Court Cases Court Cases
View Case Details
DARRELL D. THURMAN Plaintiff-Appellee Cross-Appellant
YELLOW FREIGHT SYSTEMS INC. Defendant-Appellant Cross-Appellee.
Nos. 94-6109 95-5064
July 26 1996 Decided
For DARRELL D. THURMAN Plaintiff - Appellee Cross-Appellant: Richard J. Ebbinghouse ARGUED BRIEFED Gordon Silberman Wiggins & Childs Birmingham AL.
For YELLOW FREIGHT SYSTEM INC. Defendant - Appellant Cross-Appellee: Jeff Weintraub BRIEFED J. Gregory Grisham ARGUED BRIEFED Weintraub Robinson Weintraub Stock Bennett Ettinghoff & Grisham Memphis TN.
Before: SUHRHEINRICH and SILER Circuit Court; *EDMUNDS District Court.
The Hon. Justice Nancy G. Edmunds

Plaintiff brought this case against his former employer claiming race discrimination in violation of Title VII 42 U.S.C. SEC. 2000e et seq. and 42 U.S.C. SEC. 1981. After a bench trial the district court found that Yellow Freight Systems Inc. discriminated against Darrell Thurman by failing to hire him as a full time employee. The district court awarded back pay costs and Counsel fees and denied Thurman's requests for instatement compensatory and punitive damages pre-judgment interest and front pay. Defendant appealed and Plaintiff cross-appealed.


Plaintiff Darrell Thurman is a black man who was employed by Defendant Yellow Freight Systems Inc. a "less than a truckload" common carrier based in Memphis Tennessee. Thurman began working as a casual employee for Yellow Freight on September 20 1988. He sought to become a regular full time employee. To qualify for consideration as a regular employee a casual employee needed 1) a commercial driver's license; 2) two years experience driving tractor-trailers; and 3) passing results on a driver's test a physical exam and a drug test. In considering casual employees for full time work Yellow Freight used no objective criteria regarding work performance. When Yellow Freight needed to hire another regular employee Larry Rock the General Operations Manager would ask the shift managers and dock supervisors *fn1 to recommend one of the casuals. Recommendations were made based on an employee's "hustle" or speed his attitude and his skill in properly stacking freight. Previous work experience and longevity with the company were also factors.

In late 1988 Larry Rock asked Thurman if he was interested in a full time job. Thurman responded that he was and gave Rock a copy of his state driving record. His record contained no negative information. In December 1988 Thurman passed Yellow Freight's drivers test and on January 4 1989 he passed the physical exam. Yellow Freight gave Thurman a "New Hire Kit" containing a new W-4 form and a credit union application. After he received these forms Thurman thought he was a regular employee. However Yellow Freight did not hire him. Instead in January 1989 Yellow Freight hired five white employees.

As a result of Yellow Freight's failure to hire him as a regular employee Thurman filed an EEOC claim and later this lawsuit claiming race discrimination. Yellow Freight contended it did not hire Thurman because Thurman was an average or poor worker and the whites hired were better workers. Thurman presented contradictory evidence that his performance was superior to the whites the company hired.

Despite Yellow Freight's claim that Thurman's work performance was poor Yellow Freight used Thurman as a casual for a great number of hours just before it did its January 1989 hiring. When Yellow Freight needed more workers shift managers attempted to call the best performing casuals first. In the period between September and December 1988 Thurman worked more hours than the average number of hours that white casuals worked.

During discovery and in the pre-trial order Yellow Freight had indicated it had hired only four white employees. During cross examination of Larry Rock however Rock revealed that Yellow Freight in fact had hired five white employees and the fifth one was Jerry Clay. Yellow Freight hired him on January 8 1989 and then fired him eight days later due to poor work performance. There was evidence at trial that Yellow Freight had racist hiring practices in the past. Since 1974 Yellow Freight has been bound by a consent decree. The consent decree provides that Yellow Freight must meet a 33% minority hiring goal. Yellow Freight has met this goal in some years and has failed to meet it in others. In 1986 46% of Yellow Freight's new hires were minorities in 1987 only 9% were minorities and in 1988 only 17%. During 1987 and 1988 a number of other truck lines went out of business thus there were experienced blacks available for hire in the labor market. *fn2

In the spring of 1989 Thurman left his employment at Yellow Freight. In August 1990 Thurman went to work for Riggs Trucking Company for a job substantially similar to his job at Yellow Freight. During his probationary period he damaged a truck and was fired. From August 1991 to October 1992 Thurman worked for Parts Inc. During that time Thurman permanently injured his back.

A bench trial was held and on July 29 1994 the district court held that Yellow Freight intentionally discriminated against Thurman and that Yellow Freight's proffered reasons for not hiring Thurman were a pretext for discrimination. Court rejected Yellow Freight's after-acquired evidence defense and rejected Yellow Freight's claim that back pay should be tolled due to Thurman's failure to mitigate. Court awarded Thurman back pay in the amount of $ 95 782.21 reducing the award to account for unemployment income and worker's compensation Thurman had received. Court also awarded costs and Counsel fees in the amount of $ 109 923.61. Court denied Thurman's requests for instatement compensatory and punitive damages pre-judgment interest and front pay. Court did not award pension benefits. Defendant appealed and plaintiff cross-appealed.


This court reviews questions of law de novo Weimer v. Kurz-Kasch Inc. 773 F.2d 669 (6th Cir.1985) and questions of fact under the clearly erroneous standard. Anderson v. City of Bessemer 470 U.S. 564 84 L. Ed. 2d 518 105 S. Ct.1504 (1985). The clearly erroneous standard requires this court to give deference to the finder of fact. As the Supreme Court explained:

If the district court's account of the evidence is plausible in light of the record viewed in its entirety the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact it would have weighed the evidence differently. Where there are two permissible views of the evidence the fact-finder's choice between them cannot be clearly erroneous.

City of Bessemer 470 U.S. at 573-74. Such deference to the trial court is necessary because the trial Court is in the best position to determine credibility of witnesses. Id. at 574-75.


A. Discrimination

Title VII provides that it is an unlawful employment practice for an employer to discriminate against an individual by failing or refusing to hire him on the basis of race. 42 U.S.C. Sec. 2000e-2(a)(1). In a Title VII action the plaintiff has the burden of proving a prima facie case. McDonnell Douglas Corp. v. Green 411 U.S. 792 802 36 L. Ed. 2d 668 93 S. Ct.1817 (1973); Texas Dept. of Community Affairs v. Burdine 450 U.S. 248 256 67 L. Ed. 2d 207 101 S. Ct.1089 (1981). A claimant may prove a prima facie case by bringing forth credible direct evidence of discriminatory intent Terbovitz v. Fiscal Ct. of Adair Cnty. 825 F.2d 111 (6th Cir.1987) or through circumstantial evidence showing:

1) he is a member of a protected class;

2) he was qualified for the job;

3) he suffered an adverse employment decision; and

4) he was treated differently than similarly situated whites.

Sischo-Nownejad v. Merced Community College Dist. 934 F.2d 1104 1109 (9th Cir.1991); see McDonnell Douglas 411 U.S. at 802.

Once a plaintiff has met his burden of production and has established a prima facie case of discrimination the burden of production shifts to the defendant to establish a legitimate nondiscriminatory reason for the employment decision. McDonnell Douglas 411 U.S. at 804. If the defendant carries this burden the presumption raised by plaintiff's prima facie case is rebutted. The ultimate burden of persuasion remains with the plaintiff to prove that the employer's reasons were a pretext for discrimination and that the employer intended to discriminate on the basis of race. St. Mary's Honor Center v. Hicks 509 U.S. 502 113 S. Ct.2742 125 L. Ed. 2d 407 (1993). It is at this stage that credibility is assessed. Id. at 2748. A plaintiff can prove discrimination either (1) by showing that a discriminatory reason more likely motivated the employer or (2) by showing that the employer's explanation is unworthy of credence. Burdine 450 U.S. at 256.

The fact-finder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may together with the elements of the prima facie case suffice to show intentional discrimination. Thus rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination . . . .

St. Mary's 113 S. Ct. at 2749 (emphasis in original).

The parties do not dispute that Thurman presented a prima facie case. However Yellow Freight contends it rebutted any presumption raised by the prima facie case by proving it had legitimate reasons for failing to hire Thurman: his work performance was poor and the work performance of the whites was better. Manzer v. Diamond Shamrock Chemicals Co. 29 F.3d 1078 (6th Cir.1994) (performance problem can be legitimate nondiscriminatory reason for adverse employment action). The trial court found however that these reasons were a pretext for intentional discrimination. On appeal Yellow Freight points to each distinct piece of evidence and argues that that evidence does not mandate an inference or a finding of discrimination. This analysis is improper however as it was the trial court's duty to review all of the facts together not in isolation. A review of the record as a whole shows that the trial court's finding of intentional discrimination was not clearly erroneous.

The criteria for hiring casuals as full time employees was solely subjective. Rock the shift managers and the dock supervisors who decided against hiring Thurman were all white. Thus Court carefully scrutinized Yellow Freight's decision not to hire Thurman. Bruhwiler v. University of Tennessee 859 F.2d 419 421 (6th Cir.1988) (employment decision is subject to "particularly close scrutiny" when it was subjective and decision makers were not members of minority group). Close scrutiny of Yellow Freight's hiring decision was also mandated because Yellow Freight failed to meet its consent decree minority hiring goals in 1987 and 1988 a time period when qualified minorities were available for hire due to the dissolution of other trucking companies in the area. Chang v. Univ. of Rhode Island 606 F. Supp.1161 1183-84 (D.R.I. 1985) (heightened scrutiny applied due to defendant's past discriminatory practices); Gonzales v. Police Department City of San Jose 901 F.2d 758 760-61 (9th Cir.1990)(failure to comply with affirmative action goals is evidence of discrimination). *fn3

The trial court doubted the credibility of Yellow Freight's witnesses and believed Thurman's witnesses. *fn4 Under the clearly erroneous standard this court must defer to the trial Court's findings based on credibility. City of Bessemer 470 U.S. at 574-75. Yellow Freight's lack of credibility is reflected in the record in numerous ways. For example Yellow Freight failed to disclose during discovery that it hired Mr. Clay in January 1989 and then fired him eight days later. This was strong evidence of an attempt to hide discriminatory actions. Also Yellow Freight changed its factual position as the litigation continued. An employer's changing rationale for making an adverse employment decision can be evidence of pretext. Edwards v. U.S. Postal Service 909 F.2d 320 324 (8th Cir.1990); Schmitz v. St. Regis Paper Co. 811 F.2d 131 132-33 (2d Cir.1987). In January 1989 when Thurman confronted Rock to ask why he had not been hired Rock made no mention of any work performance problems. In fact from October through December of 1988 Thurman worked more often than the other casuals evidence that his work was satisfactory. Then during discovery Yellow Freight responded to interrogatories indicating that Thurman was "at best an average worker when he started out as a casual employee and his performance and attitude waned somewhat after three months." *fn5 In the pretrial order Yellow Freight claimed that it did not hire Thurman as a regular employee due to poor performance.

Yellow Freight also argues that there is an inference of nondiscrimination when an adverse employment decision is made by the same person who hired the plaintiff citing Buhrmaster v. Overnite Transp. Co. 61 F.3d 461 (6th Cir.1995) cert. denied 133 L. Ed. 2d 736 116 S. Ct.785 (1996). Rock both hired Thurman as a casual and made the final decision not to hire him as a full time employee. While there is an inference of nondiscrimination the sum of the evidence as discussed above rebutted this inference. *fn6

B. After-Acquired Evidence

In addition to claiming that Thurman was not as qualified as the whites it hired Yellow Freight asserted the "after-acquired evidence" defense. This doctrine applies to bar an employee from obtaining certain remedies in a discrimination case. Where an employer can show it would have been entitled to terminate the employee for severe wrongdoing if it had known of the employee's wrongdoing at the time the employee's remedies for discrimination are limited. McKennon v. Nashville Banner Publishing Co. __ U.S.__ 130 L. Ed. 2d 852 115 S. Ct.879 886-87 (1995) ("Where an employer seeks to rely upon after-acquired evidence of wrongdoing it must first establish that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge.") As a general rule under the after-acquired evidence doctrine the employee is barred from obtaining front pay and reinstatement and back pay is limited. Id. at 886.

Yellow Freight contended that if it had known Thurman made omissions and misrepresentations on his employment application it would not have hired him. Thurman left blank a question asking if he had had any accounts placed for collection. In fact a utility account for $27 had been placed for collection. Thurman claimed he had not received the bill because he had moved. He later paid the bill. He also left blank a question asking why he had left his job at The Commercial Appeal. Yellow Freight contended he had been fired due to poor performance. In addition Thurman misstated the dates that he worked at The Commercial Appeal. He stated he had worked there from March 1982 to March 1985. In fact he worked there from January 1984 to late February 1985.

The trial court found it was not true that Thurman had been fired due to poor performance since The Commercial Appeal had later recommended him for another job. This factual ruling was not clearly erroneous as Court could reasonably conclude from the recommendation that the circumstances of Thurman's termination were not negative. Further Court found that the omission regarding the utility account and the misstatement regarding the dates of employment were not material. The small utility bill had been paid. Even though Thurman misstated his dates of prior employment he still met Yellow Freight's qualification of two years driving experience. Because Yellow Freight failed to prove it could have and would have refused to hire Thurman the after-acquired evidence defense did not apply.

C. Duty to Mitigate

As a general rule when a court finds discrimination it must award back pay. "The special factors which would constitute exceptional circumstances and prevent back pay awards are exceedingly rare." Rasimas v. Mich. Dept. of Mental Health 714 F.2d 614 626 (6th Cir.1983) cert. denied 466 U.S. 950 80 L. Ed. 2d 537 104 S. Ct.2151 (1984). A Title VII litigant who redresses his own injury also vindicates the public purpose of deterring discrimination. Alexander v. Gardner-Denver Co. 415 U.S. 36 45 39 L. Ed. 2d 147 94 S. Ct.1011 (1974).

A plaintiff has a duty to mitigate his damages by seeking suitable employment with reasonable diligence. 42 U.S.C. SEC. 2000e-5(g); Ford Motor Co. v. E.E.O.C. 458 U.S. 219 232 73 L. Ed. 2d 721 102 S. Ct.3057 (1982); Whatley v. Skaggs Companies Inc. 707 F.2d 1129 1138 (10th Cir.) cert. denied 464 U.S. 938 78 L. Ed. 2d 314 104 S. Ct.349 (1983). If an employee suffers a "willful loss of earnings however, the employer's back pay liability is tolled. It is the employer's burden to prove that back pay should be tolled. N.L.R.B. v. Ryder System Inc., 983 F.2d 705, 712 (6th Cir.1993).

In Ryder an employer claimed back pay should be tolled because the plaintiffs were fired for insubordination and therefore suffered a willful loss of earnings. Court held [A] discharge from interim employment will toll back pay liability only if the employee's misconduct was 'gross' or 'egregious.' Id. at 713. Similarly an employee's discharge for cause due to his willful violation of company rules will toll back pay. Brady v. Thurston Motor Lines Inc. 753 F.2d 1269 (4th Cir.1985).

Yellow Freight claims that Thurman failed to mitigate his damages because Riggs Trucking Company his subsequent employer fired him for cause. During his probationary period at Riggs Thurman drove a truck under an overpass that was too low. As a result he bent the exhaust pipe. Riggs discharged him due to the accident. There was no evidence that Thurman acted intentionally. Thus Yellow

Freight failed to establish that Thurman acted willfully or committed a gross or egregious wrong. Back pay should not be tolled and the district court is affirmed on this issue.

D. Counsel Fees

Yellow Freight asserts on appeal that the district court erred because it failed to reduce Thurman's Counsel fees substantially due to Thurman's less than complete success in this case. The district court used the lodestar method and reduced the award by five percent due to Thurman's partial success on his claims. Yellow Freight argues that the reduction should have been greater because Thurman was successful on only two of his original six claims. Thus Yellow Freight argues Thurman had limited success and the district court should have reduced the fee award by at least forty percent.

Thurman originally claimed 1) discrimination due to failure to hire in violation of Title VII; 2) failure to hire under 42 U.S.C. SEC. 1981; 3) retaliation under Title VII; 4) retaliation under SEC. 1981; 5) discrimination in the terms and conditions of employment under Title VII; and 6) discrimination in the terms and conditions of employment under SEC. 1981. *fn7 Thurman requested back pay instatement compensatory and punitive damages and pre judgment interest. Thurman won on his claims of failure to hire and was awarded back pay.

The extent of a plaintiff's overall success must be considered in making an award of Counsel fees. Farrar v. Hobby 506 U.S. 103 121 L. Ed. 2d 494 113 S. Ct.566 (1992); Scales v. J.C. Bradford & Co. 925 F.2d 901 910 (6th Cir.1991). However a court should not reduce Counsel fees based on a simple ratio of successful claims to claims raised. Phelan v. Bell 8 F.3d 369 374 (6th Cir.1993). When claims are based on a common core of facts or are based on related legal theories for the purpose of calculating Counsel fees they should not be treated as distinct claims and the cost of litigating the related claims should not be reduced.

Many civil rights cases will present only a single claim. In other cases the plaintiff's claims for relief will involve a common core of facts or will be based on related legal theories. Much of Counsel's time will be devoted generally to the litigation as a whole making it difficult to divide the hours expended on a claim-by-claim basis. Such a lawsuit cannot be viewed as a series of discrete claims. Instead the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.

Hensley v. Eckerhart 461 U.S. 424 435 76 L. Ed. 2d 40 103 S. Ct.1933 (1983). For example a plaintiff's claim that his employer discriminated against him by failing to hire and promote him is related to his equal pay claim and thus the district court should not reduce Counsel fees due to the plaintiff's success on only some of these claims. Carmichael v. Birmingham Saw Works 738 F.2d 1126 1137 (11th Cir.1984). Accord Lilley v. BTM Corp. 958 F.2d 746 756 (6th Cir.) (claims for age discrimination and retaliatory discharge are related) cert. denied 506 U.S. 940 121 L. Ed. 2d 287 113 S. Ct.376 (1992); Williams v. Roberts 904 F.2d 634 (11th Cir.1990) (claims for retaliatory transfer and discharge are related).

In this case Thurman was successful overall as he won on his claim of failure to hire and was awarded back pay. The trial court in its discretion reduced the Counsel fees by five percent because Thurman was not entirely successful. This fee award was appropriate and within the district court's discretion because the claims upon which Thurman did not prevail were related claims and related requests for relief.

E. Pre judgment Interest

Thurman appeals the trial court's denial of pre judgment interest. In this circuit the award of pre judgment interest is within the discretion of the trial court. E.E.O.C. v. Wooster Brush Co. Employees Relief Ass'n 727 F.2d 566 579 (6th Cir.1984). An abuse of discretion will be found where the district court plainly erred. In re Bendectin Litigation 857 F.2d 290 307 (6th Cir.1988) cert. denied 488 U.S. 1006 (1989).

Pre judgment interest is usually appropriate to make a discrimination plaintiff whole.

An award of "pre judgment interest . . . is an element of complete compensation" in a Title VII back pay award. Pre judgment interest helps to make victims of discrimination whole and compensates them for the true cost of money damages they incurred. This court commonly awards pre judgment interest on back pay awards.

E.E.O.C. v. Wilson Metal Casket Co. 24 F.3d 836 841-42 (6th Cir.1994) (citations omitted). Discrimination victims should not be penalized for delays in the judicial process and discriminating employers should not benefit from such delays. Id. at 842. While pre judgment interest should be awarded as a part of back pay it should be excluded for delays specifically attributable to the plaintiff. Shore v. Federal Express Corp. 42 F.3d 373 380 (6th Cir.1994).

In this case the trial court denied pre judgment interest because Counsel for Thurman delayed the case by requesting extensions to respond to Yellow Freight's motion for summary judgment and requesting that trial be delayed due to his need for more time to prepare. Another delay occurred when Thurman failed to respond to an order of Court.

The trial court abused its discretion by denying pre judgment interest altogether. Accordingly this case is hereby remanded for an award of pre judgment interest. The district court may reduce the interest award for delays specifically attributable to Thurman.

F. Unemployment and Worker's Compensation

Thurman also appeals the district court's deduction of unemployment compensation and worker's compensation from the back pay award. Thurman received both types of compensation after he left Yellow Freight. He received the worker's compensation for a back injury he received while working at Parts Inc.

In Rasimas v. Michigan Dept. of Mental Health 714 F.2d 614 (6th Cir.1983) cert. denied 466 U.S. 950 80 L. Ed. 2d 537 104 S. Ct.2151 (1984) this court held that unemployment benefits should not be deducted from back pay awards and this is not a matter for district court discretion. Title VII is intended to make victims of discrimination whole.

It is inconsistent with this national policy to argue . . . that two identically situated claimants may be made "whole" by radically different back pay awards. To allow district courts to determine just how whole a claimant will be is antagonistic to the establishment of a uniform national policy.

Id. at 627 n.13. In addition unemployment compensation is paid not to discharge an obligation of the employer but to carry out the social policies of the state. Thus unemployment benefits are collateral benefits which the district court should disregard in making its award. Id. Accord Conklin v. Lovely 834 F.2d 543 551 (6th Cir.1987) (as general rule unemployment benefits are not deducted from back pay awards); contra Satty v. Nashville Gas Co. 522 F.2d 850 855 (6th Cir.1975) (upholding without discussion reduction of discrimination award due to unemployment compensation) vacated and remanded on other grounds 434 U.S. 136 (1977). *fn8 Like unemployment benefits worker's compensation benefits are a collateral source that should not be deducted from back pay. Knafel v. Pepsi-Cola Bottlers of Akron Inc. 899 F.2d 1473 (6th Cir.1990).

In contrast in Hawley v. Dresser Industries Inc. 958 F.2d 720 (6th Cir.1992) this court held that pension benefits should be deducted from a back pay award in an ADEA case. The purpose of the back pay award was to restore the employee to the position he would have been in if the discrimination had not occurred. Because the plaintiff would not have been entitled to pension benefits if he had remained employed the pension benefits he received were deducted from the award.

Here Yellow Freight argues that the unemployment compensation and worker's compensation are interim earnings paid in lieu of income after termination and not collateral sources. Further back pay is an equitable award intended to make the plaintiff whole; failure to deduct these benefits would make Thurman more than whole. Yellow Freight argues Knafel is distinguishable because in that case the employer caused the employee's injury and thus the employer should not be entitled to benefit from the worker's compensation payments. In contrast Thurman's injury was caused by a third party.

Thurman contends the district court should be reversed because it should have followed Rasimas and Knafel. This is the better argument. The unemployment compensation and worker's compensation Thurman received are collateral sources that should not have been deducted from back pay. The purpose of Title VII is both to make the victim of discrimination whole and to deter discrimination. Alexander v. Gardner-Denver Co. 415 U.S. 36 45 39 L. Ed. 2d 147 94 S. Ct.1011 (1974). Permitting an employer to benefit from other sources of income like unemployment compensation and worker's compensation would not serve the deterrence function of the statute. Further as noted in Rasimas unemployment compensation is not paid to discharge a liability of the employer. It is paid to carry out the social policies of the state. Identically situated Title VII claimants should not receive vastly different back pay awards; this would be antagonistic to the national uniform policy of making discrimination victims whole. 714 F.2d at 627 n.7. Also while back pay may be equitable in nature it is ordinarily a presumptive entitlement of a plaintiff who successfully prosecutes an employment discrimination case. Id. at 626. Therefore the trial court's deduction of unemployment and worker's compensation from back pay is reversed and the case is remanded for a recalculation of back pay.

G. Instatement

Thurman appeals the district court's denial of his request for instatement. Victims of discrimination are presumptively entitled to instatement or reinstatement in the usual case. Fleming v. Ayers & Assoc. 948 F.2d 993 998 (6th Cir.1991). It is not appropriate in every case however and it is within the discretion of the district court. Id. When the victim of discrimination is not capable of performing the job in question instatement is not an appropriate remedy. Whitlock v. Donovan 598 F. Supp.126 137 (D.D.C. 1984) (under Rehabilitation Act court may take into account reasonableness of workplace accommodation; thus denial of reinstatement appropriate because alcoholic employee was incapable of performing job) aff'd sub nom. Whitlock v. Brock 252 U.S. App. D.C.403 790 F.2d 964 (D.C. Cir.1986) (Table). Courts have required employers to make reasonable accommodations for victims of discrimination but only where the victim was injured while working for the employer. See e.g. Wells v. North Carolina Board of Alcoholic Control 714 F.2d 340 342 (4th Cir.1983) (if employee had not been improperly denied promotion to job involving lighter work he would not have suffered injury causing him to quit; back pay and reinstatement affirmed) cert. denied 464 U.S. 1044 79 L. Ed. 2d 176 104 S. Ct.712 (1984). See also Albright v. Longview Police Dept. 884 F.2d 835 (5th Cir.1989).

In this case after Thurman left his employment at Yellow Freight he injured his back working for Parts Inc. As a result he is unable to do the heavy lifting his former employment at Yellow Freight required. Because he would not be capable of performing his former job the district court denied his request for instatement. This was not an abuse of discretion.

On appeal Thurman claims that the Americans with Disabilities Act 42 U.S.C. SEC.(s) 12101-12213 requires the court to order instatement and reasonable accommodation. This issue was not raised in the pretrial order and was not litigated at trial. It was raised vaguely and for the first time in Plaintiff's motion to alter or amend the judgment. Issues that are not squarely presented to the trial court are considered waived and may not be raised on appeal. Building Serv. Local 47 Cleaning Contractors Pension Plan v. Grandview Raceway 46 F.3d 1392 1399 (6th Cir.1995) ("vague references fail to clearly present the objection in the district court so as to preserve the issue for appellate review"). Thus the trial court's denial of instatement is affirmed.

H. Pension Benefits

Thurman also appeals the trial court's failure to award pension benefits as part of his back pay award. While Thurman's amended complaint requests pension benefits in its prayer for relief the record does not reflect any subsequent request and the trial court did not address this issue. Again issues not squarely presented to the trial court are considered waived. Grandview Raceway 46 F.3d at 1399. With few limited exceptions this court will not consider issues raised for the first time on appeal. Preferred Rx Inc. v. American Prescription Plan 46 F.3d 535 549 (6th Cir.1995). The failure to award pension benefits is affirmed.

I. Denial of Front Pay

In the conclusion to his appeal brief Thurman also appeals the denial of front pay. He failed to brief the issue however and therefore Court considers the claim abandoned and unreviewable. See McMurphy v. City of Flushing 802 F.2d 191 198-99 (6th Cir.1986).


The trial court's finding of intentional discrimination and rejection of the after-acquired evidence defense is AFFIRMED. The trial court's finding that back pay should not be tolled is AFFIRMED and the award of Counsel fees and costs is AFFIRMED. Further Court's denial of instatement pension benefits and front pay is AFFIRMED.

The district court's denial of pre judgment interest is REVERSED. This case is REMANDED for an award of pre judgment interest in accordance with this opinion. In addition the deduction of unemployment and worker's compensation from back pay was in error and is REVERSED and the case is REMANDED for recalculation of back pay.


*The Honorable Nancy G. Edmunds United States District Court for the Eastern District of Michigan sitting by designation.

*fn1 During the time Thurman was at Yellow Freight there were no black shift managers or dock supervisors.

*fn2 The consent decree requires that when a minority applies for employment with Yellow Freight and Yellow Freight fails to hire that minority Yellow Freight must document the reasons why it failed to hire the person. Yellow Freight did not document the reasons why it failed to hire Thurman.

*fn3 Yellow Freight argues that the trial court should have considered the fact that it met or exceeded its minority hiring goals after 1988. However the evidence that Yellow Freight met its goal after Plaintiff filed his EEOC charge does not sanction discrimination that occurred previously. E.E.O.C. v. New York Times Broadcasting Service Inc. 542 F.2d 356 361 (6th Cir.1976) (voluntary corrective action does not render litigation moot it only affects relief court may order).

*fn4 Yellow Freight contends that the trial court should not have been persuaded by the testimony of Thurman's witnesses because they were coworkers and not supervisors citing Anderson v. Baxter Healthcare Corp. 13 F.3d 1120 (7th Cir.1994). Anderson does not apply here. In that case Court held that the affidavits of coworkers regarding a plaintiff's work performance were insufficient to defeat summary judgment. Here there was no question of a genuine issue for trial. Courts take into account coworker testimony in determining whether a plaintiff has proven a prima facie case. Taylor v. Philips Industries 593 F.2d 783 (7th Cir.1979).

*fn5 Thurman started at Yellow Freight on September 20 1988. Thus Yellow Freight's claim that his performance waned after three months means that his performance allegedly waned at the end of December. The record shows that this claim is disingenuous because it was during this time period that Yellow Freight asked Thurman to take a physical exam in order to qualify for full time employment. He passed the physical on January 4 1989.

*fn6 Yellow Freight emphasizes on appeal that even though management gave Thurman a "New Hire Kit it never promised Thurman a full time job. This may be true, but it is not relevant. Thurman did not claim breach of contract or promissory estoppel. He claimed that Yellow Freight discriminated against him when it decided to hire white employees instead of him.

*fn7 Thurman also originally brought a class action claim. He voluntarily withdrew this claim.

*fn8 The majority opinion in Rasimas created a conflict with a prior panel of the Sixth Circuit which ruled in Satty v. Nashville Gas Co. 522 F.2d 850 855 (6th Cir.1975) vacated and remanded on other grounds 434 U.S. 136 (1977) that the district court's reduction of a discrimination award due to unemployment compensation was proper. The Satty court ruled on this issue without discussion. After Rasimas the only other Sixth Circuit panel to address the issue ignored the conflict between Satty and Rasimas and cited Rasimas as settled law. Conklin v. Lovely 834 F.2d 543 551 (6th Cir.1987) (as general rule unemployment benefits are not deducted from back pay awards). As discussed infra this court finds the policy and rationale behind Rasimas is more persuasive.