                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 13a1046n.06

                                           No. 12-6171

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                    FILED
                                                  )                           Dec 20, 2013
MICKEL G. HOBACK,                                 )                       DEBORAH S. HUNT, Clerk
                                                  )
          Plaintiff-Appellee,                     )
                                                  )           ON APPEAL FROM THE
v.                                                )           UNITED STATES DISTRICT
                                                  )           COURT FOR THE EASTERN
CITY OF CHATTANOOGA,                              )           DISTRICT OF TENNESSEE
                                                  )
          Defendant-Appellant.                    )
                                                  )


Before: DAUGHTREY, GIBBONS, and DONALD, Circuit Judges.

          JULIA SMITH GIBBONS, Circuit Judge. Mickel Hoback, a former Chattanooga police

officer who suffers from Post-Traumatic Stress Disorder, sued the City of Chattanooga for

discrimination in violation of the Americans with Disability Act (“ADA”) and the Rehabilitation

Act of 1973. The discrimination claims went to a jury, which found in favor of Hoback and awarded

him $130,000 in back pay, $300,000 in front pay, and $250,000 for emotional distress. After the

verdict, the City renewed its motion for judgment as a matter of law and moved in the alternative

for a new trial and remittitur of the front and back pay awards. The district court denied the City’s

motions, concluding that the jury’s verdict was supported by sufficient evidence, but granted a

partial remittitur of the back pay award. The City now appeals, arguing that the jury’s verdict was

against the weight of the evidence and that the district court’s award of front pay was in error. We

affirm.

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                                              I.

       The Chattanooga Police Department (CPD) hired Hoback as a police officer on July 21,

2000. After starting work, Hoback enlisted in the military. He served in Iraq for over a year,

returning to the CPD in late November 2005. At some point after returning from Iraq, Hoback was

diagnosed with Post-Traumatic Stress Disorder (PTSD). Hoback received counseling and treatment,

including psychotropic medication, from the Veterans Administration (VA).

       On April 14, 2009, Hoback went to see his usual therapist, Michael Bearden. He complained

about headaches, vomiting, intrusive thoughts, and sleeplessness. Bearden called the VA and made

an appointment for Hoback to change his medication. Hoback met with Dr. Estella Acosta at the

VA a few minutes later. Hoback testified that in this meeting Dr. Acosta asked him whether he ever

though about dying, and he said that he thought about getting shot sometimes. After talking with

Hoback, Dr. Acosta filled out a Certificate of Need for Involuntary Commitment, which stated that

Hoback was “depressed and despondent and states that he is feeling suicidal.” But Hoback was not

involuntarily committed. He left the VA, went to Bearden’s office, and then drove himself to the

hospital. Hoback stayed overnight and was released the next day.

       After hearing about the attempted involuntary committal, the CPD placed Hoback on

administrative leave and asked him to take a psychological fitness for duty test. Hoback complied

with the CPD’s request and met with Donald L. Brookshire, Psy. D., several times to complete the

test. Dr. Brookshire also reviewed Bearden’s notes and Dr. Acosta’s Certificate of Need for

Involuntary Commitment, but he did not speak to either professional. Dr. Brookshire then wrote a

report concluding as follows:

      [Hoback] is not psychologically fit to safely perform the duties as a police officer. He
      is currently diagnosed by the [VA] with [PTSD], Severe, as defined by the Diagnostic

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      and Statistical Manual of Mental Disorders, Four (DSM-IV). . . . A pattern of
      excessive anger, suicide and homicide thoughts and impulsive and aggressive acting
      out behaviors are viewed as potential risks to his successful and safe functioning as
      a police officer.

After receiving Dr. Brookshire’s report, the CPD told Hoback to either apply for another position

with the City or to request Family Medical Leave Act (FMLA) benefits.

       Hoback did neither and instead asked for a second opinion. In June and July 2009, Terrell

M. McDaniel, Ph.D., evaluated Hoback.           Dr. McDaniel’s report acknowledged that “Dr.

Brookshire’s impressions and conclusions were consistent with the information provided him, as

well as his impressions over several interviews with Mr. Hoback.” However, Dr. McDaniel

ultimately concluded that Hoback was fit for duty as a police officer. Dr. McDaniel did note that

the “administration may wish to choose a position that provides acceptable levels of monitoring at

the beginning of [Hoback’s re-engagement].” Dr. McDaniel also recommended that Hoback

continue with counseling.

       Police Chief Freeman Cooper fired Hoback on July 21, 2009, after Hoback had exhausted

his personal leave time. Cooper based his decision on Dr. Brookshire’s report, even though he had

received a preliminary oral report from Dr. McDaniel. Cooper also did not talk to Hoback’s VA

specialist, VA psychiatrist, or medical doctor before making his decision. Cooper testified that he

knew that Hoback “was not free from all mental disorders, which he’s required to be to perform his

job.” Hoback appealed his termination to the city council, which upheld Cooper’s decision.

       After his termination, Hoback asked for a third evaluation. Dr. James Walker evaluated

Hoback on August 18th. Dr. Walker spoke with Hoback, interviewed Bearden, discussed Hoback’s

work with his supervisors on the force, and reviewed Hoback’s records. He ultimately diagnosed

Hoback with “post-traumatic stress disorder, in remission.” Walker testified that “[p]utting all that

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information together, I could not conclude otherwise that Mr. Hoback was fit for duty to function

as a police officer for the state—City of Chattanooga.” Dr. Walker criticized Dr. Brookshire’s

report, testifying that Dr. Acosta’s notes were insufficient to support her own conclusion that

Hoback required involuntary committal, and that he believed Dr. Brookshire placed too much

emphasis on certain records. Both Dr. McDaniel and Dr. Walker testified that they did not rely on

many of Bearden’s notes because they were obviously based on Hoback’s embellishments or

magnifications in an apparent attempt to increase Hoback’s VA disability benefits.

       On April 12, 2010, Hoback sued the City of Chattanooga, alleging claims under the ADA,

the Rehabilitation Act, and 42 U.S.C. § 1983. With leave of the court, Hoback amended his

complaint and removed the § 1983 claim. He added a claim under the Uniform Services

Employment and Reemployment Rights Act of 1994 (“USERRA”) and its attendant regulations.

Hoback then moved for summary judgment on all of his claims. The City responded with its own

motion for partial summary judgment as to the USERRA claim. The district court denied Hoback’s

motion, but granted the City’s motion and dismissed the USERRA claim. The remaining claims

proceeded to trial. At the close of evidence, the City moved for judgment as a matter of law, which

the district court denied. The jury returned a verdict in favor of Hoback on September 15, 2011,

awarding him $130,000 in back pay, $300,000 in front pay, and $250,000 for emotional distress for

a total award of $680,000.

       After the verdict, the City filed a renewed Motion for Judgment as a Matter of Law and/or

Motion for New Trial. The City also asked for remittitur of excessive damage awards, arguing that

the verdict was “beyond the maximum damages that the jury reasonably could find to be

compensatory for a party’s loss.” The district court denied the City’s Motion for Judgment as a


                                                4
Matter of Law and/or Motion for New Trial and the City’s motion seeking remittitur on the front

pay award but granted in part the City’s Motion to Remit the Jury’s Award of Back Pay.

                                                 II.

       We review the district court’s denial of a Rule 50 motion for judgment as a matter of law de

novo and the district court’s denial of a Rule 59 motion for a new trial under an abuse of discretion

standard. Balsley v. LFP, Inc., 691 F.3d 747, 757 (6th Cir. 2012); Nolan v. Memphis City Schs., 589

F.3d 257, 264 (6th Cir. 2009) (citing Morgan v. N.Y. Life Ins. Co., 559 F.3d 425, 434 (6th Cir.

2009)). Having carefully reviewed the record, the parties’ briefs, and the applicable law, we hold

that the district court did not err under either standard. Accordingly, we adopt the district court’s

opinion.

       We note that the City raises two arguments not addressed by the district court opinion.1 The

City argues that the jury’s verdict should be set aside because it is categorically inconsistent with

the fact that Hoback asked for disability benefits. See Chancey v. Fairfield S. Co., No. 2:11-CV-

3609, 2013 WL 2635682 (N.D. Ala. June 12, 2013). Relatedly, the City contends that the verdict

should be set aside because Hoback made false statements to Bearden for the purpose of increasing

his disability benefits. These are essentially arguments for equitable estoppel, although the City

does not characterize them as such.

       We find no reason to set aside the jury’s verdict on these bases. The record does not show

that Hoback ever said that he was “unable to work.” See Chancey, 2013 WL 2635682, at *10–11.


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         The City also asks us to remand for consideration of the 2013 amendments to Tenn. Code
Ann. § 38-8-106, which details the City’s required qualifications for the position of police officer.
We decline to do so. The City has not provided any authority showing that amendments enacted
almost four years after Hoback’s termination are relevant to the questions in this case and much less
that they are dispositive.

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And the City does not point to any “obvious inconsistencies” between Hoback’s application for

benefits and his position taken in this litigation. See Johnson v. Oregon, 141 F.3d 1361, 1370 (9th

Cir. 1998) (“As we have explained, the law does not require plaintiffs to choose between applying

for benefits and pursuing an ADA claim.            They may do both.”).         Moreover, Hoback’s

embellishments, even if taken as true, do not demonstrate an inability to do his job. The jury had

a chance to hear Hoback’s explanations for his disability requests and weigh his credibility

accordingly, and the City has offered no reason to overturn the jury’s decision.

       Because a panel opinion of this court would serve no jurisprudential purpose, we adopt the

reasoning of the district court and affirm on the basis of its opinion in all other respects.




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