v. Moses Freeman, in his individual and official capacities, and THE CITY OF CHATTANOOGA

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0014P (6th Cir.)
File Name: 04a0014p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
CHARLES W. MOORE,
Plaintiff-Appellee (01-6372);
Plaintiff-Appellant (01-6536),
v.
MOSES FREEMAN, in his
individual and official
capacities, and THE CITY OF
CHATTANOOGA,
Defendants-Appellants
(01-6372);
Defendants-Appellees
(01-6536).
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N
Nos. 01-6372/6536
Appeal from the United States District Court
for the Eastern District of Tennessee at Chattanooga.
No. 00-00072—R. Allan Edgar, Chief District Judge.
Argued: October 21, 2003
Decided and Filed: January 13, 2003
Before: KEITH, DAUGHTREY, and GILMAN, Circuit
Judges.
2 Moore v. Freeman, et al. Nos. 01-6372/6536
_________________
COUNSEL
ARGUED: Michael A. McMahan, NELSON, McMAHAN
& NOBLETT, Chattanooga, Tennessee, for Defendants.
Reuben N. Pelot IV, EGERTON, McAFEE, ARMISTEAD &
DAVIS, Knoxville, Tennessee, for Plaintiff. ON BRIEF:
Michael A. McMahan, Kenneth O. Fritz, NELSON,
McMAHAN & NOBLETT, Chattanooga, Tennessee, for
Defendants. Reuben N. Pelot IV, Ronald T. Hill, EGERTON,
McAFEE, ARMISTEAD & DAVIS, Knoxville, Tennessee,
for Plaintiff.
_________________
OPINION
_________________
MARTHA CRAIG DAUGHTREY, Circuit Judge. The
defendants, Moses Freeman and the City of Chattanooga,
appeal from a jury verdict awarding the plaintiff, Charles
Moore, back pay and damages for emotional and mental
distress, based on his claim of retaliation under the Fair Labor
Standards Act, 29 U.S.C. §§ 201 – 219 (FLSA). The
defendants claim (1) that there was insufficient evidence to
support the jury’s finding that they retaliated against Moore,
(2) that damages for emotional and mental distress are not
recoverable under the applicable provision of the FLSA, and
(3) that the verdict was excessive. Because we conclude that
the evidence of retaliation was sufficient to support the
verdict and that damages for emotional and mental distress
were properly recovered under the Act, we affirm the district
court’s judgment sustaining the jury verdict in the plaintiff’s
favor.
On cross-appeal, the plaintiff contends that the district court
erred in reducing his request for attorney’s fees by five-sixths
on the theory that he had prevailed on only one of his six

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Nos. 01-6372/6536 Moore v. Freeman, et al. 3
claims. This use of a mathematical formula constituted an
abuse of discretion under existing Sixth Circuit precedent and
will require a remand for correction. The plaintiff also
contends that the damages should be doubled as liquidated
damages, but we conclude that this issue is not properly
before us on appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Charles Moore was hired by the City of
Chattanooga in October 1997 as a code inspector in the city’s
housing division. His initial annual salary, and that of Joseph
Sheats, who started in the same position on the same day as
Moore, was $20,777. Also hired as a code inspector on that
day was Mary Hutson, at a starting salary of $26,751. Hutson
is a white woman; Moore and Sheats are both black men. The
defendant, Moses Freemen, who was the department’s
administrator at the time the three new hires began, claimed
that Hutson was paid more because of her prior work
experience and training and because she had turned down the
job at the original salary. On the other hand, plaintiff Moore
later testified that when he asked whether the salary was
negotiable, he was told it was not.
Several months later, when Moore learned of the disparity
between his and Hutson’s salaries, he raised the issue with
Freeman at a February 1998 staff meeting and was told by
Freeman that he would work to get Moore’s salary raised.
Before that meeting, Hutson had complained to Freeman that
she was being mistreated by some of her co-workers. She
complained again after the meeting and also reported to her
direct supervisor, Dan Thomas, that she felt that other people
in the office resented her and that she was caught in a hostile
work environment. In particular, she complained of some
interactions she had had with some of her black co-workers,
including both Moore and Sheats, that she felt were negative.
Thomas reported the latter conversation to Freeman, who
directed Thomas to conduct an investigation into Hutson’s
4 Moore v. Freeman, et al. Nos. 01-6372/6536
allegations. Thomas did so but concluded to his own
satisfaction that the work environment was not hostile.
According to Freeman, by April 1998 the office was in
such turmoil that he felt compelled to take some action to
regain control. Concluding that the problems had begun
about the time that Moore, Hutson, and Sheats had started
working in the housing department, Freeman decided to fire
all three of them. Before he could carry out this plan,
however, Hutson told Freeman she was quitting, and Freeman
placed her on two weeks paid administrative leave. He later
testified that he took this action because he wanted to
terminate all three employees collectively and because he was
worried Hutson was “building a case against the city.”
Around the same time, Freeman directed Thomas to extend
the probationary periods for Moore, Sheats, and Hutson an
additional 90 days beyond the normal six-month period
imposed on new employees. Freeman apparently accepted
Hutson’s resignation on April 28, 1998. Two days later, he
fired Moore, who then remained unemployed for
approximately four months before securing a new, better-
paying job.
At trial, Moore testified that the experience of being fired
was “demoralizing,” like being “slapped in the face.” He said
that he had worried about paying the family’s bills and that he
lost his health insurance and had to pull his children out of
their soccer league because he feared that they might get
injured at a time when he had no insurance coverage. He also
testified that the stress of having lost his job affected his
relationship with his children – one of whom drew a picture
of him as a monster – and with his wife. Moore’s wife
testified that Moore had trouble sleeping during the period he
was between jobs, and a friend of his testified that Moore
became short-tempered, lost his appetite, and began having
neck pains.
Moore and Sheats had originally filed a joint complaint in
federal court against the City of Chattanooga and several city

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Nos. 01-6372/6536 Moore v. Freeman, et al. 5
officials under the FLSA, the Equal Pay Act, 29 U.S.C.
§ 206(d), Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e – 2000e-17, and the Tennessee Human Rights Act,
Tenn. Code Ann. §§ 4-21-101 – 1004. However, Sheats
entered a voluntary dismissal, and Moore proceeded to trial
alone. At its conclusion, the district court granted the
defendants’ motion for judgment as a matter of law in part,
and the only claims that went to the jury were Moore’s claims
against Freeman in his official capacity and against the City
under the FLSA, the Equal Pay Act, and the Tennessee
Human Rights Act for sex discrimination. The jury found
that defendants did not violate the Equal Pay Act or
discriminate against Moore based on sex. It did find,
however, that the defendants violated the FLSA by
discharging Moore in retaliation for his complaints about
unequal pay and awarded him $10,232 in back pay and
$40,000 for mental and emotional distress.
The City then filed a motion for remittitur on the back pay
award and asked that the remainder of the award be set aside,
contending that mental and emotional damages are not
authorized by the FLSA. Moore filed a request for attorney’s
fees and costs and moved to alter or amend judgment by
doubling the compensatory damages as liquidated damages.
The district court reduced the back-pay award to $7,200 but
denied the rest of the defendants’ motion, holding that
damages for mental and emotional distress due to retaliation
can be recovered under the FLSA and finding that the damage
award of $40,000 was not excessive. The court also denied
Moore’s motion to alter or amend the judgment, noting that
an award of damages to employees who suffered from
retaliation was compensatory in nature and that liquidated
damages would not further this purpose. Finally, the court
reserved ruling on the plaintiff’s motion for attorney’s fees
and asked for further documentation, specifically on the
amount of time spent on legal issues and whether the work
was expended on behalf of Moore or Sheats. Moore
submitted more information, but the district court found that
it was still not sufficiently specific. The district judge
6 Moore v. Freeman, et al. Nos. 01-6372/6536
therefore awarded Moore one-sixth of the attorney’s fees and
costs he had requested, on the theory that he had prevailed on
only one of the six claims he brought in the original
complaint. The defendants have appealed the jury verdict and
the damage award approved by the district court. The
plaintiff has cross-appealed the calculation of attorney’s fees
and costs.
II. DISCUSSION
A. Sufficiency of the Evidence
The defendants assert that the plaintiff did not sufficiently
prove that he engaged in statutorily-protected activity, that his
dismissal was related to the protected activity, or that the
defendants’ proffered reason why the plaintiff was dismissed
was pretextual, addressing each of these contentions under the
burden-shifting analysis set out in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973), and urging that we find that
the plaintiff failed to establish a prima facie case of
retaliation. We have held, however, that “after a trial on the
merits, a reviewing court should not focus on the elements of
the prima facie case but should assess the ultimate question of
discrimination.” Kovacevich v. Kent State Univ., 224 F.3d
806, 821 (6th Cir. 2000) (citing EEOC v Avery Dennison
Corp., 104 F.3d 858, 862 (6th Cir. 1997)). We have,
nevertheless, recognized that whether the plaintiff made out
a prima facie case may be “relevant to our review of that
ultimate question.” Gray v. Toshiba Am. Consumer Prods.,
Inc., 263 F.3d 595, 599 (6th Cir. 2001).
Moore was clearly engaged in statutorily-protected activity,
given the fact that the anti-retaliation provisions of the FLSA
can be triggered by informal complaints, see EEOC v. Romeo
Cmty. Schs., 976 F.2d 985, 989-90 (6th Cir. 1992), and that
the defendants do not dispute that Moore protested to
Freeman about his unequal pay. Although the defendants
continue to argue that the issue of Moore’s pay was resolved
by the time Moore was fired, that argument goes to whether

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Nos. 01-6372/6536 Moore v. Freeman, et al. 7
the complaint was the cause of the termination, not to whether
it was statutorily protected.
Viewing the evidence in the light most favorable to Moore,
we conclude that a jury could reasonably have found that he
was discharged in retaliation for his complaints. Moore was
fired less than three months after protesting his unequal pay
in spite of the fact that his immediate supervisor found him
competent at his job and opposed his dismissal. The jury may
have interpreted Freeman’s calling Moore “incorrigible” at
trial, as well as testimony that Freeman asked police to be on
standby when he fired Moore, to mean that he thought Moore
was a troublemaker due to his complaints about his unequal
pay. The jury may also have found Freeman’s explanation
that he intended to fire Moore, Sheats, and Hutson
collectively to be pretextual, based on evidence that Freeman
had placed Hutson on paid leave when she first tried to resign
and that Hutson had complained about a number of
employees besides Moore and Sheats, yet those other
employees were not terminated. In short, although the
evidence to support the jury’s verdict was not overwhelming,
we cannot say that it was legally insufficient.
B. The Availability of Damages for Mental and
Emotional Distress
Damages for violation of the anti-retaliation provisions of
the FLSA are controlled by 29 U.S.C. § 216(b), which
provides in pertinent part:
Any employer who violates the provisions of section
215(a)(3) of this title shall be liable for such legal or
equitable relief as may be appropriate to effectuate the
purposes of section 215(a)(3) of this title, including
without limitation employment, reinstatement,
promotion, and the payment of wages lost and an
additional equal amount as liquidated damages.
8 Moore v. Freeman, et al. Nos. 01-6372/6536
The question here is whether this broad provision, which was
added to the FLSA in 1977, see Fair Labor Standards
Amendments of 1977, Pub. L. No. 95-151, §10, 91 Stat.
1245, 1252, allows for damages for mental and emotional
distress. We conclude that it does.
Although the provision does not explicitly allow damages
for emotional injuries, a plain reading of the text of the
provision indicates that it does not limit the type of damages
that are available. As the Seventh Circuit pointed out in
Travis v. Gary Community Health Center, Inc., 921 F.2d 108,
112 (7th Cir. 1990), “the 1977 amendment does away with
the old limitations without establishing new ones.” It allows
any legal or equitable relief that is appropriate to further the
purposes of § 215(a)(3), one of which is to ensure that
employees feel free to report grievances under the FLSA. See
Mitchell v. Robert De Mario Jewelry, Inc., 361 U.S. 288, 292
(1960) (“Plainly, effective enforcement could . . . only be
expected if employees felt free to approach officials with their
grievances. This [is the end that] the prohibition of
[§215)a)(3)] against discharges and other discriminatory
practices was designed to serve.”). The statutory scheme
contemplates compensation in full for any retaliation
employees suffer from reporting grievances, and there is no
indication that it would not include compensation for
demonstrable emotional injuries, as well as economic ones.
The delineation within § 216(b) of potential forms of relief
that are compensatory – “employment, reinstatement,
promotion, and the payment of wages lost” – further supports
the conclusion that “the evident purpose of section 216(b) is
compensation.” Snapp v. Unltd. Concepts, Inc., 208 F.3d
928, 934 (11th Cir. 2000), cert. denied, 532 U.S. 975 (2001);
see also Lanza v. Sugarland Run Homeowners Ass’n, Inc., 97
F.Supp.2d 737, 740 (E.D. Va. 2000) (“This scheme makes
clear that § 216(b) is designed to compensate the aggrieved
employee . . . .”). The defendants contend that damages for
emotional distress are not similar in type to the listed forms
of relief and argue that under the doctrine of ejusdem generis,

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Nos. 01-6372/6536 Moore v. Freeman, et al. 9
such damages should not be found to be recoverable under
§ 216(b). However, like the forms of relief mentioned,
damages for mental anguish are intended to compensate the
injured party for harm suffered.
As noted by the Seventh Circuit, which is the only other
circuit to address at length the question of whether the
provision of §216(b) at issue here provides for damages for
emotional distress, the provision allows for “appropriate”
relief, and “compensation for emotional distress . . . [is]
appropriate for intentional torts such as retaliatory discharge.”
Travis, 921 F.2d at 112. In addition, both the Eighth and
Ninth Circuits have allowed damages for emotional distress
to stand without directly addressing the issue. See Broadus
v. O.K. Indus., Inc., 238 F.3d 990, 992 (8th Cir. 2001);
Lambert v. Ackerley, 180 F.3d 997, 1011 (9th Cir. 1999).
Although the circuits are divided on the question of whether
the statute permits punitive damages, compare Travis , 921
F.2d at 111-12, with Snapp, 208 F.3d at 934, consensus on the
issue of compensatory damages for mental and emotional
distress seems to be developing. We now join our sister
circuits in finding that the damages awarded by the jury in
this case fall within the ambit of § 216(b).
C. The Size of the Jury’s Award for Mental and
Emotional Distress
The district court upheld the jury’s award of $40,000 for
mental and emotional distress, a ruling that we review for
abuse of discretion. See Sallier v. Brooks, 343 F3d. 868, 880
(6th Cir. 2003) (citing Gregory v. Shelby County, Tenn., 220
F.3d 433, 443) (6th Cir. 2000)). “A trial court is within its
discretion in remitting a verdict only when, after reviewing all
evidence in the light most favorable to the awardee, it is
convinced that the verdict is clearly excessive, resulted from
passion, bias or prejudice; or is so excessive or inadequate as
to shock the judicial conscience of the court.” Sallier, 343
F.3d at 880, (quoting Gregory, 220 F.3d at 443).
10 Moore v. Freeman, et al. Nos. 01-6372/6536
There is no claim here that the verdict resulted from
passion, bias, or prejudice. The question thus becomes
whether the verdict was so clearly excessive as to ”shock the
judicial conscience.” Though the award could be reasonably
described as fulsome, we cannot say that it is clearly
excessive. The plaintiff in this case submitted evidence that
the stress of losing his job demoralized him, strained his
relationships with his wife and children, and negatively
affected his sleeping habits and appetite.
D. Liquidated Damages
The plaintiff claims that the plain language of § 216(b)
requires that he be awarded an equal additional amount over
and above his back pay and compensatory damages as
liquidated damages. He thus asks the court to reverse the
district court’s order on liquidated damages and amend the
judgment as a matter of law to award him $94,400 rather than
$47,200. The defendants, on the other hand, argue that, at
most, the plaintiff would be entitled to liquidated damages
only on the back pay award, since the doubling of any award
for mental and emotional injuries would be punitive and
contrary to the purpose of the FLSA.
We conclude that this issue is not properly before this
court. Moore’s notice of appeal indicates that Moore is
appealing from the order of the district court entered on
November 9, 2001. The sole issue considered in that order
was the amount of attorney’s fees Moore was to be awarded.
The issue of whether Moore was entitled to liquidated
damages was decided in a previous order, dated September
25, 2001. Although the defendants appealed from that order,
Moore did not and, under well-settled precedent, he is barred
from now raising this issue:
A party who does not appeal from a final decree of the
trial court . . . may not attack the decree with a view
either to enlarging his own rights thereunder or of
lessening the rights of his adversary, whether what he

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Nos. 01-6372/6536 Moore v. Freeman, et al. 11
seeks is to correct an error or to supplement the decree
with respect to a matter not dealt with below. But it is
likewise settled that the appellee may, without taking a
cross-appeal, urge in support of a decree any matter
appearing in the record, although his argument may
involve an attack upon the reasoning of the lower court
or an insistence upon matter overlooked or ignored by it.
United States v. Am. Ry. Express Co., 265 U.S. 425, 435
(1924); see also El Paso Natural Gas Co. v. Neztsosie, 526
U.S. 473, 479-80 (1999) (citing to Am. Ry. Express and
discussing whether cross-appeal requirement is
jurisdictional). As we have previously put it, an appellee may
raise issues as a “shield” but not as a “sword.” Dole v. Briggs
Constr. Co., Inc., 942 F.2d 318, 320 (6th Cir. 1991).
E. Attorney’s Fees
We review a district court’s award of attorney’s fees for
abuse of discretion. See Fegley v. Higgins, 19 F.3d 1126,
1134 (6th Cir. 1994). An abuse of discretion can be found
when the lower court “relies on clearly erroneous findings of
fact, or when it improperly applies the law or uses an
erroneous legal standard” or “when the reviewing court is
firmly convinced that a mistake has been made.” Adcock-
Ladd v. Sec’y of Treasury, 227 F.3d 343, 348-49 (6th Cir.
2000) (quoting Phelan v Bell, 8 F3d 369, 373 (6th Cir.
1993)). Attorney’s fees must be set in amount that is
“reasonable,” 29 U.S.C. § 216(b), and in recent times the
starting point has been a “lodestar” calculation – the product
of the number of hours reasonably spent on the case by an
attorney times a reasonable hourly rate. See Adcock-Ladd,
227 F.3d at 349. That amount may then be adjusted upwards
or downwards, as the district court finds necessary under the
circumstances of the particular case.
The Supreme Court has given guidance on the extent to
which a fee should be adjusted when a plaintiff wins on some
claims and loses on others. See Hensley v. Eckerhart, 461
12 Moore v. Freeman, et al. Nos. 01-6372/6536
U.S. 424 (1983). First, it is necessary to see whether the
claims on which the plaintiff won and the claims on which the
plaintiff lost are related. If they employ “a common core of
facts or [are] based on related legal theories,” id. at 435, the
court should consider “the significance of the overall relief
obtained by the plaintiff in relation to the hours reasonably
expended on the litigation.” Id. The Supreme Court noted
that there was no “precise formula” for determining a
reasonable fee, id. at 436-37, and stressed the district court’s
discretion in this area, id. at 437, but it specifically rejected a
“mathematical approach” that compared the number of issues
on which the plaintiff prevailed to the total number of issues
in the case, finding that such an approach was not helpful in
setting a reasonable fee. Id. at 435 n.11. The Court noted
that litigants often raise alternative grounds and that rejection
of some of those grounds should not lead to a reduced fee if
the plaintiff has been successful. Id. at 435. The Sixth
Circuit has followed suit in finding that attorney’s fees should
not be reduced by the ratio of successful claims to claims
overall. See Phelan, 8 F.3d at 374 (6th Cir. 1994).
Under the Hensley analysis, the attorney seeking
compensation retains the burden of documenting the number
of hours spent on the case and of maintaining records in a
way that would allow a court to determine how much time
was spent on each claim. See Hensley, 461 U.S. at 437. At
the same time, the district court is required to give a clear
explanation of the fee award. See id; see also Wooldridge v.
Marlene Indus. Corp., 898 F.2d 1169, 1176 (6th Cir. 1990)
(“A district court should state with some particularity which
of the claimed hours the court is rejecting, which it is
accepting, and why.”).
In this case, the district court did not believe the plaintiff
had adequately separated work conducted on successful
claims from work conducted on unsuccessful claims.
However, the district court did not provide a clear explanation
of the hours it excluded because the plaintiff did not specify
the claims to which they related. Instead, it simply reduced

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Nos. 01-6372/6536 Moore v. Freeman, et al. 13
the amount of attorney’s fees Moore requested by five-sixths,
without considering the extent to which the claims were
interrelated or discussing how successful Moore was in the
context of the case overall. In doing so, the district court
abused its discretion.
III. CONCLUSION
For the reasons set out above, we AFFIRM the district
court’s judgment awarding plaintiff back pay and damages for
mental and emotional distress, but VACATE the district
court’s award of attorney’s fees and REMAND the case for a
redetermination on this issue.

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