Harris v. FedEx Corporate Services

Case: 23-20035 Document: 00517053433 Page: 1 Date Filed: 02/01/2024

United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit

____________ FILED
February 1, 2024
No. 23-20035 Lyle W. Cayce
____________ Clerk

Jennifer Harris,

Plaintiff—Appellee,

versus

FedEx Corporate Services, Inc.,

Defendant—Appellant.
______________________________

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:21-CV-1651
______________________________

Before Southwick, Engelhardt, and Wilson, Circuit Judges.
Cory T. Wilson, Circuit Judge:
This appeal arises from a $366,160,000 jury verdict in favor of
Plaintiff-Appellee Jennifer Harris and against Defendant-Appellant FedEx
Corporate Services, Inc. (FedEx) for retaliation claims under 42 U.S.C.
§ 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–
2000e17. FedEx challenges the jury’s verdict, the damages awarded, and the
district court’s denial of a new trial due to the court’s admission of Harris’s
expert’s flawed testimony.
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As we will discuss, Harris’s § 1981 claims were time-barred under her
employment contract, so they fail as a matter of law. Otherwise, the evidence
was sufficient to support the jury’s verdict for Harris on her Title VII
retaliation claim. But in view of Title VII’s $300,000 cap on damages and
the evidence presented at trial, we remit Harris’s compensatory damages to
$248,619.57, and conclude she was not entitled to punitive damages.
Likewise, FedEx is not entitled to a new trial because of the court’s
evidentiary ruling.
I.
A.
FedEx hired Harris, an African American woman, in 2007 as an
Account Executive in sales. Relevant to this appeal, her employment
contract contained a “Limitation Provision,” which provides that “[t]o the
extent the law allows an employee to bring legal action against the Company,
[Harris] agrees to bring that complaint within the time prescribed by law or 6
months from the date of the event forming the basis of [her] lawsuit,
whichever expires first.” Harris was successful at her job, and FedEx
promoted her to District Sales Manager in 2017. Her new supervisor was
Michelle Lamb, a white woman.
Harris’s new position required her to lead a team of eight Account
Executives responsible for making sales in the Houston area. FedEx partly
measured Harris’s success by her team’s sales. She was initially successful
in her new role, so much that FedEx recognized her with an award in 2018.
However, according to FedEx, Harris’s and her team’s performance started
declining in mid-2018. From October 2018 to February 2019, Harris and
Lamb met more than ten times to discuss strategies to improve Harris’s
team’s performance. Despite those meetings, FedEx alleges Harris’s sales
continued to lag other teams.

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In early March 2019, Lamb suggested Harris step down as a District
Sales Manager. Harris was “blindsided” because “Lamb had not discussed
any areas in which Harris needed to grow” in any of their prior meetings.
Shortly thereafter, on March 11, Harris sent her first e-mail to a FedEx Vice
President accusing Lamb of race discrimination. Human Resources (HR)
advisor Michael Clark immediately opened an investigation, which he
concluded on June 3. Clark interviewed six witnesses and completed a
detailed analysis of each of Harris’s allegations. He ultimately concluded
that Harris’s discrimination claims were unsubstantiated but recommended
that Lamb be coached “to ensure she responds accordingly to all of her
managers regarding work related questions.”
FedEx policy did not allow Lamb to discipline Harris during an
ongoing HR investigation. But on June 26, Lamb gave Harris a “Letter of
Counseling for Unacceptable Performance.” The letter required Harris to
create a Performance Improvement Plan “highlighting the specific goals and
activities [she] [would] focus[] on to improve [her] team’s performance and
accountability.” It further advised Harris that “recurrent patterns of [her]
performance [would] not be tolerated” and might result in her termination.
Two days later, Harris filed another internal complaint against Lamb,
averring the letter was retaliation for her first discrimination complaint.
Clark opened another investigation, which he concluded on September 6. He
interviewed three witnesses and completed a detailed analysis of each of
Harris’s allegations. He again determined that Harris’s claims were
unsubstantiated, finding that “Lamb’s decision to issue discipline to [Harris]
was in line with the unacceptable performance that [Harris] and her direct
reports continue to demonstrate.”
On September 13, Lamb gave Harris a second “Letter of Warning,”
requiring Harris to submit another Performance Improvement Plan and

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advising her again that failure to improve her performance might result in her
termination. A week later, Harris submitted a third internal complaint. Clark
again opened an investigation, interviewed two witnesses, completed a
detailed analysis of each of Harris’s allegations, and concluded on December
31 that Harris’s claims were unsubstantiated.
On January 7, 2020, Lamb submitted a Request for Termination to
HR, citing Harris’s continued poor performance and failure to meet the
terms of her two Performance Improvement Plans. HR approved the
request, and FedEx fired Harris, effective January 8.
B.
Harris filed suit in May 2021, sixteen months after FedEx fired her.
She alleged race discrimination and retaliation under 42 U.S.C. § 1981. After
months of discovery, FedEx moved for summary judgment, arguing inter alia
that Harris’s claims were time-barred by the six-month Limitation Provision
in her contract. Harris responded and moved to amend her complaint to add
claims for discrimination and retaliation under Title VII. The district court
denied FedEx’s motion and granted Harris leave to amend. It concluded that
the Limitation Provision “cut[] against public policy and sidestep[ped] a
federal administrative process designed to meet and defeat long-standing
policies of bias and discrimination in the workplace.” Thus, in October 2022,
Harris’s § 1981 claims proceeded to trial, along with her new Title VII claims.
At trial, FedEx presented evidence that it fired Harris because of her
poor performance, not based on discrimination or in retaliation for her
complaints. In response, Harris offered evidence of pretext to rebut FedEx’s
non-discriminatory and non-retaliatory reason. That evidence included
(1) the temporal proximity between the filing of her internal complaints and
FedEx’s disciplinary actions; (2) that white employees had underperformed
but had not been placed on a Performance Improvement Plan or terminated;

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(3) that the only other person who was fired had also filed a discrimination
complaint; and (4) that Lamb told HR that she had “extreme concern with
[Harris’s] behavior” because Harris was “taking the approach of arguing
with [Lamb] about many things” and “demonstrating an insubordinate
attitude.”
As her first trial witness, Harris called Coneisha Sherrod to testify as
a “human resources expert.” After the district court overruled FedEx’s
objections, 1 Sherrod testified that FedEx “didn’t follow normal protocol and
procedure, and that discrimination and retaliation did occur.” But Sherrod
admitted on cross-examination that her testimony was based only on her
review of Harris’s complaint, and she conceded that she did not have any
knowledge of FedEx’s HR policies and procedures.
After Harris presented her evidence, FedEx moved for judgment as a
matter of law. It argued that Harris’s § 1981 claims were time-barred by the
Limitation Provision in her contract; her evidence was insufficient to support
her discrimination and retaliation claims; and punitive damages were
unwarranted because Harris had failed to prove malice or reckless
indifference. The district court denied FedEx’s motion. As with FedEx’s
motion for summary judgment, the district court determined that the
Limitation Provision did not apply. But instead of relying on its former
reasoning that the Limitation Provision “cut against public policy,” it held
that the Limitation Provision applied only to lawsuits “arising out of
[Harris’s] contract of employment.” The district court also found that

_____________________
1
FedEx had filed a motion pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993), before trial to exclude Sherrod’s testimony, which the district court
also denied.

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Harris presented sufficient evidence to support her discrimination and
retaliation claims and to submit the issue of punitive damages to the jury.
FedEx presented its case; the parties gave their closing arguments;
and the jury deliberated for two days. The jury returned a verdict on October
25, 2022, finding that FedEx had not discriminated against Harris, but that it
had retaliated against her. The jury awarded her $120,000 for “[p]ast pain
and suffering, inconvenience, [and] mental anguish” and $1,040,000 for
“[f]uture pain and suffering, inconvenience, mental anguish, and loss of
enjoyment of life.” 2 It also found that Harris was entitled to punitive
damages and awarded Harris an additional $365,000,000. Thus, the jury’s
verdict totaled $366,160,000.
Harris moved for entry of judgment in November 2022. FedEx
responded, informing the district court that it intended to file post-trial
motions. Subsequently, FedEx moved under Federal Rules of Civil
Procedure 50(b) and 59 for judgment as a matter of law or in the alternative,
for remittitur or a new trial. It renewed its arguments from its motion for
judgment as a matter of law and added three new arguments: Harris’s
compensatory damages should be remitted pursuant to the maximum
recovery rule; the punitive damages award was unconstitutionally excessive;
and FedEx was entitled to a new trial based on Sherrod’s testimony. 3 But the
district court did not rule on FedEx’s post-trial motions. 4 Instead, it entered

_____________________
2
For reasons not apparent from the record, the district court stated Harris was
awarded $1,060,000 in future damages in its final judgment. That number contradicts the
jury’s verdict form.
3
FedEx made additional arguments but does not renew them on appeal.
4
“We treat the district court’s entry of final judgment as an implicit denial of any
outstanding motions, even if the court does not explicitly deny a particular motion.”
Edwards v. 4LJ, L.L.C., 976 F.3d 463, 465 (5th Cir. 2020) (internal quotations omitted).

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final judgment in February 2023 and ordered FedEx to pay Harris
$366,060,000. 5
II.
FedEx raises five issues on appeal: (A) whether the Limitation
Provision in Harris’s contract barred her § 1981 claims; (B) whether Harris
presented sufficient evidence at trial to support her retaliation claim;
(C) whether our maximum-recovery rule limits Harris’s compensatory
damages; (D) whether Harris presented sufficient evidence at trial to warrant
punitive damages and whether the damages awarded were unconstitutionally
excessive; and (E) whether FedEx is entitled to a new trial based on the
district court’s admission of Sherrod’s testimony. We examine each in turn.
A.
FedEx first challenges the district court’s denial of its motion for
judgment as a matter of law as to Harris’s § 1981 claims. We review that
issue de novo. Nobach v. Woodland Vill. Nursing Ctr., Inc., 799 F.3d 374, 377
(5th Cir. 2015).
FedEx contends that the Limitation Provision unambiguously applies
to Harris’s § 1981 claims and is reasonable and enforceable. Harris counters
that the Limitation Provision is not enforceable because (1) she did not
knowingly and voluntarily accept it; (2) the Limitation Provision only applies
to lawsuits arising out of her employment contract, not to discrimination or
retaliation claims; (3) the six-month limitation period is unreasonable as
applied to § 1981 claims; and (4) the Limitation Provision is unenforceable

_____________________
5
As stated in note 2, the district court’s judgment awarded $1,060,000 in future
damages instead of the $1,040,000 set forth in the jury’s verdict. It further subtracted
$100,000 from the final award without explanation, resulting in the $366,060,000
judgment.

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under Texas law. We agree with FedEx that the Limitation Provision
included in the parties’ contractual agreement bars Harris’s § 1981 claim.
Harris’s first two counterarguments are easily dispatched. She asserts
she did not knowingly and voluntarily accept the Limitation Provision
because it was in “small, hard-to-read print” and “[s]he does not remember
reading th[e] provision and no one pointed it out to her.” But “parties to a
contract have an obligation to protect themselves by reading what they sign
and, absent a showing of fraud, cannot excuse themselves from the
consequences of failing to meet that obligation.” In re Lyon Fin. Servs., Inc.,
257 S.W.3d 228, 233 (Tex. 2008). Harris is not excused from the Limitation
Provision simply because she did not read it.
Harris next adopts the district court’s reasoning that the Limitation
Provision is a “self-contained provision” that only applies to “lawsuits about
events arising out of [the] contract of employment, not discrimination or
retaliation claims.” But that interpretation is contrary to the plain language
of the contract. The phrase “legal action” is not confined to claims arising
out of Harris’s employment contract. Instead, it is modified by the phrase
“[t]o the extent the law allows.” That language is broad enough to
encompass retaliation and discrimination claims.
For her third argument—that a six-month limitation period is
unreasonable as applied to § 1981 claims—Harris relies on Burnett v.
Grattan, 468 U.S. 42 (1984). In Burnett, the Court declined to apply
Maryland’s six-month statute of limitations for filing employment
discrimination complaints to the plaintiffs’ § 1981 claims. Id. at 49–55. It
reasoned that “borrowing an administrative statute of limitations ignores the
dominant characteristic of civil rights actions: they belong in court.” Id. at
50. The Court explained that “[l]itigating a civil rights claim requires
considerable preparation,” and applying a six-month statute of limitations is

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“manifestly inconsistent with the central objective of the Reconstruction-Era
civil right statutes, which is to ensure that individuals whose federal
constitutional or statutory rights are abridged may recover damages or secure
injunctive relief.” Id. at 50, 55.
But there is an important distinction between Burnett and this case:
FedEx is not asking us to enforce a state statute, but rather a contractual
limitation provision. And “it is well established that . . . a provision in a
contract may validly limit . . . the time for bringing an action on such contract
to a period less than that prescribed in the general statute of limitations,
provided that the shorter period itself shall be a reasonable period.” Order of
United Com. Travelers of Am. v. Wolfe, 331 U.S. 586, 608 (1947); see also
Heimeshoff v. Hartford Life & Accident Ins. Co., 571 U.S. 99, 107 (2013)
(applying Wolfe in the ERISA context). The question, therefore, is whether
a six-month contractual limitation is reasonable as applied to § 1981 claims.
Other courts have concluded that it is. E.g., Thurman v.
DaimlerChrysler, Inc., 397 F.3d 352, 357–58 (6th Cir. 2004); Taylor v. W. &
S. Life Ins. Co., 966 F.2d 1188, 1202–06 (7th Cir. 1992); Njang v. Whitestone
Grp., Inc., 187 F. Supp. 3d 172, 178–79 (D.D.C. 2016). “[B]y enacting section
1981 without a statute of limitations, Congress implied that it is willing to live
with a wide range of state statutes and rules governing limitations of actions
under section 1981.” Taylor, 966 F.2d at 1205. And in Njang, then-Judge
Ketanji Brown Jackson explained that a six-month limitation period for
§ 1981 claims is not unreasonable because, unlike Title VII claims, “there are
no time-consuming procedural prerequisites that a plaintiff must satisfy
before she brings her claim in court.” 187 F. Supp. 3d at 179 (citing Johnson
v. Ry. Express Agency, Inc., 421 U.S. 454, 466 (1975)). 6 She further noted that
_____________________
6
FedEx rightfully does not assert that the Limitation Provision applies to Harris’s
Title VII claims. Unlike § 1981 claims, a plaintiff alleging claims under Title VII must first

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a six-month period is not “inherently unreasonable” because such a period
is “prescribed in various other federal laws.” Id. (citing DelCostello v. Int’l
Bhd. of Teamsters, 462 U.S. 151, 169–72 (1983)). We find Justice Jackson’s
reasoning persuasive and see no reason to depart from other circuits on this
issue. The Limitation Provision in Harris’s contract is reasonable as applied
to her § 1981 claims.
Fourth and finally, Harris contends that, even if the Limitation
Provision is reasonable, it is unenforceable under Texas law. She cites Texas
Civil Practice & Remedies Code § 16.070, which states:
[A] person may not enter a stipulation, contract, or agreement
that purports to limit the time in which to bring suit on the
stipulation, contract, or agreement to a period shorter than two
years. A stipulation, contract, or agreement that establishes a
limitations period that is shorter than two years is void . . . .

Harris did not raise this argument in the district court. Generally, “[a] party
forfeits an argument by failing to raise it in the first instance in the district
court—thus raising it for the first time on appeal . . . .” Rollins v. Home Depot
USA, 8 F.4th 393, 397 (5th Cir. 2021). True, we have discretion to consider
a forfeited issue if “it is a purely legal matter and failure to consider the issue
will result in a miscarriage of justice.” Id. at 398 (quoting Essinger v. Liberty
Mut. Fire Ins. Co., 534 F.3d 450, 453 (5th Cir. 2008)). “But what constitutes
a pure legal question or a miscarriage of justice is ‘a question with no certain
answer.’” Id. (quoting Essinger, 534 F.3d at 453).

_____________________
file a charge of discrimination with the EEOC. See 42 U.S.C. § 2000e-5(e)(1). Typically,
a plaintiff must then wait 180 days before she can file suit. See id. § 2000e-5(f)(1). Thus, a
six-month contractual limitation provision for Title VII claims would be unreasonable
because it would amount to “‘a practical abrogation of the right of action’ under Title VII.”
Njang, 187 F. Supp. 3d at 179–81 (quoting Taylor, 966 F.2d at 1205–06).

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Regardless, we find no miscarriage of justice here. Harris could have
raised the issue in her response to FedEx’s motion for summary judgment
before trial or in her response to FedEx’ motion for judgment as a matter of
law during trial, but she did not. On substance, Harris cites no authority from
Texas or this court applying § 16.070 to any cause of action other than a
breach-of-contract claim. But see Celaya v. Am. Pinnacle Mgmt. Servs., LLC,
No. 3:13-CV-1096, 2013 WL 4603165, at *5 (N.D. Tex. Aug. 29, 2013)
(collecting contrary cases and holding that § 16.070 did not apply to
plaintiff’s Title VII and § 1981 claims). All told, “[w]e see no principled basis
for addressing [Harris’s] forfeited argument here.” Rollins, 8 F.4th at 398.
To sum up: The Limitation Provision in Harris’s contract is
reasonable and enforceable, and the district court erred by allowing Harris’s
§ 1981 claims to proceed to trial. That determination has outsized
importance here because § 1981 claims are not subject to statutory caps, but
Title VII claims are. See 42 U.S.C. § 1981a(a)(1) (allowing recovery of
compensatory and punitive damages under Title VII “provided that the
complaining party cannot recover under section 1981”); id. § 1981a(b)(3)(D)
(capping damages, inclusive of punitive damages, at $300,000). Because we
reverse the district court’s denial of FedEx’s motion for judgment as a matter
of law as to Harris’s § 1981 claims, the most she can recover is $300,000. 7

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7
Our dismissal of Harris’s § 1981 retaliation claim has no bearing on the jury’s
finding for Harris on her Title VII retaliation claim. Though “the remedies available under
Title VII and under § 1981 . . . are separate, distinct, and independent,” Johnson, 421 U.S.
at 461, we (and the jury) analyze them under the same evidentiary framework, Sanders v.
Christwood, 970 F.3d 558, 561 n.7 (5th Cir. 2020) (quoting Lawrence v. Univ. of Tex. Med.
Branch at Galveston, 163 F.3d 309, 311 (5th Cir. 1999)).

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B.
FedEx next contends that Harris did not present sufficient evidence
to substantiate her retaliation claim. We review a post-verdict challenge to
the sufficiency of the evidence using the same standard the district court used
in first passing on the motion, namely whether “a reasonable jury would not
have a legally sufficient evidentiary basis to find for the party on that issue.”
Nobach, 799 F.3d at 377–78 (quoting Fed. R. Civ. P. 50(a)(1)). We
consider all the evidence in the record, Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000), “draw[ing] all reasonable inferences in the
light most favorable to the verdict,” E.E.O.C. v. Boh Bros. Const. Co., 731 F.3d
444, 453 (5th Cir. 2013). We may not make credibility determinations, weigh
evidence, or draw inferences because those “are jury functions, not those of
a judge.” Reeves, 530 U.S. at 150 (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986)). “[A] Rule 50 motion must be denied ‘unless the facts
and inferences point so strongly and overwhelmingly in the movant’s favor
that reasonable jurors could not reach a contrary conclusion.’” Wantou v.
Wal-Mart Stores Tex., L.L.C., 23 F.4th 422, 431 (5th Cir. 2022) (alteration in
original) (quoting Flowers v. S. Reg’l Physician Servs. Inc., 247 F.3d 229, 235
(5th Cir. 2001)), cert. denied, 143 S. Ct. 745 (2023).
Initially, Harris was required to succeed under the McDonnell Douglas
burden shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S.
792, 800–06 (1973); Laxton v. Gap Inc., 333 F.3d 572, 577–79 (5th Cir. 2003).
But “[t]he McDonnell Douglas formula . . . is applicable only in a directed
verdict or summary judgment situation and is not the proper vehicle for
evaluating a case that has been fully tried on the merits.” Kanida v. Gulf
Coast Med. Pers. LP, 363 F.3d 568, 575 (5th Cir. 2004) (internal quotations
and citation omitted). Accordingly, “[p]ost-trial, the [McDonnell Douglas]
framework becomes moot . . . .” Adams v. Groesbeck Indep. Sch. Dist., 475
F.3d 688, 691 (5th Cir. 2007) (citing Bryant v. Compass Grp. USA Inc., 413

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F.3d 471, 476 (5th Cir. 2005)). 8 Thus, “[w]e 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, 413 F.3d at 476 (quoting Vaughn v. Sabine
County, 104 F. App’x 980, 982 (5th Cir. 2004)). Instead, we need only decide
“whether the record contains sufficient evidence for a reasonable jury to
determine that [FedEx’s] stated reason for terminating [Harris] was pretext
[for retaliation].” Id.
“Pretext can be proven by any evidence that casts doubt on the
credence of the employer’s proffered justification for the adverse
employment action.” Brown v. Wal-Mart Stores E., L.P., 969 F.3d 571, 578
(5th Cir. 2020). One way to show pretext is by providing evidence that
similarly situated employees were treated more favorably. See id. at 580. And
while temporal proximity between a protected activity and an adverse
employment action is not sufficient by itself to demonstrate pretext, “other
evidence, in combination with . . . temporal proximity, is sufficient for a
reasonable jury to find but-for causation.” Id. at 579.
Harris’s strongest evidence of pretext at trial was that she was treated
less favorably than similarly situated employees. Specifically, she offered
evidence that other District Sales Managers performed the same or worse
than she did but were not given warnings and were not fired. Further
bolstering her retaliation claim, Harris presented evidence that the only other
employee who was terminated for poor performance also filed a
discrimination complaint. FedEx attempts to refute that evidence by

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8
Likewise, the district court, correctly, did not frame the jury instructions “based
upon the intricacies of the McDonnell Douglas burden shifting analysis.” Kanida, 363 F.3d
at 576. Instead, the jury only considered “the ultimate question of whether [FedEx] took
the adverse employment action against [Harris] because of her protected status.” Id.

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asserting that Harris’s comparators were not similarly situated because they
performed better than Harris overall. But as FedEx notes in its own reply
brief, “[c]onstrued in Harris’s favor, the evidence at trial demonstrated, at
most, that certain of her sales numbers were better than certain of her peers’
numbers at certain times.” To accept FedEx’s view of the evidence and
reject the jury’s, we would necessarily wade into making credibility
determinations, weighing the evidence, and drawing inferences. This we
cannot do. See Reeves, 530 U.S. at 150–51 (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986)).
Harris also provided other evidence of pretext. She showed temporal
proximity between the filing of her internal complaints and Lamb’s
disciplinary actions; each adverse employment action took place less than a
month after an internal investigation into Harris’s protected activities. 9 And
on cross-examination Lamb testified that she told HR that she had “extreme
concern with [Harris’s] behavior” because Harris was “taking the approach
of arguing with [Lamb] about many things” and “demonstrating an
insubordinate attitude.” That evidence could be viewed as further
supporting the jury’s verdict.
Admittedly, FedEx presented substantial evidence that Harris was
terminated because of her poor performance, not in retaliation for her
discrimination complaints. Arguably, the temporal proximity of Harris’s
internal complaints and FedEx’s adverse employment actions was also self-
generated, in that there was a pattern of Harris filing a complaint when she
knew adverse action was imminent. But considering all of Harris’s evidence
and resolving credibility determinations in favor of the verdict, “we cannot

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9
As noted, FedEx policy did not allow Lamb to discipline Harris while an
investigation was ongoing.

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say the jury’s verdict is against the great weight of the evidence or that a
reasonable person could only have reached an opposite decision.” Wantou,
23 F.4th at 437. “Although we might reach a different result if we considered
the claim in the first instance, that is not the role of the appellate court.” Id.
Given the great deference owed to jury verdicts, we find that Harris
presented sufficient evidence to support her retaliation claim.
C.
Having determined that Harris presented sufficient evidence to
support her retaliation claim, we now examine whether that evidence
supports the jury’s compensatory damages award. “There is a strong
presumption in favor of affirming a jury award of damages.” Eiland v.
Westinghouse Elec. Corp., 58 F.3d 176, 183 (5th Cir. 1995). “The damage
award may be overturned only upon a clear showing of excessiveness or upon
a showing that the jury was influenced by passion or prejudice.” Id.
“However, when this court is left with the perception that the verdict is
clearly excessive, deference must be abandoned.” Id. “A verdict is excessive
if it is ‘contrary to right reason’ or ‘entirely disproportionate to the injury
sustained.’” Id. (quoting Caldarera v. E. Airlines, Inc., 705 F.2d 778, 784 (5th
Cir. 1983)). “When deciding whether a jury award is excessive, we consider
the amount of the award after application of the statutory cap, not the amount
given by the jury.” Giles v. Gen. Elec. Co., 245 F.3d 474, 487 (5th Cir. 2001).
Generally, we use the maximum recovery rule to determine whether
damages are excessive. See Longoria v. Hunter Express, Ltd., 932 F.3d 360,
364–65 (5th Cir. 2019). 10 The maximum recovery rule requires us to “look[]

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10
This court “ha[s] been inconsistent about where in the analysis the [maximum
recovery] rule has a role.” Longoria, 932 F.3d at 365. “Sometimes we apply maximum
recovery at the outset to determine whether the damages are excessive.” Id. (collecting
cases). “Other times we use the rule only to determine how much of a reduction is

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to other published decisions from the relevant jurisdiction . . . involving
comparable facts.” Id. at 365. “The relevant jurisdiction for federal
discrimination law can only mean cases decided by this court.” Salinas v.
O’Neill, 286 F.3d 827, 832 (5th Cir. 2002) (internal quotations omitted).
“When ‘defects in the award are readily identifiable and measurable,’
remittitur ordinarily is appropriate.” Wantou, 23 F.4th at 431 (quoting
Matter of 3 Star Props., L.L.C., 6 F.4th 595, 613 (5th Cir. 2021)). We have
discretion either to set the remitted verdict or to remand the case for the
district court to do so. Longoria, 932 F.3d at 368.
Because Harris’s § 1981 claims are time-barred and Title VII’s
statutory cap otherwise applies, see supra Part II.A, the question before us is
whether an award of $300,000 is excessive in this case. See Giles, 245 F.3d
at 487. Several prior cases serve as possible analogues.
FedEx offers two employment discrimination cases to argue that we
should limit Harris’s compensatory damages to $15,000. 11 See Vadie v. Miss.
State Univ., 218 F.3d 365 (5th Cir. 2000); Patterson v. P.H.P. Healthcare
Corp., 90 F.3d 927 (5th Cir. 1996). In Vadie, the jury awarded the plaintiff
$350,000 in compensatory damages for emotional distress, which the district
court reduced to $300,000 based on Title VII’s statutory cap. 218 F.3d at
370. The only evidence supporting emotional damages was the plaintiff’s
own brief testimony that failing to get the job as a professor “destroyed” him,
“totally ruined” him, and he became “sick, totally ill, physical, mentally, and

_____________________
warranted after deciding the award is excessive.” Id. (same). Because this case arises
under federal law, this inconsistency is of no moment to our analysis. See id. at 364–66
(explaining that the issue may matter in diversity cases).
11
FedEx calculated its $15,000 number by multiplying our award of $10,000 in
Vadie by 150%. We discuss the appropriate way to calculate remittitur using the maximum
recovery rule below.

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everything.” Id. at 377. Though this court held that Vadie’s “testimony was
sufficient to support a finding of actual injury,” the panel remitted his
compensatory damages from $300,000 to $10,000 because the record was
“devoid of any specific evidence whatsoever supporting Dr. Vadie’s broad
assertions of emotional injury.” Id. at 377–78.
In Patterson, the district court, after a bench trial, awarded one plaintiff
$40,000 in emotional damages under § 1981 and another plaintiff $150,000
in emotional damages under Title VII. 90 F.3d at 937. The § 1981 plaintiff’s
sole evidence was his own testimony that he felt “frustrated” and “real
bad,” and that his work environment was “tearing [his] self-esteem down.”
Id. at 939. The Title VII plaintiff’s sole evidence was her testimony that she
was “emotionally scarred” after her termination and “that she endured a
great deal of familial discord” because she had to leave her children to look
for other jobs. Id. at 940–41. This court held that the plaintiffs’ limited
testimony did not support the district court’s damages awards and remanded
with instructions for the district court to award nominal damages. Id. Our
court noted that “[h]urt feelings, anger[,] and frustration are part of life,”
and clarified that “[u]nless the cause of action manifests some specific
discernable injury to the claimant’s emotional state,” then substantial
emotional damages are not warranted. Id. at 940.
Harris counters with four published decisions where the plaintiffs
were awarded between $100,000 and $150,000 for emotional damages in
Title VII cases. 12 See Salinas, 286 F.3d at 827; Giles, 245 F.3d at 474;
_____________________
12
Harris initially contends that the maximum recovery rule is not implicated
because her case “presents unique facts for which there are no controlling cases.”
Learmonth v. Sears, Roebuck & Co., 631 F.3d 724, 739 (5th Cir. 2011). But Learmonth was a
personal injury case where the plaintiff suffered traumatic injuries that required treatment
for the rest of her life. Id. at 738. Nothing in the record suggests that Harris’s claim is
materially different than other retaliation cases.

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Williams v. Trader Publ’g Co., 218 F.3d 481 (5th Cir. 2000); Forsyth v. City of
Dallas, 91 F.3d 769 (5th Cir. 1996). Two are particularly noteworthy.
In Salinas, the plaintiff and his wife testified about “Salinas’s loss of
self-esteem, feelings of not being a competent agent, loss of sleep, stress,
paranoia, fear of future retaliation, and high blood pressure,” as well as his
numerous trips to the doctor. 286 F.3d at 829–30, 832. As in this case, the
jury awarded Salinas one million dollars in compensatory damages, which the
district court reduced to $300,000 based on Title VII’s statutory cap. Id. at
829. This court distinguished Salinas’s case from Vadie, observing that
Salinas “offered a much more detailed description of the emotional harm he
suffered,” and that his testimony was corroborated by his wife. Id. at 832–
33. Even then, our court held that “Salinas ha[d] not presented enough
evidence to support an award of $300,000.” Id. at 833. Rather, “a
comparison with other emotional damages awards . . . stemming from
discrimination point[ed] to $100,000 as the proper award.” Id.
In Giles, the jury awarded the plaintiff $400,000 in compensatory
damages, which the district court reduced to $300,000. 245 F.3d at 487. At
trial, Giles “primarily [relied] on his own testimony to support his contention
of emotional distress,” but he also offered testimony from a co-worker. Id.
at 488. Giles testified that he had “trouble sleeping, suffered headaches and
marital difficulties, and lost the prestige and social connections associated
with his position at GE.” Id. His co-worker testified that Giles “appeared
despondent, depressed, down and absolutely utterly discouraged about not
being able to come back to work.” Id. This court determined that Giles’s
and his co-worker’s testimony was “specific enough to allow a jury to award
compensatory damages.” Id. at 489. But the panel remitted the amount to
$100,000 because “[t]he symptoms of which Giles complain[ed] [did] not
support an award of $300,000.” Id. at 489.

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Harris’s case is more like Salinas and Giles than Vadie and Patterson.
Harris testified at length about the emotional distress she suffered from
Lamb’s conduct and her termination. Specifically, Harris stated she suffered
from stress and anxiety, which resulted in dry heaving; she took medication
and sought professional help; she had trouble sleeping; she gained weight;
and she generally lost her enjoyment of life. Harris’s pastor, her cousin, and
a long-time friend also testified on her behalf. Her pastor testified that after
her termination “it was like the bottom fell out . . . . She was so emotionally
destroyed.” He was “worried about her mental state because . . . [he] was
just worried about if she was going to do something crazy.” Harris’s cousin
testified that after her termination, she noticed Harris “was having to go to
the doctor more for stomach issues” and that “she was gaining weight.” And
Harris’s friend testified that after her termination, Harris “had a sadness
about herself,” and “[s]he wasn’t . . . the optimistic . . . hopeful friend that
she was used to.”
That evidence is more than the cursory, uncorroborated testimony in
Vadie and Patterson. Indeed, like the plaintiffs in Salinas and Giles, Harris
sought medical treatment, testified to physical symptoms resulting from her
emotional distress, and had other witnesses corroborate her testimony.
Hence, Harris is entitled to more than nominal damages. However, Harris’s
symptoms do not warrant a $300,000 compensatory damage award. See
Giles, 245 F.3d at 489. Instead, a comparison of her case with this court’s
precedent suggests a base sum of $100,000 is more appropriate. See Salinas,
286 F.3d at 833; Giles, 245 F.3d at 489; see also Williams, 218 F.3d at 486
(upholding $100,000 award in sex discrimination case based on plaintiff’s
testimony that her discharge resulted in “sleep loss, beginning smoking[,]
and severe weight loss”); Forsyth, 91 F.3d at 776 (upholding $100,000 award
for emotional damages in § 1983 case based on plaintiff’s testimony that “she

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suffered depression, weight loss, intestinal troubles, and marital
problems, . . . and that she had to consult a psychologist”).
In view of that, we remit Harris’s damages using the maximum
recovery rule. See Longoria, 932 F.3d at 368. “The rule allows some leeway,
so it permits a verdict at 150% of the highest inflation-adjusted recovery in an
analogous, published decision.” Id. at 365; see Salinas, 286 F.3d at 831. 13 We
employ Salinas as an analogue and start with a base sum of $100,000. Salinas
was published in April 2002. Adjusted for inflation, a $100,000 award back
then is equal to $165,746.38 in October 2022, when the jury returned its
verdict. 14 That amount properly compensates Harris for her damages shown
at trial. But “[t]o avoid substituting our judgment for that of the jury,” we
also multiply that number by 150%, see Giles, 245 F.3d at 489, entitling Harris
to $248,619.57 in compensatory damages.
D.
Next, we consider whether Harris presented sufficient evidence to
support an award of punitive damages. Again, we ask whether “a reasonable
jury would not have a legally sufficient evidentiary basis to find for the party
on that issue.” Nobach, 799 F.3d at 377–78 (quoting Fed. R. Civ. P.
50(a)(1)).
“A Title VII plaintiff may recover punitive damages upon proof that
the defendant acted ‘with malice or with reckless indifference to the federally

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13
We do not apply the multiplier when such a calculation was a part of the initial
award because doing so “could lead to explosive growth in damage awards.” Salinas, 286
F.3d at 831. In Salinas, as here, the multiplier was not part of the damages awarded at trial,
so the Salinas court multiplied the base $100,000 award by 150% and thereby set the
plaintiff’s compensatory damage award at $150,000.
14
We used the CPI Inflation Calculator from the Bureau of Labor Statistics,
available at https://data.bls.gov/cgi-bin/cpicalc.pl. See Longoria, 932 F.3d at 367 n.6.

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protected rights of an aggrieved individual.’” Wantou, 23 F.4th at 439
(quoting 42 U.S.C. § 1981a(b)(1)). “This is a higher standard than the
showing necessary for compensatory damages.” Id. “Thus, ‘not every
sufficient proof of pretext and discrimination is sufficient proof of malice or
reckless indifference.’” Id. (quoting Hardin v. Caterpillar, Inc., 227 F.3d 268,
270 (5th Cir. 2000)).
“Ultimately, the terms ‘malice’ and ‘reckless indifference’ ‘focus on
the actor’s state of mind.’” Id. (quoting Kolstad v. Am. Dental Ass’n, 527
U.S. 526, 535 (1999)). “Both ‘pertain to the employer’s knowledge that it
may be acting in violation of federal law, not its awareness that it is engaging
in discrimination [or retaliatory conduct].’” Id. (alteration in original)
(quoting Kolstad, 527 U.S. at 535). Thus, the defendant employer “must at
least [have] [retaliated] in the face of a perceived risk that [her] actions
w[ould] violate federal law to be liable for punitive damages.” Id. at 440
(alterations in original) (quoting Boh Bros., 731 F.3d at 467). “Moreover,
even if particular agents acted with malice or reckless indifference, an
employer may avoid vicarious punitive damages liability if it can show that it
made good-faith efforts to comply with Title VII.” Boh Bros., 731 F.3d at 467.
“Given these stringent standards, a plaintiff faces . . . a ‘formidable burden’
in seeking punitive damages for employment discrimination.” Id. (quoting
Canny v. Dr. Pepper/Seven-Up Bottling Grp., Inc., 439 F.3d 894, 903 (8th Cir.
2006)).
Although we affirm the jury’s finding that Lamb engaged in
retaliation, Harris does not meet the higher burden to show that Lamb did so
“in the face of a perceived risk” that her actions would violate federal law.
See id. at 468. While Lamb testified that she told HR that she had “extreme
concern with [Harris’s] behavior” because Harris was “taking the approach
of arguing with [Lamb] about many things,” Lamb also testified that she
made those comments because she “believe[d] . . . those concerns need[ed]

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No. 23-20035

to be taken into consideration” because they showed a lack of accountability
and “wanting to argue” on Harris’s part. The evidence suggests that Lamb
believed Harris should be disciplined for “insubordination,” not in
retaliation for her complaints. And for punitive damages, it is the employer’s
subjective intent that matters. “Because the uncontroverted evidence shows
that [Lamb] did not subjectively perceive a risk of violation of federal law, we
conclude that [FedEx] was entitled to judgment as matter of law overturning
the jury’s punitive-damage award.” Id.
Even if Lamb had acted with malice and reckless indifference, FedEx
was still entitled to judgment as a matter of law because FedEx made good-
faith efforts to comply with Title VII. Each time Harris filed an internal
complaint, HR conducted an in-depth investigation: Clark interviewed
multiple witnesses, examined relevant evidence, and provided a detailed
analysis of Harris’s allegations. Moreover, FedEx policy did not allow Lamb
to discipline Harris while Clark’s investigations were ongoing. FedEx’s
actions in this case are unlike other cases where this court has found
companies vicariously liable for punitive damages because they ignored the
plaintiff’s complaints. See, e.g., Wantou, 23 F.4th at 440; Rhines v. Salinas
Const. Techs., Ltd., 574 F. App’x 362, 368 (5th Cir. 2014); Deffenbaugh-
Williams v. Wal-Mart Stores, Inc., 188 F.3d 278, 286 (5th Cir. 1999).
Accordingly, FedEx was also entitled to judgment as a matter of law as to
punitive damages based on its good-faith efforts to comply with Title VII.
Because Harris failed to meet the heavy burden required for punitive
damages in Title VII cases, we reverse the district court’s denial of judgment
as a matter of law on this issue and vacate the punitive-damages award. 15

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15
Because we find Harris is not entitled to punitive damages as a matter of law, we
need not determine the constitutionality of the jury’s punitive damages award.

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E.
Finally, FedEx contends it is entitled to a new trial based on Harris’s
expert Sherrod’s testimony. “We review a district court’s evidentiary
rulings and denial of a motion for a new trial [for abuse of discretion].”
Fornesa v. Fifth Third Mortg. Co., 897 F.3d 624, 627 (5th Cir. 2018). “[T]o
vacate a judgment based on an error in an evidentiary ruling, ‘this court must
find that the substantial rights of the parties were affected.’” Wantou, 23
F.4th at 432 (alteration in original) (quoting Seatrax, Inc. v. Sonbeck Int’l, Inc.,
200 F.4th 358, 370 (5th Cir. 2000)). This “requires that the error be
prejudicial; it must affect the outcome of the proceeding.” Crawford v.
Falcon Drilling Co., 131 F.3d 1120, 1125–26 (5th Cir. 1997) (quoting United
States v. Calverley, 37 F.3d 160, 164 (5th Cir. 1994)). “If the court is sure,
after reviewing the entire record, that the error did not influence the jury or
had but a very slight effect on its verdict,” then a party’s substantial rights
have not been affected. Kelly v. Boeing Petroleum Servs., Inc., 61 F.3d 350, 361
(5th Cir. 1995) (internal quotations and citations omitted).
“Under Federal Rule of Evidence 702, district courts are assigned a
gatekeeping role to determine the admissibility of expert testimony.” United
States v. Valencia, 600 F.3d 389, 423–24 (5th Cir. 2010). “The court must
find that the evidence is both relevant and reliable before it may be
admitted.” Id. at 424. “This requires more than a glance at the expert’s
credentials; the court must also ensure that the expert has reliably applied the
methods in question.” Id. Mindful of these guideposts, we conclude that the
district court abused its discretion by allowing Sherrod to opine that FedEx
“didn’t follow normal protocol and procedure, and that discrimination and
retaliation did occur.”
FedEx filed a pre-trial motion to exclude Sherrod’s testimony in part
because she “d[id] not utilize a reliable methodology as required by

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No. 23-20035

Daubert.” FedEx asserted that Sherrod’s testimony was based solely on her
review of Harris’s complaint, such that she had not reviewed any of FedEx’s
policies or Harris’s employment contract. The district court denied FedEx’s
motion “[b]ased on Sherrod’s vast experience in the HR area, and the fact
that she has been permitted to testify in federal courts on several occasions.”
When FedEx renewed its objections at trial, the district court overruled
them, pointing to the reasoning in its prior order.
On cross-examination, Sherrod conceded that she did not have any
knowledge of FedEx’s HR policies and procedures and that her testimony
was based only on her review of Harris’s complaint. This is problematic
because an expert’s testimony must be “based on sufficient facts or data.”
Fed. R. Evid. 702(b). “Although . . . an expert can rely on information
provided by a party’s attorney, . . . an expert cannot forgo [her] own
independent analysis and rely exclusively on what an interested party tells
them.” Orthoflex, Inc. v. ThermoTek, Inc., 986 F. Supp. 2d 776, 798 (N.D.
Tex. 2013). By allowing Sherrod to testify without a proper foundation, the
district court abdicated its role as gatekeeper. Though we generally “afford
broad discretion to a district court’s evidentiary rulings,” Adams v. Mem’l
Hermann, 973 F.3d 343, 352 (5th Cir. 2020) (quoting Sprint/United Mgmt.
Co. v. Mendelsohn, 552 U.S. 379, 384 (2008)), Sherrod’s opinions about
FedEx’s “protocol and procedure”—and, indeed, her opinion “that
discrimination and retaliation did occur”—should not have been allowed
through the gate.
Nevertheless, FedEx fails to show that Sherrod’s testimony affected
its substantial rights. Even without Sherrod’s testimony, Harris presented
sufficient evidence for a reasonable jury to find that Lamb retaliated against
her. See supra Part II.B. Additionally, Sherrod was subject to FedEx’s
vigorous cross-examination, affording FedEx the chance to demonstrate the
deficiencies and inadequacies of her testimony, which the jury was then free

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to consider. And assuming arguendo that the jury relied on Sherrod’s
testimony in awarding punitive damages, that prejudice is cured by our
overturning the jury’s punitive award. FedEx has not otherwise shown that
the district court’s admission of Sherrod’s testimony “influence[d] the jury
or had [more than] a very slight effect on its verdict,” Kelly, 61 F.3d at 361,
such that a new trial would be warranted.
III.
For the foregoing reasons, we reverse the district court’s denial of
FedEx’s motion for judgment as a matter of law as to Harris’s § 1981 and
punitive damages claims, render judgment in favor of FedEx on those claims,
and vacate the jury’s award of punitive damages. We affirm the jury’s verdict
in favor of Harris as to her Title VII retaliation claim, but we remit Harris’s
compensatory damages to $248,619.57. Finally, we affirm the district court’s
denial of FedEx’s motion for a new trial.
AFFIRMED in part; REVERSED and RENDERED in part.

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