccessful claims.
  The Supreme Court has given guidance on the extent to           However, the district court did not provide a clear explanation
which a fee should be adjusted when a plaintiff wins on some      of the hours it excluded because the plaintiff did not specify
claims and loses on others. See Hensley v. Eckerhart, 461         the claims to which they related. Instead, it simply reduced
Nos. 01-6372/6536            Moore v. Freeman, et al.     13

the amount of attorney’s fees Moore requested by five-sixths,
without considering the extent to which the claims were
interrelated or discussing how successful Moore was in the
context of the case overall. In doing so, the district court
abused its discretion.
                    III. CONCLUSION
  For the reasons set out above, we AFFIRM the district
court’s judgment awarding plaintiff back pay and damages for
mental and emotional distress, but VACATE the district
court’s award of attorney’s fees and REMAND the case for a
redetermination on this issue.
