UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
DE’OSSIE DINGUS,

)
)
Plaintiff,
)
)
v.
)
Case Nos. 3:07-cv-00452, 3:07-cv-00435
)
Judge Campbell
)
TENNESSEE DEPARTMENT
)
OF SAFETY, et al.
)
)
Defendants.
)
______________________________________________________________________________
DEFENDANT’S REPLY TO PLAINTIFF’S
POST TRIAL MEMORANDUM CONCERNING DAMAGES
______________________________________________________________________________
The Defendant, Tennessee Department of Safety, submits this Reply to Plaintiff’s Post
Trial Memorandum Concerning Damages (“Post Trial Memo”). The Defendant asserts that
Plaintiff should be awarded the lowest reasonable amount of compensatory damages, and that he
should not be awarded any other type of damages. In support of its position, the Defendant submits
the following:
SCOPE OF REVIEW ON REMAND
On April 5, 2016, the Sixth Circuit Court of Appeals issued an order (“Order”) remanding
this case to the Court for the limited purpose of reassessing this Court’s award of compensatory
damages. “[A] district court is bound to the scope of the remand issued by the court of appeals…
[T]he courts of appeals have broad discretion to issue general or limited remands.” United States
v. Campbell, 168 F.3d 263, 265 (6th Cir. 1999). “Limited remands explicitly outline the issues to
be addressed by the district court and create a narrow framework within which the district court
must operate.” Id. “The trial court must implement both the letter and the spirit of the mandate,
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 taking into account the appellate court's opinion and the circumstances it embraces.” United States
v. Moore, 131 F.3d 595, 599 (6th Cir. 1997). Where a court has considered the merits and
remanded on a particular issue, the lower court is not permitted to revisit issues addressed by the
reviewing court unless those issues are part of the remand. See e.g., Saqr v. Holder, 580 F.3d 414,
420 (6th Cir. 2009); Campbell, 168 F.3d at 265.
ARGUMENT
I.

Plaintiff is Not Entitled to Back Pay.
A. Plaintiff Has Received Compensation for Back Pay and Benefits.
Plaintiff implies that this Court should award him back pay by referencing his lost salary

from March 1, 2010, to April 15, 2013. (Post Trial Memo p. 8, ninth bullet point). But Plaintiff
has been fully compensated for any back pay and benefits. (TR. p. 85, 271-272). Plaintiff also
entered into a settlement of all future benefits by an agreement before the Tennessee Civil Service
Commission that provides for Plaintiff’s retirement, and was therefore made whole in this respect.
(TR. p. 131, Trial Exhibit 26). Plaintiff acknowledged before the Sixth Circuit that he received
back pay in the amount of $154,574.50 (Plaintiff’s Appellate Reply Brief p. 8 n.2, attached as
Exhibit A). Yet he re-submits to this Court Trial Exhibit 29, which only shows the calculation of
the $154,574.50 that Plaintiff has already been paid. At trial, Plaintiff acknowledged that his back
pay and benefits had been addressed, and he therefore sought only compensatory damages. (TR.
p. 312). In addition, Plaintiff’s submission of his back pay amount should not factor into this
Court’s consideration of compensatory damages because “[c]ompensatory damages awarded
under [Title VII] shall not include back pay.” 42 U.S.C. § 1981a(b)(2).

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 B. Back Pay Is Outside the Scope of the Sixth’s Circuit’s Mandate.
As discussed in Moore, this Court must adhere to both “the letter and the spirit” of the
Sixth Circuit’s mandate, “taking into account the appellate court’s opinion and the circumstances
it embraces.” 131 F.3d at 599. By its express language, the Sixth Circuit’s Order directs this Court
to consider only one issue on remand – the award of compensatory damages due to Plaintiff, not
back pay or any other form of relief. The Sixth Circuit reviewed this Court’s findings “concerning
an award of compensatory damages” and noted Plaintiff himself maintained that the issue on
appeal was “simply whether the District Court should have awarded compensatory damages.”
(Order p. 3) (emphasis added). The Sixth Circuit analyzed this case by affirming that “Title VII
authorizes district courts to award compensatory damages where an employer is found to have
‘engaged in unlawful intentional discrimination,’” and held that “the $1 award of damages for
Dingus’s mental anguish and emotional distress” was insufficient. (Order p. 4) (emphasis added).
Compensatory damages are intended to award a plaintiff for emotional pain, suffering,
inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses. See 42
U.S.C. § 1981a(b)(3) (emphasis added). The language of the Sixth Circuit’s Order and the law
governing compensatory damages in Title VII cases dictate that the scope of remand exclude
consideration of back pay.
II.

Plaintiff is Not Entitled to Presumptive Damages.
Plaintiff appears to ask this Court to award him presumptive damages on remand. (Post

Trial Memo p. 10-11). 1 But the scope of review on remand is for determination of “mental anguish
and emotional distress” only. (Order p. 4). Even if presumptive damages were within the scope

1

Plaintiff argued on appeal that he should be awarded presumptive damages. (Plaintiff’s Appellate Initial Brief pp.,
14-16, attached as Exhibit B). But the Sixth Circuit did not adopt Plaintiff’s argument that presumptive damages
should be awarded.

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 of remand, Plaintiff’s argument is without merit. Plaintiff relies upon the recent decision of the
Sixth Circuit in King v. Zamiara, 788 F.3d 207 (6th Cir. 2015). 2 King and the cases cited therein
are distinguishable from this case because Plaintiff’s claim is not of a constitutional injury—it is
based solely in statutory employment law. In constitutional claims like those in King and the cases
cited therein, an award of damages may not be quantifiable. Denial of voting rights and segregated
prison confinement are the types of violations that make the monetary value or the mental and
emotional impact of an injury difficult to ascertain. In contrast, in Title VII actions damages are
readily apparent when they arise out of a termination, denial of promotion, or loss of pay and
benefits. And the remedies are equally obvious: damages for emotional distress, reinstatement,
back pay, and front pay. These remedies are easily quantifiable because can be readily proven by
witness testimony of mental or emotional distress or documents proving lost pay, and are therefore
not the type of damages for which presumption is appropriate. 3
III.

Plaintiff’s Lack of Corroborating Testimony About His Emotional Distress
Weighs Against a Significant Award of Compensatory Damages.
“[D]amages for mental and emotional distress will not be presumed, and must be proven

by competent evidence.” Turic v. Holland Hospitality, Inc., 85 F.3d 1211, 1215 (6th Cir. 1996).
“Distress injury may be evidenced by one’s conduct and observed by others.” Erebia v. Chrysler
Plastic Products Corp., 772 F.2d 1250, 1259 (6th Cir. 1985), citing Carey v. Piphus, 435 U.S. 247,
264 n.20 (1978). The Sixth Circuit’s actions have repeatedly demonstrated that corroborating
testimony of a plaintiff’s emotional distress is an important consideration in determining

2

The Sixth Circuit’s Order referenced King once, and only as part of the summary of the Plaintiff’s argument on
appeal. (Order, p. 3).
3

Plaintiff cites King for the proposition that it is permissible to presume damages where damages are “difficult to
quantify.” (Post Trial Memo p. 10) (internal quotations omitted). But Plaintiff then argues that in the present case,
the harm was not “abstract.” (Post Trial Memo p. 10). Thus, by Plaintiff’s own analysis, King does not apply.

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 compensatory damages. In Turic, the Sixth Circuit upheld the trial court’s award of $50,000 in
compensatory damages, 4 and it relied in part on witness testimony that the plaintiff was observed
crying and running from the meeting after she was terminated in violation of the Pregnancy
Discrimination Act (“PDA”). 85 F.3d at 1215-16. The Sixth Circuit reasoned, based on United
States Supreme Court precedent in Carey, 435 U.S. at 264 n.20, that the witness’s corroborating
testimony of the plaintiff’s emotional distress “bolstered” her evidence in support of compensatory
damages. Id. at 1215.
The Sixth Circuit, in both Moorer v. Baptist Mem'l Health Care Sys., 398 F.3d 469, 486
(6th Cir. 2005) and Moody v. Pepsi-Cola Metro. Bottling Co., 915 F.2d 201, 210 (6th Cir. 1990),
relied in part on the corroborating testimony of the plaintiff’s spouse to support an award of
compensatory damages.

In Moody, the Sixth Circuit upheld the trial court’s award of

compensatory damages of $150,000 for age discrimination, and pointed to the corroborating
testimony of the plaintiff’s wife that he was “upset to the point of crying and that he never really
overcame the shock and humiliation of the termination.” 915 F.2d at 209-10. In affirming the
very high award of $250,000, the Moorer court relied in part on the corroborating testimony of the
plaintiff’s wife that the plaintiff suffered from depression, insomnia, and isolated himself as a
result of discrimination in violation of the Americans with Disabilities Act. 5 398 F.3d at 486.
Without corroborating testimony, the Sixth Circuit has been reluctant to uphold a
significant award of compensatory damages or has overturned compensatory damage awards.
(Rodgers v. Fisher Body Div., General Motors Corp., 739 F.2d 1102, 1108 (6th Cir. 1984)
4

The dollar amount of compensatory damages is referenced in the district court’s order. Turic v. Holland Hospitality,
Inc., 849 F. Supp. 544, 557 (W.D. Mich. 1994).

5

The Sixth Circuit also relied on the corroborating testimony of the plaintiff’s psychologist, who stated that the
plaintiff was angry, depressed, suffered increased anxiety, and that his termination was “devastating” because [the
plaintiff’s] self-worth was “completely tied up in his professional life.” Moorer, 398 F.3d at 486 (internal quotations
omitted).

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 (reversing a $300,000 award of compensatory damages where the only evidence of emotional harm
was the “plaintiff’s brief testimony in this regard”); Erebia, 772 F.2d at 1259 (holding that a
plaintiff was not entitled to compensatory damages because his proof was only his testimony that
he was “highly upset” and that “you can only take so much”); Nekolny v. Painter, 653 F.2d 1164,
1172–73 (7th Cir. 1981) (finding insufficient evidence of emotional harm where the plaintiffs
presented uncorroborated and brief testimony, even when considered along with the facts of the
case); Betts v. Costco Wholesale Corp., 558 F.3d 461, 471-2 (6th Cir. 2009) (recognizing that the
plaintiff’s uncorroborated testimony regarding emotional distress that she was “upset” and
“disappointed” was insufficient to award compensatory damages for emotional distress).
Plaintiff has failed to offer any corroborating testimony about his emotional distress or its
effects. As noted in the District Court’s Findings of Fact and Conclusions of Law (“District Court
Order”), Plaintiff testified about his feelings of isolation and being disheartened. (District Court
Order p. 14). The Defendant is mindful that the Sixth Circuit’s Order directed this Court to the
proposition that a plaintiff’s testimony alone, in conjunction with the surrounding circumstances,
can be enough to support an award of compensatory damages. (Order p. 4). But the Sixth Circuit
did not give any guidance as to the amount of compensatory damages. Therefore, it is the task of
this Court to reevaluate the evidence submitted at trial. Corroborating testimony logically adds
weight to a plaintiff’s claim of emotional distress, as noted by the Sixth Circuit in Turic.
Conversely, the lack of such testimony in this case favors a low award of compensatory damages.
IV.

Plaintiff’s Lack of Testimony or Proof of Physical or Psychological Effects
Resulting from His Emotional Distress Weighs Against a Significant Award of
Compensatory Damages.
The Sixth Circuit in similar cases has relied on evidence of physical or psychological harm

resulting from the plaintiff’s emotional distress in order to support a significant award of

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 compensatory damages. 6

In Turic, the plaintiff proved that she suffered physical and

psychological symptoms resulting from her termination in violation of the PDA. 85 F.3d at 1215.
She testified that she continued to have nightmares, was extremely nervous, and lost weight during
her pregnancy. Id. The Sixth Circuit emphasized these facts when it upheld a relatively low award
of compensatory damages of $50,000. Id. at 1216.
In Moorer, the Sixth Circuit relied on the plaintiff’s pronounced psychological symptoms
as evidence of “severe emotional distress” in affirming a very high award of compensatory
damages. 398 F.3d at 486. The plaintiff was so “devastat[ed]” and “depressed” that he sought
treatment from a clinical psychologist. Id. The plaintiff’s psychologist testified that the plaintiff
suffered from depression, that “he isolate[d] himself,” and that his termination was “devastating,
causing feelings of betrayal, anger, and depression, as well as a significant loss of self-esteem.”
Id. The psychologist also testified that the plaintiff’s marriage suffered. Id. The Sixth Circuit
concluded that the “[plaintiff]’s own testimony, combined with that of his wife and his treating
physician, constituted competent evidence of [the plaintiff’s] severe emotional distress stemming
from his termination,” and therefore upheld the very high award of $250,000. Id.
A review of additional cases in the Sixth Circuit and other circuits reveals a pattern of
courts requiring evidence of physical or psychological harm in order to support significant awards
of compensatory damages. See Moody, 915 F.2d at 210 (finding that damage to plaintiff’s
marriage and the plaintiff’s inability to overcome the shock and humiliation of his termination
supported a compensatory damage award of $150,000); Delph v. Dr. Pepper Bottling Co. of
Paragould, 130 F.3d 349, 358-9 (8th Cir. 1997) (reducing compensatory damage award from

6

While the Defendant recognizes that medical testimony is not required to support an award of compensatory
damages, the Sixth Circuit and other circuits have relied on medical and psychological testimony to support high
compensatory damage awards.

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 $150,000 to $50,000 in part because complaints of physical symptoms were too “vague,” “illdefined,” and lacking in intensity to support a larger award); Peeler v. Vill. of Kingston Mines,
862 F.2d 135, 136 (7th Cir. 1988) (upholding a compensatory damage award of $50,000 in part
because plaintiff “could not sleep, had chest pains and a constantly upset stomach…, had trouble
breathing, his blood pressure rose, and he gained 60 pounds.”).
Plaintiff in this case has been unable demonstrate a single physical or psychological effect
of his emotional distress, and is therefore not entitled to a significant award of compensatory
damages. The Defendant acknowledges that the Sixth Circuit determined that some award of
compensatory damages is warranted, but Plaintiff’s proof of only hurt feelings weighs against a
significant award.
V.

The Record Does Not Support a Significant Award of Compensatory Damages.
The District Court’s Order sufficiently identified the facts that should be considered by this

Court on remand. 7 Plaintiff submitted numerous proposed “facts” in his Post Trial Memo, but the
majority of them were already referenced in the District Court’s Order, albeit in a more objective
form than Plaintiff’s versions. Many of Plaintiff’s remaining proposed “facts” do not lay a
foundation to determine compensatory damages. Some of these proposes “facts” support a finding
of hostile work environment rather than discrimination. 8

But this Court found only that

discrimination occurred, and that the “the actual discriminatory conduct was not frequent.”
(District Court Order p. 19). Other proposed “facts” offered by Plaintiff are not supported by the

7

Plaintiff submitted approximately 48 proposed “facts” for this Court to consider, represented by bullet points in his
Post Trial Memo, (Post Trial Memo pp. 2-8), though some of the bullet points contain more than one proposed “fact.”
The Defendant has identified approximately 33 proposed “facts” that are already referenced in some form in the
District Court Order, though Plaintiff presents them from a more adversarial perspective.
8

“Plaintiff’s dietary needs were ridiculed by TDOS in front of the entire class.” (Post Trial Memo p. 5, first bullet
point). “Plaintiff was made to feel uncomfortable at the academy about his dietary needs.” (Post Trial Memo p. 5,
third bullet point). “Plaintiff testified that adverse comments concerning his prayers and dietary needs did not cease
during his employment as a CVE officer at the scales.” (Post Trial Memo p. 5, sixth bullet point).

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 record. For example, Plaintiff claims that this Court should consider the following: “Captain
Bridgeman humiliated [Plaintiff] by constantly asking him to engage in a Christian prayer every
morning even though he knew he was Muslim.” (Post Trial Memo p. 6, first bullet point). But
Plaintiff did not testify that felt “humiliated” by Captain Bridgman’s requests. Plaintiff’s statement
that “[h]is supervisors repeatedly told him that his failure to like white people (totally untrue) was
inhibiting his acceptance,” (Post Trial Memo p. 6, third bullet point) (parentheses in original),
misrepresents the trial testimony. There is no evidence that Plaintiff was “repeatedly” subjected
to this type of comment “by his supervisors.” Plaintiff also claims that he “was accused of being
a terrorist…when he was terminated in 2010.” (Post Trial Memo p. 7, second bullet point). Yet
Plaintiff’s record citation does not support this statement. In fact, there was significant discussion
at trial about Plaintiff’s attempt to prove TDOS “labeled” him as a “terrorist,” but such testimony
was never elicited. (TR. pp. 79-81).
If the Defendant pointed out every discrepancy between Plaintiff’s characterization of the
record and the actual record, this Reply would be unnecessarily lengthened. The record has not
changed since the case was remanded. This Court has simply been given an instruction to
reevaluate the award of compensatory damages. This Court found that Plaintiff “testified that he
felt isolated and ‘disheartened’ because of the actions of the TDOS.” (District Court Order p. 14).
This is the Plaintiff’s evidence of emotional damages that resulted from discrimination. The
language and spirit of the Sixth Circuit’s mandate can be fairly interpreted to instruct this Court to
reevaluate Plaintiff’s testimony “along with the circumstances of [this] particular case,” (Order p.
4), of which this Court is already aware.

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 CONCLUSION
For the reasons stated in this Reply, the Defendant respectfully requests that this Court
award the lowest reasonable amount of compensatory damages. This Court should not award back
pay, presumptive damages, or any other form of damages.
Respectfully submitted,
HERBERT H. SLATERY III
ATTORNEY GENERAL AND REPORTER
s/Rachel A. Newton
Rachel A. Newton, No. 22960
Assistant Attorney General
Civil Litigation and State Services Division
P. O. Box 20207
Nashville, Tennessee 37202
615-741-8727
Attorney for Defendant

CERTIFICATE OF SERVICE
I hereby certify that on June 6, 2016, a copy of forgoing document was filed electronically.
Notice of this filing will be sent by operation of the Court's electronic filing system to all parties
indicated on the electronic filing receipt as follows:
Arthur F. Knight, III
Taylor & Knight
800 South Gay Street, Suite 600
Knoxville, TN 37929
All other parties will be served notice of this filing by regular U.S. mail as follows: N/A
Parties may access this filing through the Court's electronic filing system.
s/Rachel A. Newton
Rachel A. Newton

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