DeCorte v. Jordan

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT August 15, 2007

Charles R. Fulbruge III
Clerk
No. 05-31042

JUDITH L. DECORTE; ET AL.,

Plaintiffs,

JUDITH L. DECORTE; IRA C. AUSTIN, JR.; CYNTHIA C. BAGGETT;
MERCEDES R. BITTINGER; TERRI C. BONNECARRE; ET AL.,

Plaintiffs-Appellees,

versus

EDDIE JORDAN; ET AL.,

Defendants,

EDDIE JORDAN, In his individual and official capacities;
ORLEANS PARISH DISTRICT ATTORNEY’S OFFICE,

Defendants-Appellants.

Appeal from the United States District Court
for the Eastern District of Louisiana

Before GARWOOD, BARKSDALE, and GARZA, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Eddie Jordan, District Attorney for Orleans Parish, Louisiana,

appeals the jury verdict and damages awarded against him, in his

official capacity, for intentional discrimination on the basis of

race against non-attorney staff in his office, in violation of

Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq.;

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42 U.S.C. § 1981; and LA. REV. STAT. ANN. § 23:301 (Louisiana

Employment Discrimination Law). Primarily at issue is whether

sufficient evidence supports the verdict and compensatory damages.

(Plaintiffs seek attorney’s fees for this appeal.) AFFIRMED and

REMANDED for determination of attorney’s fees.

I.

In November 2002, Jordan was elected District Attorney (DA)

for Orleans Parish, which primarily consists of New Orleans,

Louisiana. Shortly thereafter, he appointed a transition team,

which compiled a report of its recommendations for Jordan in his

new position. The report included a cultural-diversity report

recommending, within 100 days of his taking office, Jordan’s hiring

a staff reflective of New Orleans’ racial composition. This

recommendation was based on a Jordan campaign promise.

The transition team also formed a non-attorney staff

development and retention committee, with Stephanie Butler serving

as chairperson. In early December 2002, before Jordan took office,

the non-attorney staff in the DA’s office were instructed that, if

they wanted to continue working there during Jordan’s tenure, to

schedule an interview and submit a current resume. Plaintiffs did

so.

Butler, other members of her committee, and volunteers she

selected, all of whom are black, conducted the interviews.

Materials prepared for the process reflected interviewees were to

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be told “[t]he interviewers want[ed] to review [their] background,

hear about [their] qualifications and skills, and anything else

[they]’d like to tell [them], and to basically get a feel for

[them] and [their] work ethic”. The interviewees were evaluated

through a numeric system based on their responses to the same seven

questions.

Butler’s recommendations, however, were not based on the

interview evaluations. They resulted in the termination of

Plaintiffs, all of whom are white, except one who is Hispanic. In

response, Plaintiffs filed charges with the Equal Employment

Opportunity Commission (EEOC), claiming Jordan fired them, inter

alia, because of their race. In responding to the EEOC, Jordan

asserted Butler’s committee had not considered race, but had

“considered, among other things, performance, employee efficiency,

and previous experience in its determination of which employees

would be retained”. After investigating the claims, the EEOC found

there was reasonable cause to believe Jordan, through his

termination decisions, had discriminated against Plaintiffs because

of their race. As a result of the EEOC’s issuing a right-to-sue

letter, Plaintiffs pursued their race-discrimination claims in

district court.

At trial in 2005, the jury returned a verdict for Plaintiffs,

finding: Jordan, in his official capacity, had discriminated

against Plaintiffs on the basis of race, in violation of Title VII,

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42 U.S.C. § 1981, and the Louisiana Employment Discrimination Law;

and Jordan would have terminated eight Plaintiffs even if race had

not been a motivating factor. The judgment included monetary

damages, including compensatory damages, for those 35 Plaintiffs

terminated solely because of race. DeCorte v. Jordan, No. 03-1239

(E.D. La. 30 Sept. 2005) (amended judgment); see also DeCorte v.

Jordan, No. Civ.A. 03-1239, 2005 WL 1576309 (E.D. La. 26 May 2005).

II.

At issue are whether: sufficient evidence supports the

verdict; the district court erred in both admitting EEOC

determinations and ruling a cultural-diversity report constituted

an affirmative-action plan; admission of compensatory-damages

testimony is reversible error and sufficient evidence supports

those damages; statements in Plaintiffs’ closing argument are

reversible error; and Plaintiffs should be awarded appellate

attorney’s fees.

A.

Jordan first contends Plaintiffs failed to prove, by a

preponderance of the evidence, a violation of Title VII, 42 U.S.C.

§ 1981, or the Louisiana Employment Discrimination Law. Claims of

racial discrimination in employment, pursuant to 42 U.S.C. § 1981

and the Louisiana Employment Discrimination Law, are governed by

the same analysis as that employed for such claims under Title VII.

Anderson v. Douglas & Lomason Co., Inc., 26 F.3d 1277, 1284 n.7

4
(5th Cir. 1994) (§ 1981); Motton v. Lockheed Martin Corp., 900

So.2d 901, 909 (La. Ct. App.), writ denied, 904 So.2d 704 (2005)

(Louisiana law).

Accordingly, Plaintiffs were required to establish, by a

preponderance of the evidence, a prima facie case of racial

discrimination by showing: (1) they were members of a protected

group; (2) they were qualified for the positions they held; (3)

they suffered an adverse employment action, such as termination;

and (4) they were replaced by individuals outside the protected

class. See Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 881

(5th Cir. 2003). Upon doing so, the burden shifted to Jordan to

rebut Plaintiffs’ prima facie case by articulating a legitimate,

nondiscriminatory reason for his actions. Id. If Jordan met this

burden, it shifted to Plaintiffs to show his proffered reason is a

pretext for discrimination. Id.

On appeal, a verdict must be upheld unless, pursuant to de

novo review, “a reasonable jury would not have a legally sufficient

evidentiary basis to find” as it did. FED. R. CIV. P. 50(a)(1).

The reviewing court draws all reasonable inferences in favor of the

nonmovant, “disregard[ing] all evidence favorable to the moving

party that the jury is not required to believe”. Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000).

“‘Credibility determinations, the weighing of the evidence, and the

drawing of legitimate inferences from the facts are jury functions,

5
not those of a judge’”. Id. at 150 (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986)).

It goes without saying that, when a race-discrimination claim

has been fully tried, as has this one, this court “‘need not parse

the evidence into discrete segments corresponding to a prima facie

case, an articulation of a legitimate, nondiscriminatory reason for

the employer’s decision, and a showing of pretext’”. Bryant v.

Compass Group USA Inc., 413 F.3d 471, 476 (5th Cir. 2005) (quoting

Vaughn v. Sabine County, 104 F. App’x. 980, 982 (5th Cir. 2004)),

cert. denied, 126 S. Ct. 1027 (2006). Rather, review is to

determine only whether the record contains sufficient evidence for

a reasonable jury to have made its ultimate finding that Jordan’s

stated reason for terminating Plaintiffs was pretext or that, while

true, was only one reason for their being fired, and race was

another motivating factor. See id.

1.

As a threshold matter, Plaintiffs contend Jordan waived the

right to contest the sufficiency of the evidence because his Rule

50 motion at trial was insufficiently specific. Rule 50(a)(2)

requires a movant for judgment as a matter of law (JMOL) to

“specify the judgment sought and the law and facts that entitle

[him] to the judgment”. Jordan’s bare-bones Rule 50(a) motion

falls far short of that. Instead, after Plaintiffs presented their

case, he moved to dismiss all the Plaintiffs, stating: “[A]ll they

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have as far as evidence of discrimination are the numbers based

upon what they saw in the ... room when they received their papers

and their subjective active belief that it was discrimination that

motivated those decisions”. The court characterized this as a

motion to dismiss “all claims based on insufficient evidence ... to

show a prima facie case of racial discrimination”. In responding,

Plaintiffs did not challenge Jordan’s lack of specificity under

Rule 50(a). Before the case was submitted to the jury, Jordan

“reurg[ed]” what the court described as his “Rule 50 motion”,

without adding any supporting facts or legal contentions.

Post-trial, Jordan submitted a renewed JMOL motion, pursuant

to Rule 50(b), which was fully articulated. Moreover, Plaintiffs’

opposition did not claim Jordan was raising issues for the first

time. See Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 126 S.

Ct. 980, 984 n.1 (2006) (“‘A post-trial motion for judgment can be

granted only on grounds advanced in the pre-verdict motion.’”

(quoting Amendments to Federal Rules of Civil Procedure, 134 F.R.D.

525, 687 (1991))). As a result of this “fail[ure] to raise th[e]

forfeiture claim in opposition to the Rule 50(b) motion ...

[Plaintiffs are] preclude[d from] raising [it] on appeal”.

Arsement v. Spinnaker Exploration Co., LLC, 400 F.3d 238, 247 (5th

Cir. 2005). We caution that Rule 50(a) motions should be far more

specific, as required by Rule 50(a)(2).

2.

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 Jordan’s sufficiency-of-the-evidence challenge fails.

Sufficient evidence was produced upon which a reasonable jury could

have found discrimination.

All of the Plaintiffs are white, except one who is Hispanic

but who was described as white in exhibits. Jordan does not

dispute Plaintiffs were qualified for the positions from which they

were terminated. The evidence showed that, within the first 72

days Jordan was in office, the racial composition of the DA’s non-

attorney staff changed from 77 whites and 56 blacks to 27 whites

and 130 blacks. Fifty-three of those terminated were white; one

was Hispanic; and two were black. Jordan does not dispute

Plaintiffs were replaced by blacks, except an investigator, whom he

claims was replaced by one of the white investigators he hired.

The evidence shows, however, that after terminating that

investigator, one of the 20 investigators fired (all white), Jordan

retained five black investigators and hired ten blacks into

investigator positions.

Attempting to show a legitimate, nondiscriminatory reason for

the terminations, Jordan presented evidence that his hiring goal

was to staff his office with persons, regardless of their race, he

knew supported him, felt strongly in favor of him, and were eager

to work for him. He emphasized his attempt to recruit a number of

white attorneys; his promotion of several incumbent whites to high-

level positions; and his decision to retain all of the former DA’s

attorney staff, which was majority white. Furthermore, Butler and

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Jordan testified the interview evaluations were not used when

making hiring decisions because the interviewers had not received

descriptions of the positions until after the interviews had been

completed. Instead, hiring decisions of new employees were based

on financial considerations, minimum qualifications,

recommendations from Jordan, shared philosophy, and work on

Jordan’s campaign and transition into office, while the retention

and termination of incumbent employees were random. Jordan claims

this use of a patronage system in making staffing decisions is

permissible under Rutan v. Republican Party of Illinois, 497 U.S.

62 (1990). Despite these claims, for the 127 hiring

recommendations, Butler was able to identify only approximately 32

that were made for political reasons.

“[A] reasonable juror certainly may infer discrimination when

an employer offers inconsistent explanations for the challenged

employment action”, as occurred at trial. Nichols v. Lewis Grocer,

138 F.3d 563, 568 (5th Cir. 1998). As for Butler’s methodology,

Jordan stated in his response letters of position to the EEOC,

admitted into evidence, that Butler’s committee considered, inter

alia, performance, employee efficiency, and previous experience, in

making recommendations for incumbent employees’ retention. Butler

testified, however, that she did not consider these factors in

making her employment recommendations. She explained that most of

9
her recommendations regarding incumbent employees were “just

random”.

Butler also testified, and Jordan asserts on appeal, that

financial considerations drove her recommendations; and, because

whites tended to be in higher-paid positions, they were more likely

to be terminated. Jordan testified at trial, however, that his

office was “not necessarily concerned in reducing the total amount

of money for nonlegal employees”, and did not cite such financial

reasons in his letter to the EEOC. Furthermore, Butler testified

that her recommendations did not result in a budget for non-

attorney personnel that was much, if at all, lower than that of the

previous DA.

Additionally, Plaintiffs presented statistical data from which

the jury could have further based its finding that race was a

motivating factor in Jordan’s staffing decisions. See Plemer v.

Parsons-Gilbane, 713 F.2d 1127, 1137 (5th Cir. 1983) (“An employee

may use statistics to show that an employer’s justification for a

discriminatory act is pretext.”); see also Walther v. Lone Star Gas

Co., 977 F.2d 161, 162 (5th Cir. 1992) (per curiam) (“We have

recognized that gross statistical disparities ... may be probative

of discriminatory intent, motive or purpose.”). Plaintiffs’

statistics showed that, as noted, on the date Jordan took office,

the racial composition of the non-attorney staff was 77 whites, 56

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blacks, two Hispanics, and one Asian; but, 72 days later, that

composition had changed to 27 whites and 130 blacks.

Of the 56 non-attorney employees Jordan terminated, 53 were

white, one was Hispanic, and two were black. Plaintiffs’

statistician testified that, according to his analyses: the

probability that 53 out of 56 terminated employees would be white

if the terminations were race-neutral was less than one in 10,000;

and the probability of the racial composition changing as it did in

Jordan’s first 72 days, if the decisions had been made randomly,

was less than one in one million.

B.

Jordan claims the court abused its discretion in admitting

into evidence EEOC determinations stating the evidence it had

reviewed supported Plaintiffs’ race-discrimination claims. He

relies on Federal Rule of Evidence 403, claiming their relevance

was far outweighed by the danger of unfair prejudice. Jordan

contends the jury could have given the determinations greater-than-

appropriate weight because they had the imprimatur of Government

approval.

Evidentiary rulings are reviewed for abuse of discretion.

E.g., Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 423 (5th

Cir. 2006). Even if an abuse of discretion is found, the error

will be considered harmless unless a substantial right of the

complaining party was affected. E.g., Compaq Computer Corp. v.

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Ergonome Inc., 387 F.3d 403, 408 (5th Cir. 2004); see FED. R. EVID.

103(a).

As a general rule, “EEOC determinations and findings of fact,

although not binding on the trier of fact, are admissible as

evidence in civil proceedings as probative of a claim of employment

discrimination”. McClure v. Mexia Indep. Sch. Dist., 750 F.2d 396,

400 (5th Cir. 1985). Jordan has not shown, pursuant to Rule 403,

how the EEOC determinations at issue were unduly prejudicial.

Accordingly, there was no abuse of discretion.

C.

As noted, Jordan’s transition team created a cultural-

diversity report (CDR) as part of its report, which provided that,

within the first 100 days of Jordan’s administration, the staff’s

racial composition should reflect that of Orleans Parish. In

instructing the jury, the district court stated it had found the

CDR constituted an invalid affirmative action plan (AAP). Jordan

objected to such a characterization in a pre-trial motion in limine

and in his post-trial JMOL motion. He contends the district

court’s instructing the jury that the CDR was an AAP requires a new

trial.

We review de novo the district court’s, as a matter of law,

characterizing the CDR as an AAP. E.g., Water Craft Mgmt. LLC v.

Mercury Marine, 457 F.3d 484, 488 (5th Cir. 2006). (Jordan does

12
not contend that, if the CDR is held to be an AAP, the district

court erred in finding it an invalid AAP.)

Our court has not defined the precise contours of an AAP.

Nevertheless, case law reveals AAPs have common characteristics.

An AAP usually gives preferential treatment to historically

disfavored and under-represented minorities. Doe v. Kamehameha

Schs./Bernice Pauahi Bishop Estate, 470 F.3d 827, 843 (9th Cir.

2006), cert. dismissed, 127 S. Ct. 2160 (2007); see also Blow v.

City of San Antonio, 236 F.3d 293, 295 (5th Cir. 2001) (AAP at

issue established departmental goals for job groups with

“significant minority or female underutilization” (internal

quotation marks omitted)). An AAP may promote hiring workers from

an under-represented race to eliminate racial imbalances in the

employer’s work force and the local work force. See United

Steelworkers of Am., AFL-CIO-CLC v. Weber, 443 U.S. 193, 198

(1979). An AAP may focus on ensuring diversity; there is no

requirement that it contain quotas or give preference to less-

qualified minority applicants for jobs or promotions. See Mlynczak

v. Bodman, 442 F.3d 1050, 1054 (7th Cir. 2006); see also Messer v.

Meno, 130 F.3d 130, 133 (5th Cir. 1997) (AAPs at issue expressed

the goal of “achiev[ing] a workplace balanced with a proportionate

number of minorities and women in the workforce” (internal

quotation marks omitted)).

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 Jordan claims the CDR is not an AAP because it does not meet

the requirements for AAPs established by the Office of Federal

Contract Compliance. Those requirements apply, however, only to

nonconstruction contractors. 41 C.F.R. § 60-2.1(a) (2000).

The CDR has characteristics AAPs generally have, as described

above. It compares the racial composition of several divisions

within the DA’s office with that of the City of New Orleans. It

then recommends: within the first 100 days of Jordan’s taking

office, “[t]he racial composition of staff at levels [sic] should

be more reflective of the Parish’s population”; and his office

should “[c]reate culturally diverse staff reflective of the ratios

of the current population”. This recommendation mirrors Jordan’s

above-described campaign promise to make his office reflect New

Orleans’ diversity. Furthermore, Jordan referred at trial to the

CDR as a “plan”.

The district court did not err in instructing the jury that

the CDR was an AAP. Despite the CDR’s lack of specific means for

achieving the desired race ratios, it sufficiently evidences, for

the purpose of its being considered an AAP, a plan to focus on race

in employment decisions and an intent to achieve a desired racial

balance.

D.

Jordan next contends damages testimony should have been

excluded, pursuant to Federal Rules of Evidence 402 and 403, until

after Plaintiffs proved discrimination. He claims the district

14
court’s failure to do so resulted in prejudicial error. Plaintiffs

respond that Jordan failed to object to the testimony’s admission

at trial and, because he cites no authority for his claim,

basically concedes the issue.

Jordan did not object at trial. As a result, our review is

only for plain error. E.g., Septimus v. Univ. of Houston, 399 F.3d

601, 606-07 (5th Cir. 2005). This standard of review requires a

clear or obvious error that affects substantial rights. E.g.,

Fiber Sys. Int’l, Inc. v. Roehrs, 470 F.3d 1150, 1158 (5th Cir.

2006). Even if these criteria are met, we have discretion whether

to grant relief; generally, it is accorded only when failure to do

so would seriously affect the fairness, integrity, or public

reputation of judicial proceedings. Id.

Failure to bifurcate a race-discrimination trial in which

evidence of damages is introduced prematurely, before

discrimination has been proven, does not result in a “fundamental

miscarriage of justice”. Bunch v. Bullard, 795 F.2d 384, 390 (5th

Cir. 1986) (internal quotation marks omitted). Accordingly,

Jordan’s claim does not survive plain-error review.

E.

Section 102 of the Civil Rights Act of 1991 allows “a Title

VII plaintiff who wins a backpay award [to] also seek compensatory

damages for ‘future pecuniary losses, emotional pain, suffering,

inconvenience, mental anguish, loss of enjoyment of life, and other

15
nonpecuniary losses’”. Landgraf v. USI Film Prods., 511 U.S. 244,

253 (1994) (emphases added) (quoting 42 U.S.C. § 1981a(b)(3)). The

Louisiana Employment Discrimination Law and 42 U.S.C. § 1981

similarly allow compensatory damages. LA. REV. STAT. ANN. §

23:303(A); Arguello v. Conoco, Inc., 207 F.3d 803, 809 n.9 (5th

Cir. 2000). Compensatory damages are reviewed for abuse of

discretion. E.g., Oden v. Oktibbeha County, Miss., 246 F.3d 458,

470 (5th Cir. 2001).

Compensatory damages, ranging from $250 to $13,500, were

awarded 35 Plaintiffs. Jordan challenges the awards on the grounds

insufficient proof of actual injury was submitted. Plaintiffs

respond: this court has held a plaintiff’s testimony alone is

sufficient support for an emotional damage claim; and they

testified to emotional harm, at the requisite level of specificity,

caused by their termination.

Compensatory damages for emotional distress and other

intangible injuries are not presumed from the mere violation of

constitutional or statutory rights, but require specific

individualized proof, including how each Plaintiff was personally

affected by the discriminatory conduct and the nature and extent of

the harm. Allison v. Citgo Petroleum Corp., 151 F.3d 402, 416-17

(5th Cir. 1998); see also Vadie v. Miss. State Univ., 218 F.3d 365,

376 (5th Cir. 2000). It is true that, “[i]n many cases, ‘a

claimant’s testimony alone may not be sufficient to support

16
anything more than a nominal damage award’”. Oden, 246 F.3d 458,

470 (5th Cir. 2001) (quoting Patterson v. P.H.P. Healthcare Corp.,

90 F.3d 927, 938 (5th Cir. 1996)). Nevertheless, corroborating

testimony and medical evidence is not required in every case

involving compensatory damages. E.g., Migis v. Pearle Vision,

Inc., 135 F.3d 1041, 1046-47 (5th Cir. 1998).

For example, in Forsyth v. City of Dallas, 91 F.3d 769, 774

(5th Cir. 1996), involving a 42 U.S.C. § 1983 retaliation claim,

this court upheld: a $100,000 emotional damages award to a

plaintiff who testified she suffered depression, weight loss,

intestinal problems, and marital problems, had to be sent home from

work because of her depression, and had to consult a psychologist;

and a $75,000 emotional damages award to a plaintiff who testified

he suffered depression, sleeplessness, and marital problems.

Similarly, in Oden, 246 F.3d at 470-71, this court upheld, against

a sufficiency-of-the-evidence challenge, Title VII compensatory

damages awarded the plaintiff based on evidence “includ[ing] his

testimony concerning stress, sleeplessness, betrayal, and shame”.

See also Migis, 135 F.3d at 1046 (upholding compensatory damages

awarded Title VII plaintiff where mental-anguish evidence consisted

solely of plaintiff’s testimony “that her termination, which came

without warning, was ‘a major inconvenience,’ and that she suffered

low self-esteem ‘not only from not having worked but from getting

terminated and not offered a position [she] thought [she] was

17
qualified for....’”, and that she suffered anxiety attacks,

financial hardship, marital hardship, major stress, sleeplessness,

and crying).

At trial, each Plaintiff testified about the personal

difficulties experienced after being terminated. Common complaints

included, inter alia, stress, sleeplessness, strained relationships

with family members, loss of appetite or weight gain, depression,

loss of self-confidence, and worsening physical problems, such as

high blood pressure, a bleeding ulcer, and hair loss.

Such complaints are included as possible manifestations of

emotional harm in EEOC guidelines. EEOC Policy Guidance No.

915.002 § II(A)(2) (14 July 1992) (manifestations of emotional harm

include “sleeplessness, anxiety, stress, depression, marital

strain, humiliation, emotional distress, loss of self esteem,

excessive fatigue, ... a nervous breakdown[,] ... ulcers,

gastrointestinal disorders, hair loss, or headaches”); see also

Patterson, 90 F.3d at 940 (overturning award for emotional damages

where plaintiff presented no testimony of any manifestations of

harm listed in the EEOC policy statement). Although Jordan

implicitly questions the veracity of Plaintiffs’ testimony, by

noting the “potential abuse” of not requiring corroborating

testimony when symptoms match those listed in the EEOC guidelines,

the credibility of Plaintiffs’ testimony was a matter for the jury,

whose judgment is represented by the varying damages amounts.

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 A life span development psychologist testified regarding his

examination of three Plaintiffs party to this appeal. Based on his

examination of these persons for 45 minutes to one hour, he

described the symptoms they complained of and their likelihood of

being due to job loss. He noted their being upset about losing

their jobs, depression, weight gain, anxiety, financial difficulty,

and sleeplessness. He described such complaints as “common of

people who lose their jobs”.

The jury awarded a range of compensatory damages, which are

lower than awards we have previously upheld based only on a

plaintiff’s testimony. E.g., Forsyth, 91 F.3d at 774. The

compensatory-damages awards appear to be sufficiently supported by

the type and degree of harm each Plaintiff testified to having

experienced. For example, one Plaintiff, awarded $250, testified

she was “very angry”; suffered anxiety attacks, for which she was

prescribed medication, until she obtained permanent employment

elsewhere; and had a difficult relationship with her spouse, who

had recently been diagnosed with an incurable muscle disease.

Another Plaintiff, awarded $1250, testified to being stunned and

numb for two weeks following his termination, losing some sleep,

and having difficulty adjusting to a change in administration at

his new workplace due to his negative experience at the DA’s

office. Another Plaintiff, awarded $10,500, testified to ongoing

sleep and appetite loss, depression, problems with his wife, and

19
anger. Another, awarded $13,500, testified regarding his inability

to visit his son before he went to Iraq due to financial hardship,

his wife’s having to return to full-time work, and ongoing

sleeplessness, depression, and irritability.

“Judgments regarding noneconomic damages are notoriously

variable”. Forsyth, 91 F.3d at 774. The jury could have

reasonably considered these individual complaints as justifying the

Plaintiffs’ varying and non-excessive compensatory damages. Jordan

has not shown an abuse of discretion.

F.

Jordan contends that, during closing argument, Plaintiffs’

counsel made improper statements that misled the jury and

influenced the verdict, providing grounds for a new trial. Because

Jordan failed to object to any of the statements at trial, our

review is again only for plain error. United States v. Hitt, 473

F.3d 146, 161 (5th Cir. 2006), cert. denied, 127 S. Ct. 2083, 127

S. Ct. 2893 (2007).

“Improper argument warrants reversal when, ‘taken as a whole

in the context of the entire case, [it] prejudicially affect[ed]

substantial rights of the defendant.’” Id. at 161 (quoting United

States v. Corona, 551 F.2d 1386, 1388 (5th Cir. 1977)) (alterations

in original). See also Daniel v. Ergon, Inc., 892 F.2d 403, 411

(5th Cir. 1990) (“In determining the effect of statements made

20
during closing argument, we consider the record as a whole and not

merely isolated remarks.”).

1.

Jordan claims Plaintiffs’ counsel improperly testified as an

expert by advising the jury in his opening closing argument that

“[t]he EEOC doesn’t find cause that often”; and, in rebuttal,

stating, “I used to be a lawyer with the EEOC”, and providing

personal knowledge of EEOC processes not in the record. For the

first contested comment, Jordan’s counsel responded, however, in

closing argument that the EEOC “litigate[s] all the time [and] ...

could have brought this case themselves. There are lawyers at the

Justice Department who do just that. If the EEOC felt strongly

about this case, where were they when it came time to litigate

it?”. This statement was equally outside the record and offered a

counterpoint to Plaintiffs’ counsel’s statement concerning the

EEOC’s not often finding cause.

Further, viewing in context Plaintiffs’ counsel’s statement in

his rebuttal closing argument (about being an EEOC lawyer), it is

clear he was disputing Jordan’s counsel’s statement. Plaintiffs’

counsel said:

Let’s talk about the EEOC determinations.
Counsel misrepresented. The EEOC does not
file lawsuits in regard to public entities.
The Justice Department in Washington does that
with regard to public entities. I used to be
a lawyer with the EEOC. And I’m going to tell
you this. The facts of the EEOC charges are
these. [A Plaintiff] went to the EEOC on a
Friday afternoon, filed her charge, and they

21
 dismissed it Tuesday without doing any
investigation. Reopened it and investigated
it for a year. And found cause. Counsel
didn’t tell you that.

These comments reflect a back-and-forth between opposing

viewpoints. Although obviously improper, they constituted harmless

error. Moreover, they certainly did not impact the integrity of

the judicial process.

2.

Regarding the above quote from rebuttal closing argument,

Jordan claims Plaintiffs’ counsel accused his counsel of dishonesty

concerning the EEOC investigation and thereby improperly weakened

the credibility of Jordan and his counsel. As noted, Plaintiff’s

counsel’s statement on rebuttal closing argument, that the defense

misrepresented the EEOC’s process of filing lawsuits and handling

of Plaintiffs’ charges, followed Jordan’s argument about the EEOC

litigation and investigation processes. Plaintiff’s counsel’s

comment was brief and responsive to Jordan’s. It did not affect

Jordan’s substantial rights. As a result, it too falls short on

plain-error review.

3.

Finally, Jordan claims Plaintiffs’ counsel improperly

testified to expert-witnesses hearsay statements not introduced in

evidence, by stating:

Remember. Let me tell you this: It doesn’t
take a Ph.D. in industrial psychology to
figure out those numbers. And that’s what Dr.
McDaniel told me the first day I talked to

22
 him. Do you know what else? Do you know what
Dr. Kenny told them? You didn’t hear it, but
let me tell you what he told them. I can’t
touch the firing decisions. That’s why this
has got to be a hiring case.

These comments relating to the expert witnesses were again

obviously improper; but, they were of limited duration. Viewed in

the context of the entire case, they likewise do not meet the

plain-error standard because they did not affect Jordan’s

substantial rights.

G.

Plaintiffs seek attorney’s fees for their successful defense

of this appeal. “A long and consistent line of Fifth Circuit

precedent allows awards of attorneys’ fees for both trial and

appellate work.” Norris v. Hartmarx Specialty Stores, Inc., 913

F.2d 253, 257 (5th Cir. 1990). Accordingly, we award Plaintiffs

attorney’s fees for this appeal and remand to district court for

the amount to be determined.

III.

For the foregoing reasons, the judgment is AFFIRMED; and this

matter is REMANDED to district court for determination of

attorney’s fees.

AFFIRMED and REMANDED

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