Recovery of Damages Under PEPFA - Articles

All Content

Posted by: Doug Hamill on Oct 15, 2018

Very few state appellate decisions have addressed the Public Employee Political Protection Act (PEPFA), codified at Tenn. Code Ann. §8-50-601 et seq., since the legislation was enacted in 1980. Until recently, no state appellate decision has addressed the types of damages recoverable for a violation of PEPFA. In Keeling v. Coffee County, No. M2017-01809-COA-R3-CV (Sept. 18, 2018), the Middle Division of the Court of Appeals did just that.

Melinda Keeling was employed by Coffee County in the codes and safety department, which was supervised by Glenn Darden. Eventually Ms. Keeling complained to the County Mayor that Mr. Darden was frequently not available to help the public. Mr. Darden learned of her communication with the mayor and retaliated against her by taking away duties that provided compensatory time off, giving her the cold shoulder, and putting a negative letter in her personnel file. Ultimately, Mr. Darden eliminated Ms. Keeling’s position, ostensibly because of lack of funds and/or lack of work. Upon Mr. Darden’s retirement, the mayor immediately sought and obtained an amendment to the county budget for the codes department re-establishing the position that Ms. Keeling had held.

At the conclusion of trial, the jury returned a verdict in favor of Ms. Keeling and awarded $10,000 in emotional distress (compensatory) damages. The trial judge trebled this amount to $30,000 pursuant to Tenn. Code Ann. §8-50-603(b). Thereafter, Ms. Keeling filed a post-trial motion requesting the trial judge to award back pay, front pay, loss of employment benefits and prejudgment interest. After much briefing by the parties, the trial court eventually entered a judgment in Ms. Keeling’s favor for back pay in the amount of $90,512.18; back benefits in the amount of $35,890.84; prejudgment interest in the amount of $11,968.39; and front pay in the amount of $16,008.00, for a total of $154,379.41 in equitable damages. Trebling the damages under PEPFA, the judgment for equitable damages was entered in the amount of $463,138.24.

The County made one interesting argument, which was rejected by both the trial court and appellate court. Because PEPFA allows for treble damages, the County argued an award of front pay would create a windfall for Ms. Keeling. In dismissing this contention, the appellate court noted that treble damages are not punitive in nature, but instead such damages under PEPFA encourage open communication by imposing increased costs on the public employer that discourages unfettered communication. Applying reasoning from Coffey v. Fayette Tubular Products, 929 S.W.2d 326 (Tenn. 1996) (punitive damages and front pay) and Trainor v. HEI Hospitality, LLC, 699 F.3d 19 (1st Cir. 2012) (treble damages and front pay), the Court determined that it would be improper to offset or limit front pay damages based upon the recovery of treble damages. Stated another way, front pay and treble damages are not mutually exclusive.

There are two other noteworthy takeaway issues from this case. First, the appellate court affirmed the trial court’s decision to refuse to offset back pay damages by the amount of unemployment benefits received by Ms. Keeling. In doing so, the court noted that “more often than not, such benefits should not be deducted,” citing Barnes v. Goodyear Tire & Rubber Co., 2001 WL 568033, at *8 (Tenn. Ct. App. May 25, 2001). While state appellate courts apply a discretionary standard to whether unemployment benefits may be deducted from back pay, the undersigned author has yet to find a case where an appellate court has affirmed deduction of unemployment benefits from a backpay award. Second, the appellate court reversed the trial court on the issue of mitigation of damages. Ms. Keeling secured employment with an insurance company after her termination from the County, but she later voluntarily left that job. The court noted the County had failed to carry its burden in showing that the insurance job was substantially equivalent employment — meaning virtually identical promotional opportunities, compensation, job responsibilities, working conditions, and status as the job Ms. Keeling held with the County. The Court noted that the insurance job paid less and did not afford state retirement and insurance benefits as did Ms. Keeling’s job with the County. Remember, mitigation is an affirmative defense, and the burden of proof must be borne by the defendant.

The Keeling decision confirms what many employment law practitioners have believed for a long time. That is, PEPFA’s treble damages provision applies to all available remedies, including back pay, front pay, emotional (compensatory) damages, lost benefits and prejudgment interest. Of course, PEPFA allows for the recovery of reasonable attorney fees, which Ms. Keeling’s counsel most likely will have requested by the time of publication of this article.

Doug Hamill is an attorney with the Chattanooga-based firm, Burnette Dobson & Pinchak, where he practices employment law, representing victims of employment discrimination, unlawful retaliation and sexual harassment. Doug received his law degree from the University of Tennessee in 2003. He may be reached at 423-266-2121 or