### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON On Remand fr

om the Suprem

e Court of Tennesse

e on Opinion filed Ma

y 30, 2000

LARRY W. BARNES v. THE GOOD YEAR TIRE AND RUBBER COMPANY

An Appeal from the Chancery Court for Obion County No. 16,153 Michael Maloan, Chancellor

No. W2000-01607-COA-RM-CV - Filed May 25, 2001

This is a suit for wrong

ful termination und

er the Tennesse

e Handicap Act,

remanded to this Court by the Tennessee Supreme Court. After a jury trial, the jury found that the employ er regarded

the employee as handicapped a

nd terminated his e

mployment in

violation of the Tennessee Handicap Ac t. The jury aw

arded the employ

ee $150,000 in bac

k pay and $150,000 for humil iation an d embarrassment. The trial court suggested a remittitur, reducing the back pay award to $100,000, and reducing the award for humiliation and embarrassment to $75,000. The defendant w as ordered to pay approximately

$30,000 in attorney’s fees and court costs. The plaintiff employ ee accepted the remittiturunder protest, and both parties ap pealed . This Court reversed, holding that there was insufficient

evidence to permit the jury to find that the employer regarded the plaintiff as “suffe ring from an impairment whic

h substantially

limit ed a m ajor life activity .” Based on this ho

lding, all remaining issues were pretermitted. The Tennessee Supreme Court reversed this

Court’s ho lding, finding that there was material evidence to support the jury verdict. The Supreme Court r emanded the case for resolution

of the pretermitted issues. On remand, we affirm the trial court’s remittitur of the award for humiliation and embarrassment, affirm the trial court’s award of attorney’s fees and court costs, and reverse and remand the trial court’s remittitur of the back pay award.

Tenn. R. App. P. 3; Ju

dgment of the Chanc

ery Court is Affirm

ed in Part, and Rev

ersed in Part, and Rem

anded.

H OLLY K IRBY L ILLARD , J., delivered the opinion of the court, in w hich W. F RANK C RAWFORD , P.J., W.S. and H EWITT P. T OMLIN , J R ., SP.J. joined.

Dan M. Norwoodand James R. Becker, Jr., Memphis, Tennessee, for the appellant Larry W. Barnes

James M. Glasgow, Jr., Un ion City , Tennessee and Tim K. Garrett an

d Michael S. Mosche

l, Nashville, Tennessee, for the appellee The Goodyear Tire and Rubber Company-2- OPINION

This is a wrongful termination case under the Tenne ssee Handicap Act, on remand to t his Courtfrom the Tennesse

e Supreme Court.

The plain

tiff/app ellant L arry W

. Barnes (“Barnes”) was employed by the defendant/appellee The Goodyear Tire and Rubber Company (“Goodyear”)

. In the

summer of 1989, Barnes was diagnosed as h avi ng Be ll’ s Pa lsy, a condition of the nervous system that affects the facial muscles. Due to the Bell’s Palsy, Bar nes te mporarily experienced slurred speech, paralysis of his facial muscles and right ey e, and was unable to w

ork for approximat

ely six weeks. When Barnes returned to work, he still suffered from some paraly

sis in his face and righ t eye and had some difficulty speaking.

In August 1990, Goodyear implemented a p lan fo r a reduction in workforce. The plan calledfor the reduction of Goodyear’s salaried workforce by 20% over a three year period. Lay

offs at Barnes’ plant were based on job performance. Job performance was measured by a performance apprai sa l method already used by Goody ear to determine salary increases. Using this criter ia, the

seven lowest ranked qua

lity assuranceinspectors would b e laid off. Bar

nes received the

fifth lowest performance

evaluation and was laid off in Sept ember 1990. At the time he was laid off, Barnes was employe

d as a Process

Control (“PC”) Operator; his primary duty was to assur e the quality of the tires made at the facilit y. Ba rnes earned app roximately $15 per hour. Barnes’ lay off was designated

as “recallable,” making him eligible for recall for a four-year period. Goody ear offered Barnes a te mpo rary, hourly positi on with its affiliate Hamilto n-Ryker tha

t paid approximately

half of his previous salary and did not have medical benefits. Barnes re jected this offer.

As a laid off

employee, Barnes was entitled to “subfund pay ” from Goodyear. Subfund pay

was a pool of money designed to provide laid off employ ees with an income equaling 80% of their salary. In calculating subfund pa y, Goodyear

considered the employee’s other sources of income, including unemployment compensation and salary

from a new job, and supple

mented that income up to 80% of the employee’s prior Goodye ar salary until the employee’s sub fund account was exhausted. Barnes’ subfund amount was $22,722. During the period of his layoff, Barnes received $160 per wee k in unemp loyment compensation for forty-one we eks. To supplement this, he received forty-two weeks of subfund pay at $541 per week. Barne s’ receipt of subfund pay was not contingent

on his acceptance of the Hamilton-Ryker position; however, the period of time Ba rnes
was eligible for

subfund pay was less than it would have been had he accepted the Hamilton-Ryker offer. Under the Goodyear lay off plan, Barnes also received medical benefits for one y ear.

After being laid off f

rom Goodyea

r in 1990, Barne

s f iled a n application with an unemployment

office and

applied fo r work at a supermarket, Wal-Mart, and K-Mart. Barnes testified that he did not obtain employment at any of these places. Instead, in July 1991, he enrolled in barber school, based on his desire to start a new career. Barnes completed the required hours and graduated from barber school. In October 1992, he began work a s a b arber. In Jul y 1993, when Goodyear recalled Barnes to an hourly position pay ing $16.38 p er hou r. The pay was later raised to $16.92 per hour. I

n taking the rec

all, Barnes lost

his right to be recalled to a salaried position and-3-

was placed at the bottom of the seniority list. Barnes worked for Goody ear in this capacity until he injured his knee in 1994.

Meanwhile, in 1991, Barnes f iled a lawsuit ag

ainst Goody ear, alleging that his layoff violated the Tennessee Handicap Act (“THA”) , Tennessee Code Annotated § 8-50-103 (1993). Barnes asserted that his employment was terminated because he was handicapped or pe rceived by Goodyear to be handicapped.

The case was tried before a jury in May 1996. At the conclusion of B arnes’ proof, Goodyear moved f or a direc ted verdict, arguing that Barnes had failed to demonstrate that he was “handicapped” under the THA. The motion for a directed verdict was gr

anted in part and d

enied in part. A directed verdic

t was granted a

s to Goodyea

r’s claim that the

evidence did not d

emonstrate that Barnes suffered from a handicap. It was denied on the issue of whether Go odyear perceived Barnes as handicapped. The jury found Goodyear liable to B arnes as a result of the layoff. The jury awarded Barnes $150,000 in back pay and $150,000 for humiliation and embarrassment. The trial court upheld the jury ’s finding of lia bility, but sug

gest ed a remi ttitur of the back p ay award t

o $100,000 and a

remittitur of the award

for humiliation and embarrassment to$75,000. The trial court also awarded Barnes $28,690 in attor ney’ s fees and $1073.37 in court costs. Barnes accepted the remittitur under p

rotest. Both par

ties appealed to t

his Court.

On appeal, Barnes argued that the trial court erred

in reducing the jury’s damage awar d. He also appealed the trial court’s computation of the attorney’s fees. Goodye

ar appealed

the trial court’s denial of its motion for a directed verdict on the issue of whether Goodyear re garded Barnes as handicapped. In the altern ative, Goody

ear appealed th

e amount of the re

mittitur, arguin

g that th e
am ountof the judgment should have been reduced further because of Bar nes’ failure t o mitigat e damages.

This Court reversed th

e trial court’s find ing of liability, holding that the evidence was insufficient

to permit the jury to find that “Go odyear regarded Barnes as suffering from an impairment

that substantially limited a major life activity.” Barnes v. Goodyear , No. 02A01-9707- CH-00157, 1998 WL

345449, at *10 (Tenn. Ct. App. June 30, 1998), rev’d 2000 WL 688864 (Tenn. May 30, 2000). The trial court’s finding of liability was reversed; therefore, all remaining issues on appeal were pretermitted. Id.

The Tennessee Supreme Cour t gr anted review to determine the proper framework for analyzing a handicap discrimination claim under the THA. Barnes v

. Goodyear , No. W1997-00247- SC-R11-CV, 2000 WL

688864, at *1 (Tenn. May 30, 2000). It held that there wa s material evidence to support the jury’s finding of handicap discrimination, reinstated the jury’s verdict, and reversed and remanded the case to this Court for consideration of the pretermitted issues. Id. at 9.

Therefore, on remand, th e issues before t

his Court are whet

her the trial cou

rt erred in suggestinga remittitur of the jury ’ s damage awar d and whether the

trial court erre

d in its computation of the attorney’s fee award.-4-

An adjustment of a jury’s award of damages is proper only when the court

disagrees with the amount of the verdict and the adjustment does not “totally destroy” the jury’s verdict. Long v. Mattingly
, 797 S.W.2d 889, 896 (Tenn. Ct. App. 1990). In reviewing a trial court’s adjustment of

a jury’s damage award, an appellate c ourt must determine whether the adjustment was justified, “giving due credit to the jury’s decision regarding the c redibility of the

witnesses and due deference to the trial court’s prerogatives as thirteenth juror.” Id. (citing Burlison v. Rose , 701 S.W.2d 609, 611 (Tenn. 1985); Bates v. Jackson , 639 S.W.2d 925, 926-27 (Tenn. 1982); Foster v. Amcon Int’l Inc.
, 621 S.W.2d 142, 145 (T enn. 1981)). The

appellate court

must examine the reasons for the trial court’s action and the amo unt of th e suggested adjustment, and must also review the proof of damage s to determine whether the evidence preponderates against the trial court’s adjustment. Long , 797 S.W.2d at 896 (citations omitted).

We first address the trial court’s remittitur of the back pay award. The trial court found that the amount of the jury’sback pay award was excessive and sugg ested a remittitur from $150,000 to $100,000. Barnes argues that there was no basis for the trial court’s reduction of the jury’s damage award; he maintains that the overwhelming weight of the evidence supported the jury’s calculation of damages. Barnescontends that the trial court’s reduction of the award has the effect of destroying the jury’s verdict

by deny ing him relief to

which he is entitled and permitting Goodyear to reap the benefit of its discriminatory actions. Goodyear, on the other hand,asserts not only that the remittitur

was warranted, but also that the trial court should have reduced the amount of b ack pay further
, because Barnes failed

to mitigate

his damages. Moreover, Goodyear asserts that the ba

ck pay shoul

d be further reduced by the amount of unemploy ment compensation and subfund pay Barnes received, to prevent Barnes from obtaining a windfall.

Back pay is an

equitable remedy awarded in cases of employ ment discrimination to “make persons whole for

injuries suffered on account of unlawful discrimination.” Albemarle Paper Co.

v. Mood y . 422 U.S.405, 418, 95 S. Ct. 2362, 2372 (1975). The goal of a back pay award is t o completely

redress the ec o nomic injury suffered by the plaintiff as a result of the discrimination. Con seq uen tly, a back pay award includes an e mployee’s base salary plus a ny raises that the employee could reason ably have expected to receive, sick leave, vacation pay, pension bene fits, and other fringe benefits. See Rasimas v. Michigan Dep’t. o f Mental Health , 714 F.2d 614,626-27 (6 th Cir. 1983), cert. denied
, 466 U.S. 950, 104 S. Ct. 2151, 802 L. Ed. 2d 537 (1984) (citations omitted); Equal Employment Opportunity Commission v. Financial A ssurance, Inc. , 624 F. Supp. 686, 693 (W.D. Mo. 1985). Any

ambiguity a

s to the amoun t the employee would have received but for the discrimination should be resolved against the discriminating employer. Rasimas , 714 F.2d at 628. Howeve r, wh en salary increases or bonuses are optional depending on an employee’s work pe rformance, or where there has been no consistent pattern to an employer’ s award of salar y increases or bonuses, includ ing such benefi

ts in an award

of back pay would be purely speculative andinappropriate. See Holthaus v. Compton & Sons, Inc.
, 71 F.R.D. 18, 19 (E.D. Mo. 1975); Bonura v. Chase Manhattan Ba nk, N.A. , 629 F. Supp 353, 357, 361(S.D.N.Y. 1986).

In this case, the record shows that Goodyear awarded raises based on performance, placing employees into 5 groups - employ ees with the high

est performanc

e ratings fallin

g into Groups 1-5-

and2 and those with lowest ratings falling into Groups 4 and 5. Raises generally ranged from 3% to 7% and were distributed based on the availability of funds from Goody ear’s corporate office. Employees with the best performance reviews received bigger raise s at more frequent intervals. For example, an employee

in Group 1 may

receive a 7% ra

ise in 12 months, while an employee in Group 3 may receive only a 3- 4% raise in 17-24 months. At trial, Goodyear’s Manager of Human Resources testified that, due to inflation, the pool of mone y from which Goody ear drew its mer

it raises had consistently diminished, affecting the consistency and certainty of receiving a raise.

In the two years prior to Barnes’ lay off from Goodyear, he received two raises
, a 4% raise in 1989 and a 3.49% raise seventeen months later. Based on this p rior history, Barnes added appr oximately

$9700 to his calculation of lost salary, to include projected salary increases of 5 % eachyear. The

jury appar

ently cred ited Barnes’ inclusion of the projected raises in its award of back pay. The trial court, however, acting as thirteenth juror, suggested a remittitur that would take away the amount of the pr

ojected raises.

Whether the projected 5% raises should be included in calculating Barnes’ back pay is a legal issue to be determined by the court. Moody , 422 U.S. a t 415-416, 420-21, & n. 9 (asserting that courts have discretion in fashioning back pay awards). The evidence in the rec ord to be considered includes the following facts: that Barnes had previously received two raises betwe en 3% and

4% at 17-month intervals; that B arnes’ last performance review placed him in Group 3; the fact that the amount, frequency

and receipt of f

uture sala ry inc reases were contingent on Barnes’ performance appraisal and the availability of funds; that the pool of money from whichGoodyear paid its raises haddiminished; and the economic con ditions which lead to the reduc tion in force. Und

er these circumstances,

Barnes’ assertion that, had he stayed, he would have received a 5% y early salary increase, must

be deemed “speculative hindsight.” See Bonurn , 629 F.Supp. at 361. We conclude that the trial court did

not err in sugg

esti ng a remitti

tur that decreased the back pay award by the amount of the projected raises.

A back pay award must also be reduced by any interim earnings of the employ ee or amounts that could have been

earned had the employee exercised reasonable dilig ence. 42 U.S.C.S. § 2000e5(g) (Supp. 1996); see Frye v. Memphis Sta te University
, 806 S.W.2d 170, 173 (Tenn. 1991). The employee has a duty to mitigate damages by exercising re asona ble diligence in seeking similar or comparable

employment. Frye , 806 S.W.2d at 173. In a ttempting to mitigate damages, an employee is not required to accept any offer of employme

nt or go to “hero

ic lengths,” but o

nly to take reasonable steps in light of the individual characteristics of the market and the employee. See Id. (quoting Ford v. Nicks , 86 6 F.2d 865, 8 73 (6 th Cir. 1989)); Rasimas , 714 F.2d at 624. An employee forfeits his right to back pay “if he refuses a job substantially equivalent to the one he was denied.” Ford Motor Co. v. Equal Employment Opportunity Commission , 458 U.S. 219, 231-32, 102 S. Ct. 3057, 3065-66 (1982). The employer has the burden of proving both the availability of suitable and comparable

employment and the lack of reasonable diligence by the employee. Frye
, 806 S.W.2 d at 173 (cit ing Rasimas , 714 F.2d at 624).1 Barne s also argues tha t the fact he rec

eived unemploy

ment compensation

throughout th e
course of his unemployment shows that he was making reasonable efforts to secure work. He asserts that it is significant

because a claim

ant is entitled to une

mployment be

nefits only if the c

laimant is “able to work, available for work, and making a reasonable effort to secure work.” Tenn. Code Ann. § 50-7-302(a)(4). However, the Tennessee Employment Se

curity Law states that “no findings of fact

or law, judgment, c

onclusion, or fina

l order made with r

espect to a cl aim for unemployment compensation under this chapte r may be con

clusive in any

separate or su

bseque nt action or proceeding in another

forum. . . .” Tenn. Code Ann. § 50-7-304(k). Therefore, Barnes’ receipt of unemployment benefits does not establish whether he adequately mitigated his damages.

-6- Goodyear contends that the a

ward of back pa

y should be e

liminate d based on Barne s’ rejection of the Hamilton-Ryker offer. In order for the Hamilton-Ryker position to be deemed substantially

equivalent, it mus t be virtually identical in terms of compensation, promotional opportunities,

working conditions, responsibility and status. Rasimas
, 714 F.2d at 624. In contra

st to the salaried

position with benefits Barnes held at Goodyear, the Hamilton-Ryk

er position was a temp orar y

hourly position which paid approximately half of his previous salary at Goodyear and which pro vid ed n o be nefi ts. Eve n in clu din g the sub fun d pa y, the maximum amount Ba rnes would have received had he taken the Hamilton-Ryker position was 80% of his prev ious salary. “[An] employee is not requiredto mitigate damag es by acce

pting a position tha

t is not comparable

or is, in effect, a demotion.” Frye , 806 S.W.2d at 173. (citi ng Ford Motor Co. , 458 U.S. at 231, 102 S. Ct. at 3065). The Hamilton-Ryk er position cannot

be considered su

bstantially e

quivalent to Bar

nes’ prior position. Consequently, by rejecting the Hamilton-Ryker offer, Barnes did not forfeit his right to back pay.

In the alternative, Goodyear argues that the back pay a

ward should exclude

the period of time after Barnes entere

d barber school,

because Barnes failed

to take reasonab

le steps to find comparable employment

and voluntarily

removed himself f

rom the jo

b market. Goody

ear notes that B arnes’ only efforts to find comparable empl oy ment during the th ree-yea r period after h

is layoff we

re to apply at a local supermarket, Wal-Mart, and K-Mart and to file an application with the unemployment

agency. Barnes counter

s that Goodye

ar failed to

establish that there was co mparable employment available which he could have found by an exercise of reasonable diligence. 1

Gen eral ly, to reducean award of back pay, any employer must prove the availability of suitable and comparable employment and the lack of reas

onable diligence by the employee to seek such employment. Frye , 806 S.W. 2d at 173(c iting Rasimas , 714 F.2d at 624. In this case, Goodyear’s

proof regard

ing the availabi

lity of suitable and co

mparable employment w

as limited to proof regarding th

e Hamilton- Ry

ker position, whic

h we find was not su

bstantially e

quiv alen t to Barnes’ previous p osition. It is undisputed that Barnes’ efforts toward finding other employ ment

were limited to filing an application with an employment agency a nd applying

at a local superm

arket, Wal-Mart and K-Mart. Barnes did not accept any other p

ositions because

he had decided to

start a

new career as a ba

rber. A dischar

ged employ

ee’s decision to at tend school is not inh erently inconsistentwith his duty to mitigate damages, especially when such employee chooses to attend school after diligent

effor ts to find work have proven futile. See Dailey v. Soc iete Generale , 108-7-

F.3d 451, 457 (2d Cir. 1997). However, when an employee voluntarily removes himself from the job market in order to

attend school witho

ut first exercising

reasonable dilig

ence to find compa

rable employment,

he has failed to adequately mitigate his damages. See Miller v. Marsh , 766 F.2d 490, 492 (11 th Cir. 1985); Taylor v. Safeway Stores, Inc. , 524 F.2d 263, 267-68 (10 th Cir. 1975).

Tennessee courts have adopted a limited exception to the employee’s obligation to seek

other emplo yment. In Frye v. Memphis State U niversity , a university professor was terminated for improper and fraudulent u

se of the Univers

ity computer

. The plaintiff pr

ofessor to ok no steps to

secure comparable employment, and the Tennessee Supreme Court considered whe the r he had failed to mitigate his dama

ges by fa iling to exercise r

easo nabl e diligence in se eking other emp

loyment. The professor put on proof that efforts to seek employment at other institutions of higher education would have been futile. Th e Court found that, under the unique circumstances of that case, the plaintiff professor’s “decision not to pursue employment opportunities was a

reasonable

one.” Frye
, 806 S.W.2d at 174.

The Frye exception would not be applicable in this cas e. There has been no showing by Barnes that his situation was comparable to Frye, in which “the employ ee was a tenured professor,

a highly protected employment status under the law, whose speciality was such that his professional reputation was perhaps his most valued asset.” Frye , 806 S.W.2d at 173-74. There is no proof in this record it would have been “exceedingly difficult, if not impossible, for the Plaintiff to locate a job commensurate with his training and within his professional capacity.” Id. at 174.

Some courts have carved out another exception to the general rule, holding that an employer is released from the duty to pr ove the avai lability of substantially equivalent employ ment if the employer proves that an emp

loyee has n

ot m ade any reasonable efforts to obtain such work. See, e.g., Greenway v. Buffalo Hilton Hotel , 143 F.3d 47, 53 (2d Cir. 1998), Tubari Ltd. v. National LaborRelations Board , 959 F.2d 451, 458 (3 rd Cir. 1992); Weaver v. Casa Gallardo, Inc. , 922 F.2d 1515, 1527 (11 th Cir. 1991) (super seded by sta

tute on other gro

unds); Sellers v. Delgado College
, 902 F.2d 1189, 1193 (5 th Cir. 1990), cert. denied by , 498 U.S. 987, 111 S.Ct . 525 (1990); Hipp v. Liberty Nat. Life Ins. Co. , 65 F. Supp.2d 1314, 1337-39 (M.D. Fla. 1999); Harrison v. Indosuez
, 6 F. Supp.2d 224, 235 (S.D.N.Y. 1998); Logan v. Pena , No. 91-2389 JWL, 1993 WL 62316, at *4 (D. Kan. Feb. 9, 1993). This exception is based on the rationale t hat an employer should not be assigned the burden of showing that other substantially similar e mp loyment existed when the employee has failed

to pursue any employment at all. Greenway , 143 F.3d at 54. This exception has not been addressed in Tennessee.

We considered adopting this exception in this case, where Barnes’ efforts at findi n g comparable

employment can best be

described as perfunctory. However, most of the cases adopting this exception involve employees who made virtually no effor t to find compa rable emplo yment. In this case, Barnes m

ade some effort

, although it was m

inimal at best. The emplo yee’s burd en to mitigate damages is not onerous and does not require him to be success ful in mitigation, o nly to exercise reasonable efforts in light of the individual characteristics of the market and the employee. See Frye , 806 S.W. 2d at 173(q uoting Ford , 866 F.2d at 873) ; Rasimas , 71 4. F.2d at 624.-8-

Con seq uen tly, we decline to adopt this exception in this case. As a result, the burdenremains on the employer to prove that the employee f ailed to use rea sonable efforts to mitigate his dam

ages. As stated in Frye v. MemphisState University , the employer’s burden consists of two parts: proving the availability

of suitable

and comparable employment and proving a lack of reasonable diligence by the employee. Frye , 806 S.W.2d at 173. Th e on ly proof Goodyear produced regar ding comparable

employment available to Barnes was the Hamilton-R yker position
, a job not comparab le to Barn es’ pri or p osi tio n. T here for e, G ood year f ail ed t o pr ove the avai lab ili ty o f suita ble and comparable

employment,

as required to sa

tisfy its burden of

proof. Under these circumstances, we find that Goodyear failed to satisfy its burden of proof that Barnes did not use reason able efforts

to mitigate his damages. The

refore, the per

iod after 1991, wh

en Barnes enro

lle d in barber

school, sho uld be i ncl ude d in the awar d of back pay.
Goodyear also argues tha

t the back

pay award should be reduced by the amount of unemployment

compensation and subfund pay Barnes received. In NLRB v. Gullett Gin, Co. , 340 U.S. 361, 71 S. Ct. 337, 95 L.Ed. 337 (1951), the Supreme Court addressed whether unemployment compensation paid by a state agency to employees discriminatorily discharge d because of their un ion affiliation must be de ducted from an award of back pay. The Court held that the NL RB did not abuse its discretion by

refusing to

deduct the unemployment compensation from the award of back pay. Id. at 364, 71 S. Ct. at 339. The Court concluded that the NLRB’sdecision not to deduct the unemployment

compensation eff

ectuated the re

medial purposes of

National Lab

or Relations Act, and did not result in

double recover

y for employ

ees:

To decline to deduc

t state unemploy

ment compensation

benefitsin computing back pay is not to m ake the employees more than whole . . . Since no consideration has been given or should be

given to collate

ral losses in framing an order to reimbu s e [sic] employees for their lost earnings, manifestly no consideration need be given to collateral benefits which employees may have received.

Id. Unemployment compensation is paid to further the social policies of the State rather than t o discharge an obligation or liability of the employer; consequently , it is deemed a

collateral bene

fit which should not be given consideration in formulating an award of back pay

. Id.

Courts applying the reasoning in Gullett Gin to other employment discrimination cases have disagreed on whether collateral benefits, particularly unemploy ment compensation, should never be deducted from back pay awards o r whether the decision to deduct such benefits is within the discretion of the trial court. See Lussier v. Runyon , 50 F.3d 1103 (1 st Cir. 1995) (denoti ng a 4 to 3 split among seven

of the circuits

and internal divis

ion among the othe

r three circuits

). A majority have held that collater

al benefits

are general

ly nondeductible and that unemployment compensation, in particular, should never be deducted. See Thurman v. Yellow Freight Sys te ms, Inc. , 90 F.3d 1160 (6 th Cir. 1996); Gaworski v. ITT Commercia l Fin. Corp., 17 F.3d 1104, 1114 (8 th Cir. 1994); Craig v. Y & Y Snacks, Inc. , 721 F.2d77, 82-84 (3d Cir. 1983); Brown v. A.J. Gerrard Mfg. Co.
, 715 F.2d 1549, 1550-51 (11 th Cir. 1983); Rasimas , 714 F.2d at 62 7 n.13; Kauffman v. Sidereal Corp
., 695 F.2d 343, 346, 347 (9 th Cir. 1982); Equal Em ployment Opportunity Commissio n v. Ford2 Some courts argue that the issue of whether un employment compensation am ounts to double recovery is not between the employer and employe e. They arg

ue that if Congre

ss did not intend for employeesto receive unemp loyment comp

ensati o n in addition to back pay, recoupment of the benefits by the state employment ag ency would be the logical solution. See Rasimas , 714 F.2d at 628, n. 13; Hunter , 797 F.2d at 1429. Gullett Gin also seems to suggest that due to the collateral nature of unemployment compensation, the issue is between the state and the employee. Gullet Gin
, 340 U.S. at 365, n. 1, 71 S. Ct. 340, n. 1. In Griggs v. Sands , 526 S.W.2d 441 (Tenn. 1975), the Tennessee Supreme Court held that the recoupment of unemployment compensation made during a period covered by a back pay award may be appropriate in some cases. Id. at 449.

-9- MotorCo. , 645 183, 195 (4 th Cir. 1981). In contrast, a minority have held that the deductibility of collateral benefits is within the discretion of the trial court, reasoning that the Gullett Gin Cou r t upheld the NLRB’s r

efusal to deduct unemployment compensation benefits as a valid exercise of the NLRB’s discretion. Thus, by analog

y, the decis

ion by a tria

l court rather tha

n the NLRB wou

ld also be in the discretion of the trial court in decidi ng a n employment discrimination case. See, e.g., Dailey
, 108 F.3d at 451; Daniel v. Loveridge , 32 F.3d 1472, 1478 n. 4 (10 th Cir. 1994); Hawley v. Dresser Indus., Inc., 958 F.2d 720, 726 (6 th Cir. 1992); Orzel v. City of Wauwatosa Fire Dep ’t.
, 697 F.2d743, 756 (7 th Cir. 1982), cert. denied , 464 U.S. 992, 104 S. Ct. 484 (1983); Merriweather v. Hercules , 631 F.2d 1161, 1168 (5 th Cir 1980).

We find persuasive the reasoning of the minority view, holding that the decision of whether to deduct unemploy

ment compensation

from back pay

is w ithin the di scretion of the tr ial court. However, having held this, we caution that , mo re often than not, such benefits should not be deducted. The purpose of back p ay is both to

make the victim of discrimination whole and to deter discrimination by the employer. Thurman , 90 F.3d at 1171 (citi ng Alexander v. Gardner-Denver Co.
, 415 U.S. 36, 45, 94 S. Ct. 1101, 1018 (1974)). To a llow a discriminating employer to offset its liability by deducting unemploy ment compensation paid by a state agency undermines the deterrence

obj ect ive of b ack p ay. In effect, a benefit is conferred upon the employer who committed the illegal discrimination, t hus making such discrimination less costly. See Thurman , 90 F.3d at 1171; Gaworski , 17 F.3d 11 13. In choosi ng between co nferring a windfall upon the wrongdoer and the victim of the wrongdoing, the logical choice is the victim. See Dailey , 108 F.3d at 461 (citing Hunter v. Allis-Chalmers, Corp. , 797 F.2da t 1417, 1429 (7 th Cir. 1986), abrogated on other grounds by Patterson v. McLean Credit Union , 109 S.Ct. 2363 (1989 )). Furthermor

e, the Court in Gull e tt Gin expressly sta

ted that declining

to deduct unemploy

ment compensation

benefits in computing back pay does not make an employee more than whole. 340 U.S. at 364-65, 7 1 S. Ct. at 339-40. 2 In this case, we find no circumstances which wo uld warra nt the deduction of unemployment

compensation ben

efits from the bac

k pay awar

d to Barnes. Conse

quently, we

hold that the back pay award should not be reduced by the amount

of the unemployment compensation benefits Barnes received.

In contrast, the subfund pay Barnes received was funded entirely from Goodyear. A s such, it is not a collatera

l benefit, but a direct

benefit from the employer. Therefore, the collatera l source ruledoes not apply. The purpose of the subfund pay

was to provide Barnes with income during the-10-

period he was laid off. Argua bly, it was pa

id in lieu of the sala

ry Barne s would have received had he not been disch arged. Thu s, to allow Barne s to receive both s

ubfund pay a

nd back pay

would provide double recovery from Goody ear for the same period of time. In essence, the emp loyer would be paying twice, first in the form of subfund pay and then in the form of back p a y, and the r esult would be to make the plaintiff more than whole. Therefore, the amount of back pay awarded t o Barnes should be reduced by the amount of subfund pay he received.

In its suggested remittitur, the trialcourt reduced the jury’s award of back pay from $150,000
to $100,000, finding the jury’s award excessive. However, the trial cour t did notstate

the elements comprising its suggested r emit titur. Therefore, we remand this cause to the trial court for recalculationof t he pro per am ount o f back pay owed to Bar nes in light of thi s Opin ion. In calculating the award of back pay, the trial court should include the period afte r 1991, when Barnes entered barber school. Excluded from the back pay award

should be the amoun

t Barnes earne

d in subfund pay and the amount Barnes projected in raises. The back pay award should not be reduced by the amount of unemployment compensation Bar nes recovered.

In addition to suggesting a rem ittitur of t he back pay award, the trial court sugg ested a remittiturof the jury’s award for humiliation and embarrassment. Finding the award

excessive, the trial court suggested a remittitur which reduced the award by half, from

$150,000 to $75,000. The THA provides that a pla

intiff in a discrimi

nation lawsuit

may be awarded damages for humiliation andembarrassm

ent c aused by the discriminatory act. Tenn. Code Ann. § 4-21-306(a)(7). The amount of such damage

s is primarily

within the ambit of th

e jury, and

is largely dependent

on the jury’s perception of the p ersonal sha me articulated by the discharged employ ee. McDowell v. ShoffnerIndus. , No. 03A01-9301-CH00030, 1993 WL 262846 at *4 (Tenn. Ct. App. July 13, 1993), perm. to appeal

denied , Aug. 12, 1993. Ultimately, however, the amount awarded is subject to the rule of reasonableness. Id.

In this case, Barnes testified that he was devastated and in a state of shock

upon learning of his layoff, that he was just not himself, and that he f elt “so low” he did not want to talk to or see anyone. This testimony indicates an overall disappointment and discomfort normally associat ed with losing a job. We agree with the trial court that $150,000 for this type of injury , in the absence of any aggravating

injuries or circumstances resulting from the layoff, is excessive. See Campbell v. Rust Eng’g Co. , No. 90-5679, 1991 WL 27423, at *13 - *15 (6 th Cir. Mar. 5, 1991), cert. denied , 502 U.S. 952, 112 S. Ct. 406 (1991) (mem.) (suggesting remittitur f o r humiliation and embarrassment damages from $68,897 to $10,000 because plaintiff suffered no aggrav ati ng injuries as a result of his layoff, only injuries normally sustained when a losing job, i.e. overall disappointment about not being employed); Harris v. Dominion Bank , No. 01-A -01-9609-CH-0044

4, 1997 WL

273953, at *10 ( T enn. Ct. App. May 23, 1997) (remitting humiliation and embarrassment damages form $100,000 to $20,000 because plaintiff did not suffer any aggravated injuries, only the discomfort anyone would feel over losing their job). The trial court’s reduction of the humiliation and damages award to $75,000 was in the r a nge of reasonableness. Consequently, the trial court’s sug gested remittitur of the award for humiliation and embarrassment from $150,000 to $75,000 is affirmed.-11-

Finall y, Barn es contends that the trial court erred in its computation of attorney’s fees by declining to use the “lodestar” a pproach applied by the fede

ral courts in makin

g fee awards. However, our Supreme Court, in United Medical Corp. v. Hohenwald Bank , 703 S.W.2d 133, 137 (Tenn. 1986), expressly rejected the “lodestar” approach. Id. (“We see no a dvantage to [ the “lodestar” approach] over the consideration of several factors set out in

[Tenn. Sup. Ct. R. 8, Code of Professional Responsibility] Disciplinary Rule 2-106(B) . . ..”) The determination of the amount of reasonable attorney’s fees is a discretionary inquiry with no fixed mathematical rule;

con seq uen tly, the trial court’s award of attorney’sfees should be af firmed on appeal

absent an abuse of discretion. Lowe v. Johnson County , No. 03A01-9309-CH-00321 , 1995 WL 306166, at * 2 (Tenn. Ct. App. May 19, 1995) (citations omitted). Based on our review of the record, we find no

error in the amount

of attorney’s fees awarded by the trial court. Therefore, the decision of the trial court is affirmed on this issue.

In sum, we find that the trial court’s suggested remittiturof the jury’s award for humiliation andembarrassment to

$75,000 was a

ppr opriate. We also find that the trial court’s award of attorney’sfees was proper. We remand the case to the trial court for reca

lculation of the a

ppropriate back pay award to Barnes consistent with this Opinion.

The decision of the trial court is affirmed in part, reversed in part and remanded consistent withthis Opinion. Costs are taxed equally to the appellant Larry W. Barnes and the appellee The Goodyear Tire and Rubber Company and the ir s uret ies , fo r wh ich exe cut ion may i ssu e ifnece ssa ry.

HOLL Y KIR BY LI LLA RD, J.