               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                                April 20, 2016 Session


DENNIS VAWTER v. E. I. DU PONT DE NEMOURS AND COMPANY

                Appeal from the Circuit Court for Shelby County
                 No. CT-002424-13 Robert L. Childers, Judge
                       ______________________________

               No. W2015-00874-COA-R3-CV – Filed June 2, 2016
                      ______________________________

A 59-year old plaintiff who lost his job as a chemical operator, after working in that
position for over 37 years, applied for the position of general operator with another
company. Twelve individuals were hired by the other company, all of whom were
younger than the 59-year old, and most of whom were less experienced. The plaintiff
filed an age discrimination complaint against the company. The case was tried by a jury,
and the jury returned a verdict for the plaintiff, awarding him compensatory damages of
$100,000. The trial court awarded the plaintiff front pay in addition to the compensatory
damage award. The company appealed, and we affirm the trial court‟s judgment.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Tennessee Circuit Court
                                     Affirmed

ANDY D. BENNETT, J., delivered the opinion of the court, in which KENNY W.
ARMSTRONG and BRANDON O. GIBSON, JJ., joined.

James C. Bradshaw, III, and Elise C. Hofer, Nashville, Tennessee, for the appellant, E. I.
du Pont de Nemours and Company.

Dan M. Norwood, Memphis, Tennessee, for the appellee, Dennis Vawter.

                                      OPINION

                     I. FACTUAL AND PROCEDURAL BACKGROUND
       Dennis Vawter worked for a chemical plant owned by Velsicol Chemical
Corporation for 37 ½ years before losing his job in December 2011, when the plant
closed. In March 2012, when he was 59 years old, Mr. Vawter applied for a general
operator position at a plant owned by E. I. du Pont de Nemours and Company (“du
Pont”). Out of 421 who applied for the job, Mr. Vawter was among the 140 applicants
selected to take the general operator exam. Mr. Vawter passed the exam along with 77
others. Du Pont invited 34 of these individuals to interview for the general operator
position, including Mr. Vawter. Du Pont hired twelve of the 34 candidates interviewed,
but Mr. Vawter was not one of these twelve. One of the individuals hired was Chris
Davis, who was at least twenty years younger and less experienced than Mr. Vawter and
was someone with whom Mr. Vawter had worked at Velsicol Chemical. Mr. Vawter
continued his search for employment and was ultimately hired as an operator by Veolia
Water North America in September 2012. Mr. Vawter was earning approximately
$25.00 an hour at Velsicol Chemical before the plant was shut down, and Veolia Water
paid him just $14.50 an hour.1 If he had been hired by Du Pont, Mr. Vawter would have
had a starting pay rate of $24.57 an hour.
       Mr. Vawter filed a complaint against du Pont in June 2013 alleging age
discrimination pursuant to the Tennessee Human Rights Act (“THRA”), Tenn. Code
Ann. § 4-21-101 et seq. Du Pont defended its decision not to offer the position to Mr.
Vawter by explaining that Mr. Vawter did not interview well and that its decision had
nothing to do with his age. Mr. Vawter asserts that he was among the more experienced
of the applicants and the only explanation for du Pont‟s decision not to hire him was his
age.

        Mr. Vawter‟s case was tried before a jury. Du Pont moved for a directed verdict at
the conclusion of Mr. Vawter‟s presentation of evidence, which the trial court denied.
The jury returned a verdict for Mr. Vawter and awarded him compensatory damages in
the amount of $100,000. Du Pont moved the court to set aside the jury verdict, suggest a
remittitur or, in the alternative, to order a new trial. The trial court denied du Pont‟s
motion, finding that the preponderance of the evidence supported the jury‟s verdict. The
trial court then awarded Mr. Vawter his attorney‟s fees in the amount of $74,200 and
costs and expenses in the amount of $1,607. Mr. Vawter asked the court to order du Pont
to hire him for the general operator position, but the court denied this request. Mr.
Vawter then asked the court to award him front pay. The trial court determined that Mr.
Vawter was entitled to front pay for a period of three years and awarded him an
additional $112,120.07.

      Du Pont appeals the trial court‟s awards. It argues (1) the jury‟s verdict that Mr.
Vawter was discriminated against when he was not hired in 2012 should be set aside
because it was not supported by material evidence; (2) the trial court erred in denying its
motion for directed verdict or motion for a new trial on the basis that Mr. Vawter failed to
produce material evidence of age discrimination; (3) the trial court erred in denying du
Pont‟s motion for remittitur because the jury‟s award for compensatory damages is

1
 Mr. Vawter was given a $.15 raise once he had been at Veolia Water for a few months, and at the time of
trial was being paid $15.02 an hour.
                                                   2
excessive and is not supported by material evidence; and (4) the trial court‟s award of
front pay is excessive, punitive, and unwarranted.

                                II. STANDARD OF REVIEW

        Mr. Vawter‟s case was heard by a jury, and the jury awarded Mr. Vawter
$100,000 based on its finding that du Pont engaged in age discrimination when it failed to
hire Mr. Vawter for the general operator position. Tennessee Rule of Appellate
Procedure 13(d) states: “Findings of fact by a jury in civil actions shall be set aside only
if there is no material evidence to support the verdict.” An appellate court‟s review of a
jury verdict is thus limited to determining whether any “material evidence” supports the
verdict. Ferguson v. Middle Tenn. State Univ., 451 S.W.3d 375, 380 (Tenn. 2014); see
Potter v. Ford Motor Co., 213 S.W.3d 264, 269 (Tenn. Ct. App. 2006) (citing Reynolds v.
Ozark Motor Lines, Inc., 887 S.W.2d 822, 823 (Tenn. 1994); Whaley v. Rheem Mfg. Co.,
900 S.W.2d 296, 300 (Tenn. Ct. App. 1995)) (“Where the record contains material
evidence supporting the verdict, the judgment based on that verdict will not be disturbed
on appeal.”). When determining whether evidentiary support exists to support a jury‟s
verdict, an appellate court is “very deferential toward the verdict.” Duran v. Hyundai
Motor Am., 271 S.W.3d 178, 204 (Tenn. Ct. App. 2008). In determining whether
material evidence supports a jury‟s verdict in a case, the Tennessee Supreme Court has
said:

       [W]e “(1) take the strongest legitimate view of all the evidence in favor of
       the verdict; (2) assume the truth of all evidence that supports the verdict;
       (3) allow all reasonable inferences to sustain the verdict; and (4) discard all
       [countervailing] evidence.”
Ferguson, 451 S.W.3d at 380 (quoting Creech v. Addington, 281 S.W.3d 363, 372 (Tenn.
2009)); see also Duran, 271 S.W.3d at 204. The Duran court noted that “[a]ppellate
courts are not a jury of three with the prerogative to re-weigh the evidence, or to
determine where the „truth‟ lies.” Duran, 271 S.W.3d at 205 (citations omitted).
Moreover, appellate courts are not permitted to substitute their judgment for that of the
jury, even when the evidence could have supported a different verdict. Id. (citations
omitted).

                                      III. ANALYSIS

       A. Age Discrimination

       The purpose of the THRA is to protect individuals in Tennessee from
discrimination in employment and public accommodations because of their race, creed,
color, religion, sex, age, or national origin and to protect individuals from housing
discrimination because of their race, creed, color, religion, sex, or national origin. Tenn.

                                             3
Code Ann. § 4-21-101(a)(3). Section 4-21-401(a) of the THRA states that “[i]t is a
discriminatory practice for an employer to . . . [f]ail or refuse to hire . . . any person . . .
because of such individual‟s . . . age . . . .” An individual must be at least forty years old
to establish an unlawful discrimination claim based on age. Tenn. Code Ann. § 4-21-
101(b). The THRA was modeled on the federal anti-discrimination laws, and
“Tennessee‟s courts regularly consult the decisions of their federal counterparts for
guidance when called upon to construe and apply the Tennessee Human Rights Act.”
Wilson v. Rubin, 104 S.W.3d 39, 48 (Tenn. Ct. App. 2002).

        A plaintiff asserting a claim for age discrimination “bears the ultimate burden of
proving that considerations of age not only played a role in but determinatively
influenced the employer‟s decision.” Williams v. Greater Chattanooga Pub. Television
Corp., 349 S.W.3d 501, 509 (Tenn. Ct. App. 2011) (citing Wilson, 104 S.W.3d at 51-52);
see also Tenn. Code Ann. § 4-21-311(e) (stating that plaintiff carries burden of
“establishing a prima facie case of intentional discrimination”). A plaintiff can prove age
discrimination through either direct or indirect evidence of discrimination. Frame v.
Davidson Transit Org., 194 S.W.3d 429, 434 (Tenn. Ct. App. 2005). Direct evidence of
discrimination is not often available. Id. If a plaintiff lacks direct proof of an employer‟s
discrimination, the plaintiff can satisfy his or her burden of proof by presenting indirect
evidence of discrimination by establishing that:

       “(1) [he or] she was a member of the protected class” (at least 40 years old);
       “(2) [he or] she applied for and was qualified for the position” in question;
       “(3) [he or] she was considered for and denied the position; and (4) [he or]
       she was rejected in favor” of a substantially younger person with similar
       qualification.
Trudeau v. Dep’t of Labor and Workforce Dev., W2003-01920-COA-R3-CV, 2004 WL
2439404, at *3 (Tenn. Ct. App. Oct. 26, 2004) (quoting Bush v. Dictaphone Corp., 161
F.3d 363, 368 (6th Cir.1998); Betkerur v. Aultman Hospital Assoc., 78 F.3d 1079, 1095
(6th Cir.1996)); see also Williams, 349 S.W.3d at 510 (stating same sort of proof required
to establish liability for unlawful termination as for failure to hire). If a plaintiff provides
evidence of each of these four factors, the defendant must then “proffer a legitimate,
nondiscriminatory reason for its actions” not hiring the plaintiff. Trudeau, 2004 WL
2439404, at *3; see Tenn. Code Ann. § 4-21-311(e) (providing that if plaintiff establishes
prima facie case, defendant must show employment decision was legitimate and not
discriminatory). If the defendant meets this burden, the plaintiff must then “rebut this
with evidence that the asserted nondiscriminatory reason is mere pretext for
discrimination.” Trudeau, 2004 WL 2439404, at 3 (citing Bush, 161 F.3d at 369); see
Tenn. Code Ann. § 4-21-311(e) (if defendant rebuts presumption of discrimination,
plaintiff must show defendant‟s alleged nondiscriminatory explanation was pretextual
and not real reason).


                                               4
       Mr. Vawter presented evidence that he is in the class of protected individuals, that
he applied for and was qualified for the general operator position, that he was considered
for and denied the position, and that a younger (and less experienced) individual named
Chris Davis was hired. Mr. Vawter testified that he had worked with Mr. Davis at
Velsicol Chemical for two to three years, before the Velsicol plant was shut down, and
that Mr. Davis was about twenty years younger than he was. Mr. Vawter testified that
none of the twelve individuals du Pont hired for the General Operator position had as
many years of experience as he did working as a chemical operator and that all of them
were younger than he was. Four of the twelve candidates du Pont hired had no chemical
operator experience at all.

      Mr. Vawter testified about the final step of the hiring process, which consisted of
two hour-long interviews by two different panels:

      Q:     [W]ere you familiar with the questions and situations they were
      presenting to you in the interview?
      A:     I was.
      Q:      Anything really shock you that you were totally unfamiliar with?
      A:     No.
      Q:     Was it about chemical operator type information?
      A:      Yes, it was. It involved just different scenarios, what you‟d do in
      certain situations, maybe in an emergency or how you would handle certain
      situations that might happen out in the plant or certain situations [you]
      might come across in your prior experiences.
      Q:     Okay. And did you get presented with any situations you never had
      heard about or addressed in your 37 ½ years working as chemical operator
      at Velsicol?
      A:     No.
      Q:     Do you believe you provided satisfactory answers to the panel?
      A:     I believe I did.
      Q:     In both interviews?
      A:     Yes.
      Q:     Did you receive any negative feedback from either one of those
      panels or anybody on the panels?


                                            5
       A:     No.
       Q:      Mr. Vawter, from all the documents you‟ve been able to review on
       the other individuals hired to fill the operator position at Du Pont in 2012 at
       its Millington plant, why do you believe the company didn‟t hire you?
       A:     Well, the only conclusion I could come to was - - I had the 37 ½
       years‟ experience and 25 to 28 of those years was the chemical operator
       position at the Velsicol plant. I thought - - and I was more than qualified
       for that position. It paralleled well with my former chemical operator
       experience so that, basically, I thought I was a shoo-in. And then to learn
       that 12 - - 12 people they did hire, like eight of them were in their 30s and
       four were in their 40s, and I was 59 at that time; that was the only logical
       explanation why I was not hired because I had plenty of experience.
       Du Pont contends that Mr. Vawter was not qualified for the general operator
position because he performed poorly during the interview process, which du Pont
described as “the determining factor in which candidates received job offers.” Brian
Richard Morris was a du Pont employee who was on one of the panels that interviewed
Mr. Vawter, and he testified that age was not a consideration when du Pont made its
hiring decisions. Mr. Morris also testified that the reason du Pont was interested in hiring
so many general operators was because du Pont “anticipated a high level of turnover in
the coming years.” Mr. Morris explained that “the minimum threshold for most
retirement” at du Pont was age 58 ½, which was one year younger than Mr. Vawter was
when he interviewed for the position.

       According to Mr. Morris, Mr. Vawter did not do well in the interview process. He
explained that du Pont did not extend offers to several experienced chemical operators as
a result of their interviews. Mr. Morris testified that experience is important and
constitutes a part of the evaluation of who to hire, but it is not the only criterion. Mr.
Morris elaborated as follows:

              The interview is designed to better understand the depth of their
       experience; you know, can they give us relevant examples and make us feel
       comfortable that, given their years of experience, that they‟ve learned and
       internalized the behaviors and the knowledge that we‟re looking for.
               We‟re also looking for softer skills in the interview process:
       communication; how well do they present ideas; how well do they - - can
       they troubleshoot; can they resolve conflict; can they handle difficult
       situations, stress? You know we handle a lot of hazardous materials, so we
       want people that we are confident can, you know, deal with those chemicals
       and in a safe manner and respond to emergencies if needed and can work in
       a self-managed work environment.

                                             6
                 We don‟t have direct line supervisors on shift with our operators, our
          chemical operators, and oftentimes, that can be a challenge. And someone
          who has experience, they may have gotten line direction from a shift
          supervisor at their previous experience, whereas we have to have a self-
          managed team. So they have to work collaboratively together, you know,
          alone, and make decisions on their own.
       The evidence showed that each of the 34 candidates was interviewed before the
hiring decisions were made and that each candidate was asked the same questions. The
candidates‟ responses were scored on a scale of one to five, where one was the lowest
score and five was the highest score. The highest possible score a candidate could get
was forty. Mr. Vawter scored a seventeen, which was the fourth lowest score of any
candidate who was interviewed. Some members of the interview panels took notes
during the candidates‟ interviews, but those notes were not maintained by du Pont. Mr.
Vawter requested the notes from du Pont during discovery, and du Pont informed Mr.
Vawter that the notes had been “destroyed.” Thus, du Pont‟s proof that Mr. Vawter did
not interview well was limited to testimony from individuals involved with the interviews
and the final interview rating grid indicating each candidates‟ interview score. The only
information included on the rating grid concerning Mr. Vawter was: “Operator at
Velsicol, plant closed down. Was difficult to get any examples to build STARS.”2

       Du Pont contends that Mr. Vawter‟s low interview score constituted a legitimate,
non-discriminatory reason for its decision not to hire him for the general operator
position and that Mr. Vawter failed to introduce evidence demonstrating that its
explanation was pretextual. Mr. Vawter responds that without the interview notes, the
members of the jury were required to assess the testimony and credibility of all of the
witnesses to make a factual determination of how Mr. Vawter performed answering the
interview questions. As Mr. Vawter points out, he testified that he provided satisfactory
answers to both interview panels and that he believed the interviews went well. Mr.
Vawter‟s testimony that the interviews went well is some evidence that du Pont‟s
explanation of why it did not extend Mr. Vawter an offer was pretextual.

       It is not our place to “re-weigh the evidence.” Ferguson, 451 S.W.3d at 380
(citing Flax v. DaimlerChrysler Corp., 272 S.W.3d 521, 532 (Tenn. 2008)). Moreover,
appellate courts cannot “recalibrate the jury‟s preponderance of the evidence

2
    Du Pont‟s witness Pauline Brotsman-Brown explained what a STAR was in the interview context:

          “ST” stands for situation or a task; “A” is for action that the person took; “R” is for
          results that he or she received. So the [candidate‟s] answer has to build a STAR, and so
          if the answer is given and the candidate earns a STAR, then they get a full STAR. And
          when candidates are difficult to get - - have difficulty with building STARs, it means they
          just don‟t present the examples in a way that are very specific and they‟re very
          generalized, or it‟s even difficult to kind of draw information out of them.

                                                      7
assessment.” Id. (citing Barnes v. Goodyear Tire & Rubber Co., 48 S.W.3d 698, 704
(Tenn. 2000)). “Questions concerning the credibility of witnesses, the weight and value
of the evidence, as well as all factual disputes raised by the evidence, are for the trier of
fact; appellate courts do not reweigh the evidence or reevaluate credibility
determinations.” State v. Flake, 88 S.W.3d 540, 554 (Tenn. 2002).

       Applying the standard of review to the evidence presented at trial leads us to
conclude that there was material evidence to support the jury verdict finding du Pont
engaged in age discrimination in failing to offer Mr. Vawter a position as a general
operator.

       B. Compensatory Damages Awarded

        Du Pont argues that the $100,000 the jury awarded as compensatory damages was
excessive and was not supported by material evidence. Mr. Vawter alleged the following
in his complaint:

       As a result of [du Pont‟s] discrimination in hiring, Plaintiff has suffered,
       and will continue to suffer, a loss of considerable pay and benefits, as well
       as mental distress, humiliation and embarrassment, and loss of enjoyment
       of life. Plaintiff avers that he is, therefore, entitled to recover all lost pay
       and benefits, with interest, plus compensatory damages to compensate for
       his injury and make him whole for all losses suffered, including damages
       for mental distress, humiliation and embarrassment, as well as recover his
       attorney‟s fees and expenses.
In his prayer for damages, Mr. Vawter sought his lost pay and benefits as well as
compensatory damages in the amount of $500,000. He presented evidence that the
difference in pay between the amount he would have earned at du Pont and the amount he
was then earning at a less desirable job was $42,991.16. Mr. Vawter also presented
evidence that he suffered embarrassment and humiliation as a result of not being offered
the general operator position that he was certain he was qualified for and then learning
that someone twenty years younger with whom he had worked and knew was less
qualified had been offered the position. Mr. Vawter testified as follows:

       Q:     How did you feel when you first found out that this younger person
       that you knew and had less experience than you . . . was hired at du Pont
       instead of you?
       A:     Well, I mean, it was a great - - it was a great let-down. I mean, I had
       been employed all those years at Velsicol Chemical, and I didn‟t know
       anything else. I worked all my life, and - - and I was striving to find
       employment as soon as I lost my job at Velsicol Chemical back in
       December of 2011.
                                              8
      ...
      I mean, it‟s - - I don‟t know how to explain it, but you know, as a kid when
      you‟re growing up and you‟re playing sports or games, you know, and they
      are picking teams or whatever - - it‟s the only thing I can relate it to, so I‟m
      just going back to childhood - - is when you were the last one picked for the
      team or you wasn‟t picked at all, that‟s how it felt, in a way.
      ...
      Q:    How is - - what did you feel like, as a person at 59 online every day
      looking at all these jobs and applying for jobs and never hearing anything?
      A:     It was humiliating, humiliating and depressing. You know, like I
      said, after working all those years at one place, 37 ½ years at Velsicol, I
      didn‟t know anything else, so when I did lose my job, this was all new to
      me, you know, because I really hadn‟t had to look for a job for that many
      years.
Mr. Vawter further testified that in addition to working full-time at Veolia, he was
required to work overtime. He explained that he generally worked forty to fifty hours
overtime in a two-week period, he was tired all the time now, and he did not have the
energy or time to do things with his family as he would have liked.

       The jury here did not specify how it arrived at the $100,000 award. Du Pont
assumes it awarded Mr. Vawter $57,008.84 for his humiliation and embarrassment based
on Mr. Vawter‟s evidence that he suffered a loss of $42,991.16 in lost wages up to the
time of trial. The THRA specifically provides for the payment of damages to a
complainant asserting unlawful discrimination for injuries caused by the discrimination,
“including humiliation and embarrassment.” Tenn. Code Ann. § 4-21-306(a)(7). “The
amount of such damages is primarily within the ambit of the jury, and is largely
dependent on the jury‟s perception of the personal shame articulated by the discharged
employee.” Barnes v. Goodyear Tire & Rubber Co., No. 2000-01607-COA-RM-CV,
2001 WL 568033, at *9 (Tenn. Ct. App. May 25, 2001). In another case where a plaintiff
was discharged and filed an age discrimination case against his employer, the Court of
Appeals addressed the proper amount of damages to be awarded for humiliation and
embarrassment:

      The amount is peculiarly within the province of the jury subject to the rule
      of reasonableness, and necessarily depends on the articulation of personal
      shame experienced by the discharged plaintiff together with the jury‟s
      perception of his sensitivities. A summary discharge on account of age
      might be devastating to a person of refinement and gentle nature, while of
      little consequence to a person less sensitive or more calloused.

                                             9
McDowell v. Shoffner Indus. Of Tenn., Inc., No. 03A01-9301-CH00030, 1993 WL
262846, at *4 (Tenn. Ct. App. July 13, 1993)). “The analysis is necessarily subjective in
nature.” Boone v. City of Lavergne, No. M2010-00052-COA-R3-CV, 2011 WL 553757,
at *11 (Tenn. Ct. App. Feb. 16, 2011).

       In response to du Pont‟s post-trial motions, the trial court found the preponderance
of the evidence supported the jury‟s verdict and denied du Pont‟s motion to suggest a
remittitur. Unlike the trial court, we did not have the opportunity to observe Mr.
Vawter‟s demeanor or credibility and have no way of judging the degree of
embarrassment and humiliation Mr. Vawter suffered as a result of du Pont‟s failure to
offer him a job. We have no basis upon which to rule that the amount of damages the
jury determined was appropriate to award Mr. Vawter, and that the trial court approved
after observing him testify, was unreasonable.3 As a result, we affirm the trial court‟s
judgment awarding Mr. Vawter $100,000 in compensatory damages. See Boone, 2011
WL 553757, at *13 (in THRA case where jury awarded damages for embarrassment and
humiliation, Court of Appeals stated “appellate courts must support the amount approved
by the trial court if there is material evidence to support the verdict”).

        C. Front Pay Award

        Du Pont‟s final argument is that the trial court erred in awarding Mr. Vawter front
pay for three years in the amount of $112,120.07. When the trial court refused Mr.
Vawter‟s request to require du Pont to hire him for the general operator position, Mr.
Vawter sought an award of front pay. Front pay is a monetary award used to compensate
a plaintiff for the loss of future earnings and is available as a remedy in cases of
employment discrimination when reinstatement is not available as a remedy. Coffey v.
Fayette Tubular Prod., 929 S.W.2d 326, 332 (Tenn. 1996). Front pay is inherently
speculative because of its prospective nature, and so the courts of this state consider
certain factors to determine whether front pay may be appropriate in a particular
situation. Id. These factors were announced in a case involving a termination rather than
a failure to hire, and they include the following:

        (1) the employee‟s future in his or her old job; (2) the employee‟s work and
        life expectancy; (3) the employee‟s obligation to mitigate his or her
        damages; (4) the availability of comparable employment opportunities and
        the time reasonably required to find another job; and (5) the amount of any
        award for liquidated or punitive damages.

3
 Du Pont points out that the humiliation and embarrassment Mr. Vawter suffered was not entirely due to
du Pont‟s failure to hire him, but also resulted from his overall disappointment about not being employed.
We do not believe this distinction renders the award unreasonable, however. The jury could have found,
based on the evidence introduced, that Mr. Vawter‟s embarrassment and humiliation did not end when he
was hired by Veolia because Veolia paid him considerably less than du Pont would have, and he was
required to work so many more hours each pay period than he would have at du Pont.
                                                   10
Sasser v. Averitt Express, Inc., 839 S.W.2d 422, 434 (Tenn. Ct. App. 1992). Mr.
Vawter‟s situation differs from the plaintiffs‟ situations in Sasser v. Averitt Express, Inc.,
839 S.W.2d at 425-26, and Coffey v. Fayette Tubular Products, 929 S.W.2d at 327,
because the Sasser and Coffee plaintiffs were employees who were terminated, whereas
Mr. Vawter was a potential employee who was not hired. All three plaintiffs alleged
employment discrimination, however, and the analysis is similar to determine whether or
not an award of front pay is appropriate.

        Mr. Vawter submitted an expert‟s report in support of his request for an award of
front pay.4 The expert estimated that Mr. Vawter had 5.53 years of working life left,
which was based on Mr. Vawter‟s age of 63 in December 2014, his health, education
level, and worklife tables. The expert then presented two different scenarios to calculate
the difference in earnings between the job Mr. Vawter had at Veolia Water and the
amount he would earn if he were working at du Pont as a general operator. The first
scenario considered Mr. Vawter‟s wages excluding the overtime hours he was required to
work at Veolia based on the evidence that du Pont does not require its general operators
to work overtime, and the second scenario considered Mr. Vawter‟s wages including the
overtime hours. The net present value of the first scenario was calculated to be
$131,917.86, and the net present value of the second scenario was calculated to be
$86,129.06. The trial court considered the expert‟s report and determined that Mr.
Vawter was entitled to front pay for three years in the amount of $112,120.07 based on
the first scenario.

       Du Pont asserts the trial court erred in awarding Mr. Vawter any amount of front
pay on the basis that Mr. Vawter was fully compensated by being awarded his attorney‟s
fees and costs, in addition to the compensatory award of $100,000, and argues that the
award of front pay would constitute a windfall to Mr. Vawter. Du Pont also points out
that the Court of Appeals in Sasser opined that front pay is “a special remedy, not
necessarily warranted in every case but reserved for only the most egregious
circumstances.” Sasser, 839 S.W.2d at 433. According to one of the cases Sasser cites
in support of this statement, however, awarding front pay to a 41-year old employee who
was discriminatorily discharged might not be warranted, but “the failure to make such an
award for an employee age 63 . . . might be an abuse of discretion.” Davis v. Combustion
Eng’g, Inc., 742 F.2d 916, 923 (6th Cir. 1984).

       The decision whether to award a plaintiff front pay in an employment
discrimination case is “governed by the sound discretion of the trial court.” Davis, 742
F.2d at 923. “A court abuses its discretion when it causes an injustice to the party

4
 Du Pont initially objected to the report and sought an opportunity to depose Mr. Vawter‟s expert and/or
obtain its own expert and report, but du Pont later decided not to depose Mr. Vawter‟s expert or submit
alternative expert proof. The trial court thus considered Mr. Vawter‟s motion with only the expert report
submitted by Mr. Vawter as evidence.
                                                   11
challenging the decision by (1) applying an incorrect legal standard, (2) reaching an
illogical or unreasonable decision, or (3) basing its decision on a clearly erroneous
assessment of the evidence.” Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn.
2010). This standard of review involves a less rigorous review of the trial court‟s
decision and a lower likelihood that the decision will be reversed on appeal. Id. “It
reflects an awareness that the decision being reviewed involved a choice among several
acceptable alternatives [and] does not permit reviewing courts to second-guess the court
below, or to substitute their discretion for the lower court‟s.” Id. (citing Overstreet v.
Shoney’s, Inc., 4 S.W.3d 694, 708 (Tenn. Ct. App. 1999); White v. Vanderbilt Univ., 21
S.W.3d 215, 223 (Tenn. Ct. App. 1999), Henry v. Goins, 104 S.W.3d 475, 479 (Tenn.
2003); and Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998)).

       The trial court, not the jury, determined the propriety and amount of front pay to
award Mr. Vawter. See Sasser, 839 S.W.2d at 435 (determining whether to award front
pay and the appropriate amount is a function for the court rather than the jury).
Considering the factors set forth above, we find the trial court did not abuse its discretion
by awarding Mr. Vawter front pay. The evidence at trial indicated that Mr. Vawter is in
good health and anticipates working for at least another few years. He mitigated his
damages by engaging in an intense search for employment immediately after he lost his
job with Velsicol Chemical and then accepting the best job he could find, working for
Veolia Water. No evidence was submitted suggesting he is likely to find alternative
employment at this point in his life. Finally, he was not awarded liquidated or punitive
damages. The award of front pay contributes to making Mr. Vawter whole and placing
him closer to where he would have been had du Pont offered him the position of general
operator in 2012. See Sasser, 839 S.W.2d at 433 (stating that in the employment
discrimination context, front pay and back pay awards help make plaintiff “whole”).

                                     IV. CONCLUSION

        We affirm the judgment of the trial court in all respects. Costs of this appeal shall
be taxed to the appellant, E. I. du Pont de Nemours and Company, for which execution
shall issue if necessary.

                                                         ___________________________
                                                         ANDY D. BENNETT, JUDGE




                                             12
