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Thomas v. Texas Department of Criminal Justice

Court: Court of Appeals for the Fifth Circuit
Date filed: 2002-07-01
Citations: 297 F.3d 361
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            IN THE UNITED STATES COURT OF APPEALS

                             FOR THE FIFTH CIRCUIT
                                        _______________

                                          m 01-20247
                                        _______________



                                       BEVERLY THOMAS,

                                                            Plaintiff-Appellee,

                                             VERSUS

                        TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

                                                            Defendant-Appellant.


                                  _________________________

                           Appeal from the United States District Court
                               for the Southern District of Texas
                                _________________________
                                          July 1, 2002



Before REAVLEY, SMITH, and DENNIS,                  grant Thomas housing because of her sex and
  Circuit Judges.                                   race and refusing to promote her in retaliation
                                                    for her EEOC complaints. We affirmed the
JERRY E. SMITH, Circuit Judge:                      jury’s decision on the promotion claim but
                                                    held that Thomas had not properly preserved
   Beverly Thomas sued the Texas Depart-            her allegations of race discrimination on the
ment of Criminal Justice (“TDCJ”), claiming it      housing claim. Thomas v. TDCJ (“Thom-
had denied her a pro motion and housing be-         as I”), 220 F.3d 389 (5th Cir. 2000). The ver-
cause of her sex, race, and complaints to the       dict did not distinguish between sex and race
Equal Opportunity Employment Commission             discrimination on the housing claim. The jury
(“EEOC”). In the first trial, the jury found        also had awarded damages as a lump sum.
that TDCJ had violated title VII by refusing to     Those features of the verdict compelled a new
trial on the housing claim and damages. The            promotion to captain. In December 1996 and
second jury found for TDCJ on the housing              January 1997, TDCJ denied her the promo-
claim and awarded $30,000 for past emotional           tion; three white males filled the available
distress and $100,000 for future emotional dis-        captain positions. In April 1997, Thomas
tress based on the promotion claim.                    filed another EEOC charge complaining that
                                                       TDCJ had denied her the promotion because
    In this appeal, we find no error in the jury       of discrimination on the basis of race, sex, and
instructions. We do, however, conclude that            retaliation.
the award for future emotional distress was ex-
cessive and that the district court erred when                                II.
calculating prejudgment interest. We direct a              In February 1997, Thomas sued TDCJ, al-
remittitur or new trial on those damages, and          leging discrimination in the denial of housing
we remand for the district court to reconsider         and of the promotion. The district court per-
its award of attorneys’ fees.                          mitted her to amend the complaint to add alle-
                                                       gations of racial discrimination to her charge
                        I.                             of sex discrimination regarding the housing de-
   In 1979, Thomas began working for TDCJ              nial. In February 1998, TDCJ placed Thomas
at its Gainesville Unit. In 1985, TDCJ pro-            in a house at the Estelle Unit.
moted her to sergeant. In 1992, she trans-
ferred to the Estelle Unit. In July 1995, TDCJ            The jury found that TDCJ had unlawfully
promoted her to lieutenant and assigned her to         denied Thomas housing because of her sex and
work with high security prisoners. After her           race and had retaliated against her by failing to
promotion, Thomas requested housing, be-               promote her to captain. The jury awarded
cause the TDCJ benefits policy permits lieu-           $107,000 in compensatory damages. The
tenants to live rent free in state-owned hous-         district court entered judgment awarding
ing.                                                   compensatory damages, back pay, and attor-
                                                       neys’ fees. The court also issued entered an
    Thomas requested a hearing from Warden             injunction that forbade TDCJ from further dis-
Fred Becker to discuss housing. Becker said            crimination against Thomas, ordered TDCJ to
that he would like to give her a house, but all        transfer her from the Estelle Unit, and ordered
of the houses were being renovated. Thomas             appropriate housing on reassignment. Finally,
wrote a letter asking to be placed on a waiting        the court prohibited TDCJ from implementing
list. In February 1996, Fred Figueroa became           housing policies that were contrary to anti-
Warden of the Estelle Unit. Thomas met with            retaliation provisions of state and federal law
Figueroa and requested housing. Figueroa in-           or insensitive to sex discrimination.
formed her that because she was single and
had no children, her chances of receiving hous-            TDCJ appealed. In Thomas I, 220 F.3d at
ing were slim to none. In June 1996, Thomas            392-94, we affirmed the denial of TDCJ’s
filed a complaint with the EEOC alleging that          motion for judgment as a matter of law
TDCJ had denied her housing on the basis of            (“j.m.l.”) or a new trial on the promotion
sex.                                                   claim. We also ruled, however, that the dis-
                                                       trict court had abused its discretion by permit-
   In November 1996, Thomas applied for                ting Thomas to amend her pretrial order to add


                                                   2
a race discrimination claim to her original sex                              III.
discrimination claim for the housing delay. Id.           TDCJ argues that the jury instruction im-
at 395. Further, the jury instructions on race         permissibly led the jury to award damages for
discrimination for the housing claim consti-           the failure to promote and retaliation as inde-
tuted an abuse of discretion, because the jury         pendent events. TDCJ argues that Thomas I
should not have been able to consider race             compelled the court to inform the jury that
discrimination. Id.                                    TDCJ had retaliated only by failing to promote
                                                       Thomas to captain. TDCJ misinterprets
    We reversed the district court only for per-       Thomas I, in which we decided that TDCJ had
mitting the pretrial amendment and improperly          retaliated both by failing to promote and by
formulating jury instructions on the housing           refusing to transfer Thomas. The jury
claim. Id. at 396. This also required a new            instructions were proper.
trial on compensatory damages, because the
jury had not divided the damage award be-                                      A.
tween the housing and promotion claims. On                 We review an error in jury instructions for
remand, the court had to consider the merits of        abuse of discretion. A challenge to jury
the housing claim and the damages owed un-             instructions “must demonstrate that the charge
der all the claims. Id.                                as a whole creates substantial and ineradicable
                                                       doubt whether the jury has been properly guid-
   At the beginning of the second trial, the           ed in its deliberations.” Deines v. Tex. Dep’t
court announced that “the jury instructions are        of Protective & Regulatory Servs., 164 F.3d
simply going to be finding as to housing and           277, 279 (5th Cir. 1999) (quoting Mooney v.
finding as to damages and finding as to other          Aramco Servs. Co., 54 F.3d 1207, 1216 (5th
damages.” The court instructed that a previ-           Cir. 1995)). A single inaccurate, ambiguous,
ous jury had found that TDCJ had failed to             or incomplete clause does not dictate reversal
promote Thomas and had retaliated against              if the instructions as a whole properly express
her.                                                   the law. Vicksburg Furniture Mfg., Ltd. v.
                                                       Aetna Cas. & Surety Co., 625 F.2d 1167,
   The second jury found that TDCJ had not             1169 (5th Cir. Unit A 1980). Even if the
refused Thomas housing because of her sex.             challenger proves the instructions misguided
The jury then considered damages for                   the jury, we reverse only if the erroneous
“TDCJ’s failure to promote Ms. Thomas to               instruction affected the outcome of the case.
captain, and retaliation against her.” Thomas          Deines, 164 F.3d at 279.
received $30,000 for past emotional damage
and $100,000 for future emotional distress.                                 B.
                                                          The court repeatedly instructed the second
    The court entered judgment ordering the            jury to award compensatory damages for fail-
TDCJ to promote Thomas before January 31,              ure to promote and ret aliation.1 TDCJ cor
2001, and to pay compensatory damages of
$130,000, back pay, pre- and postjudgment
interest, attorneys’ fees, and costs. The TDCJ            1
                                                              The court instructed,
filed a renewed motion for j.m.l. and new trial,
which were denied.                                        Second, what damages, if any flow from the
                                                                                          (continued...)

                                                   3
rectly argues that a jury can award                         Thomas I also identified more than one
compensatory damages only for adverse                    retaliatory adverse employment action. The
employment actions. Mattern v. Eastern                   panel repeatedly used the conjunction “and” to
Kodak Co., 104 F.3d 702, 708-09 (5th Cir.                describe TDCJ’s separate actions in failing to
1997). TDCJ also correctly states that if                promote and retaliating against Thomas.2 We
TDCJ only failed to promote Thomas, then                 identified two, separate adverse employment
Thomas should not also recover for retaliatory           actionsSSthe “failure to promote Thomas” and
acts that did not rise to the level of adverse           the “refusal to transfer her to other positions.”3
employment actions. Thompkins v. Cyr, 202
F.3d 770, 785-86 (5th Cir. 2000).                            After TDCJ denied Thomas the promotion
                                                         to captain, she repeatedly applied for transfers
    TDCJ, however, reads Thomas I                        outside the Estelle unit, where her race, sex,
incorrectly. In Thomas I, 220 F.3d at 394 &              and history of complaints would not be an is-
n.2, we addressed which actions constituted              sue. Thomas applied for a program ad-
adverse employment actions severe enough to              ministrator post and an administrative tech-
support a retaliation claim. We distinguished            nician position. The TDCJ denied all of these
between the evidence of TDCJ’s retaliatory               transfer applications, and, in Thomas I, the
motive and the employer’s acts of retaliation.           panel interpreted the verdict as finding that the
Id. Giving Thomas a house in deplorable con-             “refusal to transfer” was retaliatory. Given
dition, twice disciplining her on flimsy charges,        our holding in Thomas I, the district court cor-
and shouting at her for filing grievances                rectly instructed the jury to consider both the
provided evidence of TDCJ’s motive. Id.                  failure to promote and TDCJ’s other
                                                         retaliatory action.

                                                                               C.
   1
    (...continued)                                          The district court also refused to give any
         conduct of the TDCJ for its conduct in
         failing to promote Ms. Thomas in 1996
         based on her sex or race and retaliating           2
                                                              Thomas I, 220 F.3d at 395 n.3 (“The jury was
         against her.                                    asked separate interrogatories on the housing,
                                                         failure to promote, and retaliation claims. Thus the
   ...                                                   error on the submission of race as a part of the
                                                         housing claim does not effect [sic] the failure to
   Because another jury has found that the               promote and retaliation claims.”); id. at 396 (“We
   TDCJ failed to promote Ms. Thomas to                  hold that the plaintiff, Beverly Thomas, presented
   Captain and retaliated against her, you must          sufficient evidence to allow a reasonable jury to
   determine the amount of damages, if any, to           conclude that TDCJ engaged in racial and gender
   which she is entitled.                                discrimination in its failure to promote Thomas to
                                                         Captain, and that TDCJ also engaged in
Moreover, in one of its interrogatories, the court       retaliation.”).
asked the jury to consider the amount of damages
                                                            3
appropriate for “the TDCJ’s failure to promote               Id. at 394 n.2. See id. at 394 (“Thus Thomas
Ms. Thomas to Captain, and retaliation against           presented evidence for a reasonable juror to con-
her, and TDCJ’s denial of housing to Ms. Thom-           clude that TDCJ failed to promote or transfer her
as.”                                                     because she engaged in protected activity”).

                                                     4
instruction concerning front pay. This made                $30,000 award for past emotional distress fits
sense, because the court did not permit the                within the range of damages that we have es-
jury to consider the issue of front pay. The               tablished, and TDCJ does not appeal that
only instruction the court gave on pay was that            award. Thomas, however, failed to prove that
the court, not the jury, would decide back pay.            the TDCJ’s unlawful actions caused $100,000
                                                           in future emotional distress damages. We re-
   TDCJ maintains that the court should have               verse, because our precedent does not support
given a companion instruction expressly ex-                a $100,000 award based on such insubstantial
cluding front pay. TDCJ argues that the jury               injuries. On remand, Thomas may choose be-
inevitably inferred that it should include front           tween accepting a remittitur to $75,000 of fu-
pay in compensatory damages, despite the ab-               ture emotional distress damages or a new trial.
sence of any instruction.
                                                                                  A.
   The district court does not have an                        The part ies disagree over whether our re-
obligation to refute every possible,                       view of the denial of j.m.l. should be de novo
impermissible inference from the jury                      or for plain error. TDCJ’s motion for j.m.l. at
instructions. TDCJ does not cite a single case             the close of all evidence did not include an at-
holding that an instruction on back pay                    tack on the evidence’s sufficiency to prove
requires an instruction on front pay. Reversing            emotional damages. TDCJ did include such an
on this basis would make it impossible for the             argument in its FED. R. CIV. P. 50(b) post-
court to instruct a jury: The court would have             judgment motion, however, and Thomas did
to preempt every possible impermissible                    not argue waiver.
inference.
                                                              A party who does not raise the waiver bar
   Instead, we review judgments to ensure                  when opposing a rule 50(b) motion may not
that jurors receive proper instructions on the             raise that bar on appeal.5 TDCJ’s motion for
acceptable methods and bases of recovery.                  j.m.l. is properly asserted on appeal, and we
The district court gave proper instructions on             apply the de novo standard. Deffenbaugh-
the bases for compensatory damages.4                       Williams, 188 F.3d at 285.

                      IV.                                    When reviewing the denial of j.m.l., we
    TDCJ requests that we reverse the denial of            must review the sufficiency of the evidence
its motions for j.m.l. and new trial on future
emotional distress damages. The jury’s                        5
                                                                 Deffenbaugh-Williams v. Wal-Mart Stores,
                                                           Inc., 188 F.3d 278, 284 n.5 (5th Cir. 1999) (“Rule
                                                           50(b) motions may not, of course, raise issues not
   4
     TDCJ argues briefly that the district court           raised under Rule 50(a); but new grounds may be
erred by instructing the jury that it could consider       considered where, as here, the non-movant does not
future emotional distress. As discussed infra, we          object.”) (citations omitted); Thompson & Wallace,
believe the court instructed the jury properly, be-        Inc. v. Falconwood Corp., 100 F.3d 429, 435 (5th
cause it could reasonably award some damages for           Cir. 1996) (“Because the plaintiffs did not raise the
future emotional harm. We merely believe that the          waiver bar in opposing the rule 50(b) motion, they
amount of those damages was excessive and                  may not raise that bar on appeal.”) (citations
unsupported by the evidence.                               omitted).

                                                       5
and consider whether reasonable and fair-                   the denial of remittitur for abuse of discretion.
minded people could reach the same                          Eiland v. Westinghouse Elec. Corp., 58 F.3d
conclusion. Polanco v. City of Austin, Tex.,                176, 183 (5th Cir. 1995). We order a remitti-
78 F.3d 968, 974 (5th Cir. 1996). We “should                tur only when “left with the perception that the
review all of the evidence in the record . . .              verdict is clearly excessive.” Id.
[but] must draw all reasonable inferences in
favor of the nonmoving party, and [ ] may not                                    B.
make credibility determinations or weigh                       TDCJ’s request for j.m.l. or a new trial
evidence.” Reeves v. Sanderson Plumbing                     boils down to challenging the sufficiency of
Prod., Inc., 530 U.S. 133, 150 (2000)                       Thomas’s evidence. A plaintiff must present
(citations omitted).            “Credibili ty               evidence of an emotional injury’s character
determinations, the weighing of the evidence,               and severity to recover greater than nominal
and the drawing of the legitimate inferences                damages.7 TDCJ argues that Thomas did not
from the facts are jury functions, not those of             present evidence sufficient to support the
a judge.” Id. at 150-51 (quotation and                      $100,000 award for future emotional harm.
citations omitted).
                                                               We have shown great deference to jury
    We apply a more stringent standardSSabuse               damage awards ratified by the district court.
of discretionSSwhen determining whether to                  Calderera v. E. Airlines, Inc., 705 F.2d 778,
grant a new trial. Whitehead v. Food Max,                   784 (5th Cir. 1983). Courts have focused on
Inc., 163 F.3d 265, 269, 270 n.2 (5th Cir.                  two necessary elements for the plaintiff to re-
1998); Baker v. Dillon, 389 F.2d 57, 58 (5th                cover emotional distress damages. Giles, 245
Cir. 1968). “A trial court should not grant a               F.3d at 488. First, the plaintiff must provide
new trial on evidentiary grounds unless the
verdict is against the great weight of the evi-
dence.” Pryor v. Trane Co., 138 F.3d 1024,                     6
                                                                (...continued)
1026 (5th Cir. 1998) (citation and quotation                (5th Cir. 2000) (“Although we note that MSU did
omitted). We must affirm denial of a new trial              not ask for remittitur when it sought judgment as a
unless the movant makes a “clear showing” of                matter of law or, in the alternative, a new trial after
an “‘absolute absence of evidence to support                the jury rendered its verdict, it would have been
the jury’s verdict,’ thus indicating that the dis-          within the district court’s discretion to sua sponte
trict court abused its discretion in refusing to            suggest remittitur. This Court has the same
find the jury’s verdict ‘contrary to the great              power.”), cert. denied, 531 U.S. 1113, 531 U.S.
weight of the evidence.’” Whitehead, 163                    1150 (2001); McDonald v. Bennett, 674 F.2d
F.3d at 269 (citations omitted).                            1080, 1092 (5th Cir.) (explaining that appellate
                                                            and district courts have power to order remittitur),
   TDCJ did not request a remittitur in either              modified on reh’g, 679 F.2d 415 (5th Cir. 1982).
the district court or its brief on appeal. We do,              7
                                                                  Carey v. Piphus, 435 U.S. 247, 264 n.20
however, have the discretion to convert a mo-               (1978) (stating that “an award of damages must be
tion for new trial into a remittitur.6 We review            supported by competent evidence”); Giles v. Gen.
                                                            Elec. Co., 245 F.3d 474, 488 (5th Cir. 2001)
                                                            (same); Brady v. Fort Bend County, 145 F.3d 691,
   6
       Vadie v. Miss. State Univ., 218 F.3d 365, 378        719 (5th Cir. 1998) (noting the importance of de-
                                       (continued...)       tailed, nonconclusional statements).

                                                        6
specific evidence of the nature and extent of
the harm. Id. Second, he must make more                       We have approved six-figure emotional dis-
than vague allegations to support his claim.              tress awards in five employment discrimination
Id. We prefer corroboration and expert                    and § 1983 cases. In Forsyth v. City of
testimony. Id.                                            Dallas, Tex., 91 F.3d 769, 775 (5th Cir.
                                                          1996), we upheld an award of $100,000 to an
   With those two criteria in mind, we review             officer transferred in violation of her First
the awards for emotional distress in similar              Amendment rights. We premised the award
cases. Dixon v. Int’l Harvester Co., 754 F.2d             on the plaintiff’s testimony describing
573, 589 (5th Cir. 1989). We limit our                    “depression, weight loss, intestinal troubles,
comparison to cases in the “relevant                      and marital problems.” Id. The plaintiff also
jurisdiction,” which is the Fifth Circuit.                testified that she had consulted a psychologist.
Douglass v. Delta Airlines, Inc., 897 F.2d                Id.
1336, 1339 (5th Cir. 1990).
                                                             In Rizzo v. Children’s World Learning
   Out of deference to the jury’s decision, the           Ctrs., Inc., 173 F.3d 254, 262 (5th Cir.),
“maximum recovery rule” compels us to remit               vacated, 187 F.3d 680 (5th Cir.), aff’d on
damages only to the maximum amount the jury               other grounds, 213 F.3d 209 (5th Cir. 1999)
could have awarded. Giles, 245 F.3d at 488-               (en banc), cert. denied, 531 U.S. 958 (2000),
89. As an extension of the “maximum re-                   we approved a $100,000 award under the
covery rule,” we usually apply a multiplier, or           Americans with Disabilities Act for past and
percentage enhancement, to past similar                   future mental anguish. The award was 550
awards. If the verdict falls within the range es-         times the size of the lost wages award, but the
tablished by previous awards and the                      panel did not discuss the specifics of Rizzo’s
enhancement, we will uphold the decision.8                emotional damages. Id.

                                                             In Williams v. Trader Publ’g Co., 218 F.3d
   8
      Giles, 245 F.3d at 489 (50% multiplier);            481, 486 (5th Cir. 2000), we upheld a
Dixon, 754 F.2d at 590 (same); Calderera, 705             compensatory damage award of $100,000 for
F.2d at 784 (same). But see Lebron v. United              emotional distress based on the plaintiff’s
States, 279 F.3d 321 (5th Cir. 2002) (applying            descriptions of “severe emotional distress,”
33% enhancement); Marcel v. Placid Oil, 11 F.3d           “sleep loss,” “severe loss of weight,” and
563 (5th Cir. 1994) (same); Douglass, 897 F.2d            “beginning smoking.” We affirmed the award
1336 (same); Haley v. Pan Am. World Airways,              and noted that the testimony of the plaintiff
Inc., 746 F.2d 311 (5th Cir. 1984) (same).                alone can support emotional damages. Id.
Although all of the cases using a 50% enhancement
involved jury trials, those applying a 33%
multiplier are split. Lebron and Douglass were
                                                             8
bench trials, while Marcel and Haley were jury                (...continued)
trials.                                                   2002). The apparent origins of the two multipliers
                                                          are Calderera and Haley. Calderera predates Ha-
   Faced with this impasse between competing              ley and thus controls under our circuit’s rule of
multipliers, we recently chose the 50% figure.            orderliness. Teague v. City of Flower Mound,
Salinas v. O’Neill, 286 F.3d 827, 831 n.6 (5th Cir.       Tex., 179 F.3d 377, 383 (5th Cir. 1999).
                                    (continued...)

                                                      7
    In Giles, 245 F.3d at 488-89, we remitted
an emotional damage award to $100,000                          In three employment discrimination cases,
where a coworker testified as to the plaintiff’s            we have remitted emotional distress awards to
sleeping trouble, headaches, marital                        less than six figures. In Flowers v. S. Reg’l
difficulties, and loss of prestige and social               Physician Servs., Inc., 247 F.3d 229, 236-37
connec tions.9 The coworker testified that the              (5th Cir. 2001), we vacated a $100,000 award
plaintiff “appeared despondent, depressed,                  for the emotional impact of disability-based
down, and absolutely utterly discouraged                    harassment. We emphasized that the plaintiff’s
about not being able to go back to work.” Id.               testimony was uncorroborated, and every
at 488. Finally, in Salinas, 286 F.3d at 832,               physical and psychological complaint occurred
we remitted a jury award from $300,000 to                   after the discharge. Id. at 239 & n.8. In
$100,000, where a customs service agent won                 Vadie, 218 F.3d at 375-76, we remitted a title
a title VII claim for retaliation.10 The plaintiff          VII award of $300,000 to $10,000. We
and his wife had testified that the retaliation             emphasized that the plaintiffs uncorroborated
caused him to suffer from paranoia, take                    testimony that he was “destroyed,” “totally ru-
excessive sick leave, and visit physicians more             ined,” “totally ill,” and “took many doctors,
than seventy times. Id. at 832. The emotional               many pills” was insufficient to support the
toll had a significant impact on his relationship           verdict. In Patterson v. P.H.P. Healthcare
with his wife and son. Id.11                                Corp., 90 F.3d 927, 940 (5th Cir. 1996), we
                                                            remitted $40,000 and $150,000 awards to
                                                            nominal damages where a hospital had
   9
     The panel increased the award by 50%                   discriminated against a nurse and medical
multiplier, yielding a final award of $150,000.             technician. One plaintiff’s uncorroborated
Giles, 245 F.3d at 489.                                     testimony described feelings of frustration, low
   10                                                       self-esteem, anger, and paranoia, id. at 939;
      The jury originally awarded $1,000,000, but
the district court correctly remitted the amount to         the other testified that her discharge
$300,000 to conform with title VII’s statutory              emotionally scarred her and resulted in
damage caps. Salinas, 286 F.3d at 829.                      unemployment, id. at 940.

   11
      In Green v. Administrators of Tulane Educ.                                  C.
Fund, 284 F.3d 642, 660-61 (5th Cir. 2002), we                 Thomas testified to severe past emotional
affirmed a $300,000 title VII award for unspecified         distress. She wept while describing the
compensatory damages. The decision may have                 emotional impact of the missed promotion.
implicitly affirmed a six-figure award for                  She said that “it hurt, it hurt,” because “[i]t
emotional distress damages, but the defendants did
not challenge, and we did not consider, the verdict
under our line of cases addressing emotional
                                                               11
distress damages.                                                 (...continued)
                                                            are not to be considered as having been so decided
    Where an opinion fails to address a question            as to constitute precedents); Nat’l Cable Television
squarely, we will not treat it as binding precedent.        Ass’n, Inc. v. Am. Cinema Editors, 937 F.2d 1572,
Webster v. Fall, 266 U.S. 507, 511 (1925) (“Ques-           1581 (Fed. Cir. 1991) (“When an issue is not
tions which merely lurk in the record, neither              argued or is ignored in a decision, such decision is
brought to the attention of the court nor ruled upon,       not precedent to be followed in a subsequent case
                                       (continued...)       in which the issue arises.”).

                                                        8
took everything I had just to sit there and                as what Thomas suffered during the retaliatory
watch somebody take a job that I had worked                period. She described continued anger and
for all my life.” After the promotion denial               fears that the lawsuit will bar her from future
and throughout the retaliatory period, Thomas              promotion. She continues to suffer from a
was tearful, felt like a failure, felt isolated from       heart condition, everyday fatigue, and stress.
her coworkers, and felt helpless to alter her              Elroy Thomas testified that Thomas remains
circumstances. She explained that she could                “shook up, worried, depressed, [and] scared”;
not sleep and suffered from nausea. Her                    his testimony, however, plainly describes her
depression deepened, and she began dwelling                emotional distress as less severe than what she
on death. Her treating physician prescribed an             experienced while employed at the Estelle
antidepressant.                                            Unit. Hamblen noted that the housing dispute
                                                           and promotion denials had changed Thomas’s
   Other witnesses corroborated the severity               mood, but she admitted that she did not see
of Thomas’s past emotional distress. Elroy                 Thomas much anymore. Her testimony about
Thomas, her older brother, testified that                  Thomas’s contemporaneous emoti onal
Thomas became “moody,” “depressed,”                        reactions cannot provide much of a basis for
“standoffish,” and isolated during her                     estimating future emotional harm.
employment at the Estelle Unit. Kerney
Hamblen, a co-worker and friend, averred that                 Finally, Palmer stated that Thomas still suf-
Thomas went from being “extremely outgoing                 fers from mood “swings” when “she is very
and full of life” to “depressed or in a bad                melancholy” and “just really not her[self]”;
mood” “at times.” JoAnn Palmer, Thomas’s                   Palmer described these moods as off and on;
older sister, explained that Thomas became                 she also admits that Thomas’s
withdrawn, prone to breaking out in tears, and             contemporaneous emotional distress was much
depressed. The jury concluded that this                    more severe. Thomas presented enough evi-
evidence of past emotional harm warranted                  dence to justify instructing the jury on future
$30,000 in damages.                                        emotional harm, and her evidence supported
                                                           an award. The question whether that evidence
   By the time of the second trial, however,               supported a $100,000 award is an entirely
TDCJ had transferred Thomas to another unit.               different matter, however.
She testified that she currently enjoys her job.
Although she has given up hope of future                       At a superficial level, past cases and the
promotions, she still derives great pleasure               maximum recovery rule might point toward af-
from helping others at work. She admitted                  firming the jury’s award. Overall, Thomas
that she has received favorable evaluations; she           presented convincing and substantial evidence
has been named employee of the month. She                  of emotional damages. Thomas presented sub-
has continued to pursue her degree at Sam                  stantial evidence of acute, past mental anguish,
Houston University, where she originally be-               and the jury chose to award her $30,000.
gan taking classes to further her career
ambitions.                                                    The jury, however, awarded over three
                                                           times that amount for future emotional harms,
   The evidence pointed to some ongoing and                despite substantially weaker evidence. First,
future emotional distress, but nothing as severe           the witnesses testified that Thomas’s


                                                       9
emotional difficulties have lessened                                            V.
substantially since her transfer. She enjoys her             TDCJ argues that the district court made
current job, and her current supervisors have             three errors when calculating prejudgment in-
commended her performance.              Second,           terest.     First, TDCJ claims the court
Thomas did not provide evidence tightly                   mistakenly computed prejudgment interest
linking the denial of a promotion and future              from January 1996 rather than from January
emotional harm. As one example, the                       1997. Second, TDCJ argues that courts
witnesses tended to discuss the collective                should never award prejudgment interest on
emotional impact of the promotion denials,                emotional damages. Third, TDCJ avers that
transfer refusals, and housing delay. The jury,           courts should not award prejudgment interest
however, determined that the TDCJ acted                   on future damages. We review prejudgment
lawfully when it delayed indefinitely Thomas’s            interest for an abuse of discretion. Sellers v.
housing.                                                  Delgado Community College, 839 F.2d 1132,
                                                          1140 (5th Cir. 1988). We reverse on the first
   The jury should not have included the im-              and third grounds only.
pact of the housing denial when considering
the emotional impact. The high damage award                                      A.
suggests that it ignored this distinction. As                District courts generally should calculate
another example, Thomas testified about a                 interest on back pay and past damages based
heart condition that bothers her to this day.             on the date of the adverse employment action.
But she never even stated that she believes that          Gloria v. Valley Grain Prods., Inc., 72 F.3d
TDCJ’s actions had lasting effects on her                 497, 499 (5th Cir. 1996) (describing general
cardiac health; she certainly does not present            rule but refusing to reverse for denying
any medical evidence connecting her past job-             prejudgment interest). The district court
related stress to her current physical condition.         awarded 6% prejudgment interest from
                                                          January 1996 forward. The TDCJ first denied
   On this evidence, a reasonable jury could              Thomas the promotion in December 1996, and
not have concluded that Thomas’s future emo-              TDCJ argues that she should have received
tional distress will be over three times worse            prejudgment interest only from January 1,
than the emotional harm she has already suf-              1997, when she would have received her first
fered. At most, the jury properly could have              pay check as captain. Thomas agrees that
awarded only $50,000.12 The maximum re-                   prejudgment interest should have run from
covery rule requires us to add 50%, so we re-             January 1, 1997. We reverse and remand for
mit future emotional distress to $75,000.                 the district court to recalculate prejudgment
Thomas may elect between accepting that                   interest from that date.
amount or another trial on damages.
                                                                                  B.
                                                             Prejudgment interest should apply to all
                                                          past injuries, including past emotional injuries.
   12
     We have remitted emotional distress damages          Courts should award prejudgment interest
to similar levels, even without the guidance of an
independent award for past mental anguish. Vadie,
218 F.3d at 378 (remitting award from $300,000
to $10,000).

                                                     10
whenever a certain sum is involved.13 Re-                     In Williamson v. Handy Button Mach. Co.,
fusing to award prejudgment interest ignores              817 F.2d 1290 (7th Cir. 1987), Judge Easter-
the time value of money and fails to make the             brook explained the critical role of
plaintiff whole. Batson, 782 F.2d at 1316.                discounting, present value, and interest in
                                                          determining damages accurately. Federal law
   TDCJ argues only that Thomas’s                         requires courts to add prejudgment interest to
underlying claims for emotional damage lack               backpay awards under 42 U.S.C. § 1981. Id.
merit. This is puzzling, because TDCJ                     at 1297. Judge Easterbrook explained,
conceded that the jury properly awarded                   however, that “interest is not available on lost
Thomas $30,000 for past emotional harms.                  future wages and pensions,” because “the time
This judicial admission estops TDCJ from now              value of money is already taken into account
denying the validity of this award for purposes           when these are discounted to present value.”
of calculating prejudgment interest. TDCJ                 Id.
does not present a single argument for denying
interest accrued on a meritorious claim.                     Courts must award prejudgment interest
Because the jury found that the Thomas                    only for past harms. Today we apply that rule
suffered past emotional injuries, the district            to future emotional harms awarded under title
court was compelled to award prejudgment                  VII. The district court improperly awarded
interest on those past injuries.                          prejudgment interest on future harms. On re-
                                                          mand, the court should not add prejudgment
                       C.                                 interest to either the $75,000 in future
   We have, however, refused to award                     emotional harms or any damages for future
prejudgment interest on harms that have yet to            emotional harms awarded by a new jury.
occur. This makes good sense, because the
present value of the plaintiff’s future financial                                VI.
harm is less than either a present or past harm.
We have applied this rule consistently to
awards for front pay and future emotional                    14
                                                               (...continued)
harms in the context of federal admiralty and             F.3d 319, 328 (5th Cir. 1995) (reversing interest
maritime law.14                                           award on future pain and suffering under federal
                                                          maritime law because “[p]rejudgment interest [ ]
                                                          may not be awarded with respect to future
   13
       United States v. Batson, 782 F.2d 1307,            damages”) (citations omitted); Boyle v. Pool
1316 (5th Cir. 1986) (reversing district court for        Offshore Co., 893 F.2d 713, 719 (5th Cir. 1990)
failing to award prejudgment interest). See Pegues        (vacating district court order awarding
v. Miss. State Employment Serv., 899 F.2d 1449,           prejudgment interest for general pain and suffering
1458 (5th Cir. 1990) (affirming prejudgment inter-        because court should have distinguished between
est in title VII backpay award).                          past and future so that it could accurately allocate
                                                          interest); Verdin v. C&B Boat Co., 860 F.2d 150,
   14
      Jacobs v. N. King Shipping Co., Ltd., 180           158 (5th Cir. 1988) (“We have held on numerous
F.3d 713, 720 (5th Cir. 1999) (reversing district         occasions that awards of prejudgment interest on
court for awarding prejudgment interest on future         future damages are not available, for the common-
loss of support award under the Death on the High         sense reason that those damages compensate future
Seas Act); Couch v. Cro-Marine Transp., Inc., 44          harm, for which no interest could possibly have
                                    (continued...)        accrued before trial.”).

                                                     11
   Because we vacate the damages for
emotional distress, we also vacate and remand
the attorneys’ fees award; the plaintiff’s level
of success can critically influence the proper
amount of fees.15          The judgment is
AFFIRMED IN PART, REVERSED IN
PART, and REMANDED for further pro-
ceedings consistent with this opinion.




   15
      Giles, 245 F.3d at 491; Williams, 218 F.3d at
488 (vacating and remanding attorneys’ fees when
reversal of punitive damages reduced total
judgment by 40 percent); Bunch v. Bullard, 795
F.2d 384, 399-400 (5th Cir. 1986) (vacating and
remanding so district court could consider
increasing fees because court of appeals had
reinstated many claims that failed before the
district court).

                                                      12
    DENNIS, Circuit Judge, specially concurring.



       I disagree with the majority opinion insofar as it reviews the excessiveness of Ms. Thomas’s award

    by comparison to amounts awarded in prior cases. This practice is highly suspect and contrary to

    controlling law in this circuit. Although judgments in comparable cases may provide some frame of

    reference when reviewing awards for excessiveness, they do not control our assessment of an

    individual case. The proper focus of our inquiry is whether, based on the facts in the record, the

    award is entirely disproportionate to the injury sustained, not whether the award is greater or smaller

    than awards granted by previous juries. Because I agree, however, that $50,000 is the most that a

    jury could have properly awarded for future emotional distress damages in this case, I concur in the

    judgment.

                                                          I.

       When reviewing jury awards for excessiveness, we give great deference to the jury and trial judge.

    We review a denial of remittitur for abuse of discretion, and we order remittitur only when “the

    verdict is clearly excessive.”16 As Judge Rubin expressed in Caldarera v. Eastern Airlines, Inc., an

    award is “clearly excessive” only under extraordinary circumstances:

       We do not reverse a jury verdict for excessiveness except on “the strongest of showings.” The

       jury’s award is not to be disturbed unless it is entirely disproportionate to the injury sustained.

       We have expressed the extent of distortion that warrants intervention by requiring such awards

       to be so large as to “shock the judicial conscience,” “so gross or inordinately large as to be

       contrary to right reason,” so exaggerated as to indicate “bias, passion, prejudice, corruption,

       or other improper motive,” or as “clearly exceed[ing] that amount that any reasonable man

       16
1           Eiland v. Westinghouse Elec. Corp., 58 F.3d 176, 183 (5th Cir. 1995).
       could feel the claimant is entitled to.”17

    Thus, although this review is necessarily subjective,18 we do not order remittitur every time we

    perceive a jury award t o be overly generous; rather, remittitur is justified only when the award

    exceeds that bounds of reason under the facts of the case.19

       The focus of our clear excessiveness inquiry is on the facts of the case on appeal, no on the
                                                                                            t

    average recovery granted in like cases. A long line of precedent in this circuit establishes that “we

    do not determine excessiveness of damage awards by comparing verdicts in similar cases, but rather

    we review each case on its own facts.”20 As early as 1959, in Fruit Industries, Inc. v. Petty, we stated

    that “[c]omparison of verdicts rendered in different cases is not a satisfactory method for determining

    excessiveness vel non in a particular case and . . . each case must be determined on its own facts.”21

    Although we have acknowledged a limited role for comparing awards in similar cases to gauge the

    excessiveness of a given award, such comparisons serve only as a point of reference and are in no way




       17
1           705 F.2d 778, 784 (5th Cir. 1983).
       18
1           Caldarera v. E. Airlines, Inc., 705 F.2d 778, 784 (5th Cir. 1983) (internal citations omitted).
       19
1           Wakefield v. United States, 765 F.2d 55, 59 (5th Cir. 1985).
       20
1          Johnson v. Offshore Express, Inc., 845 F.2d 1347, 1356 (5th Cir. 1988); accord Hernandez v. M/V
2   Rajaan, 841 F.2d 582, 587 (5th Cir. 1988) (“An appellate court may not determine excessiveness by comparing
3   verdicts in similar cases, but rather must review each case on its own facts.”); Winbourne v. E. Airlines, Inc.,
4   785 F.2d 1016, 1035 (5th Cir. 1984) (“We cannot judge the justification of damages by mere comparison with
5   the awards upheld or reversed in other cases. Each case presents its own facts.”); Sosa v. M/V Lago Izabal,
6   736 F.2d 1028, 1035 (5th Cir. 1984) (“[W]e do not determine excessiveness by comparing verdicts rendered
7   in different cases; each case must be determined on its own facts.”); Allen v. Seacoast Prods., Inc., 623 F.2d
8   355, 365 (5th Cir. 1980) (quoting Fruit Indus., Inc. v. Petty, 268 F.2d 391, 395 (5th Cir. 1959)); Wiley v.
9   Stensaker Schiffahrtsges, 557 F.2d 1168, 1172 (5th Cir. 1977) (quoting Petty, 268 F.2d at 395).
       21
1           Petty, 268 F.2d at 395.

                                                            14
    controlling.22

       Despit e the well-established and limited role for case comparisons in this circuit, the majorit
                                                                                                      y

    opinion moves comparability to the forefront of our excessiveness inquiry. According to the majority,

    an award is upheld if it falls within the range of acceptable awards established by prior cases; only

    after this acceptable award-range is established does the majority consider the facts supporting Ms.

    Thomas’s award.

       The majority opinion is not the first case from this circuit to deviate from our comparability case

    law; at least one other case from this circuit has employed the same faulty analysis.23 This year, in

    Salinas v. O’Neill, a panel of this court stated that “[a] mainstay of the excessiveness determination

    is comparison to awards for similar injuries.”24 To support this statement, the Salinas court relied on

    Dixon v. International Harvester Co.,25 the same 1985 opinion that the majority uses to justify its

    comparability analysis in the present case. But Dixon plainly does not state that case comparisons

    are the “mainstay” of our excessiveness review; rather, it states that “prior awards may be of some

    aid when the present award is shown to be great ly disproportionate to past awards for similar




       22
1         Wheat v. United States, 860 F.2d 1256, 1259-60 (5th Cir. 1989) (“[D]amage awards in analagous [sic]
2   cases provide an objective frame of reference, but they do not control our assessment of individual
3   circumstances.”); Wakefield, 765 F.2d at 59-60 (“[W]hile comparison with other awards might serve as a point
4   of reference, such comparison is not controlling.”); see also In re Air Crash Disaster Near New Orleans, 767
5   F.2d 1151, 1160 (5th Cir. 1985) (Tate, J., dissenting) (“Essentially, it is only after an appellate court
6   determines that an award is excessive under federal standards of appellate review, that utilization of past
7   awards may become relevant in determining the amount to which a jury award should be reduced . . . .”).
       23
1           See Salinas v. O’Neill, 286 F.3d 827, 830 (5th Cir. 2002).
       24
1           Id.
       25
1           754 F.2d 573 (5th Cir. 1985).

                                                          15
    injuries.”26 For this more modest claim, Dixon relies on Haley v. Pan American World Airways, Inc.27



       Haley, which is a Louisiana diversity case, actually states that comparability provides little value

    in determining the excessiveness of a given award, and it applies a case comparison only because

    Louisiana had approved of the methodology to some extent:

       We recognize, as does the Louisiana Supreme Court, that an examination of such prior awards

       is of limited use in assessing the particular damages suffered by these particular claimants under

       these particular circumstances. However, as the Louisiana Court also appreciates, prior awards

       may be of some aid in determining excessiveness when “the present award is shown to be

       greatly disproportionate to past awards . . . for . . . ‘similar’ injuries.”28

    In other words, Haley engaged in a jury award comparison in accordance with Louisiana law, not

    federal law. The case in no way suggests that comparability is the “mainstay” of the clear

    excessiveness inquiry under federal law. Thus, through two i naccurate citations, the law of

    comparability in this circuit has been materially misstated.

       To the extent that the majority opinion and similar non-controlling Fifth Circuit cases conflict with

    our long-standing precedent on comparing jury awards, they are not binding precedent in this circuit.

    Under our prior precedent rule, “the holding of the first panel to address an issue is the law of this

    Circuit, thereby binding all subsequent panels unless and until the first panel’s holding is overruled




       26
1           Id. at 589 (emphasis added).
       27
1           746 F.2d 311 (5th Cir. 1984).
       28
1           Id. at 318 (quoting Reck v. Stevens, 373 So. 2d 498, 500-01 (La. 1979)) (internal citations omitted).

                                                           16
    by the Court sitting en banc or by the Supreme Court.”29 Thus, in accordance with this circuit’s prior

    holdings, a jury award is excessive only if it shocks the judicial conscience. Although case

    comparisons may serve a secondary role in providing a rough guide to our excessiveness inquiry, they

    are not controlling. The mere fact that an award is greater or less than awards in comparable cases

    does not justify ordering remittitur.

                                                           II.

       Sound policy arguments support this circuit’s limited reliance on past awards when determining

    excessiveness in subsequent cases. The assessment of damages for emotional distress is so fact-driven

    and so largely a matter of judgment that we are rightfully hesitant to substitute our views for those

    of the jury.30 Unlike the jury, we are limited to reviewing a “cold record.”31 The jury, who has the

    benefit of hearing live testimony and observing witness demeanor, is more qualified to determine the

    appropriate amount of emotional distress damages. To paraphrase Judge Rubin in Caldarera, the jury

    has seen the parties and heard the evidence; we have only read papers.32

       The limitations of our hindsight review are amplified when we attempt to examine awards granted

    in prior cases. When reviewing prior cases, we lack even the benefit of a “cold record.” Even our

    most thorough opinions provide only summaries of the evidence presented at trial. For instance, the


       29
1        United States v. Ocean Bulk Ships, Inc., 248 F.3d 331, 340 n.2 (5th Cir. 2001) (citing Smith v. GTE,
2   236 F.3d 1292, 1300 n.8 (5th Cir. 2001)).
       30
1         See, e.g., Caldarera v. E. Airlines, Inc., 705 F.2d 778, 783 (5th Cir. 1983); Shows v. Jamison Bedding,
2   Inc., 671 F.2d 927, 934 (5th Cir. 1982).
       31
1         See In re Clay, 35 F.3d 190, 194 (5th Cir. 1994) (“[A] cold record cannot capture the atmosphere, the
2   expressions, the attitudes that are the marrow of a jury trial.”); accord Caldarera, 705 F.2d at 782 (“Our review
3   is not only hindsight, but is based on a written record with no ability to assess the impact of the statement on
4   the jury or to sense the atmosphere of the courtroom.”).
       32
1           Caldarera, 705 F.2d at 782.

                                                           17
    majority compares the present case to Giles v. General Electric Co., an employment discrimination

    case involving the remittitur of an emotional distress award.33 The Giles opinion, however,

    summarizes the facts relevant to the emotional distress award in only two sentences:

       Giles testified that he has had trouble sleeping, suffered headaches and marital difficulties, and

       lost the prestige and social connections associated with his position at GE and his service as

       treasurer of the local union. Joyner testified that Giles appeared “despondent, depressed, down

       and absolutely utterly discouraged about not being able to come back to work.”34

    Without more insight into the nature and quality of this testimony, the Giles opinion provides little

    guidance in our determination of whether $100,000 was an excessive award under the facts of this

    case. Unless we aim to create an award schedule for intangible injuries like sleeplessness, marital

    difficulties, and loss of prestige, I see no way of determining whether a subsequent award is excessive

    based on the factual summary provided in Giles.35

       In addition to the problems associated with our lack of information about past jury awards, there

    is the separate concern of deciding which past awards we should consider. In order to establish the

    permissible range for Title VII emotion distress awards, the majority considers five employment

    discrimination cases in which we approved six-figure emotional distress awards. Three of those




       33
1           245 F.3d 474 (5th Cir. 2001).
       34
1           Id. at 488.
       35
1         As one observer has commented, “The doctrine of comparability is based on the erroneous assumption
2   that plaintiffs with the same or similar causes of action must have suffered similar injuries; therefore, the
3   amounts awarded to compensate those plaintiffs should be comparable.” J. Patrick Elsevier, Note, Out-of-
4   Line: Federal Courts Using Comparability to Review Damage Awards, 33 Ga. L. Rev. 243, 259 (1998)
5   (analyzing the variance of damage awards in the Seventh Circuit strip search cases).

                                                         18
    opinions, Forsyth,36 Rizzo,37 and Williams,38 are of little value to our excessiveness inquiry. None of

    those cases involves a remittitur or a damage award that was found to be excessive. As we have

    stated at least twice before, cases in which a jury verdict is upheld “shed no light on how high an

    award must be to be ‘excessive.’”39 In other words, our decision to affirm a jury award only indicates

    that the given award was not excessive; it says nothing about the maximum award that could have

    been awarded under those facts.

       Finally, even assuming that we analyze the appropriate cases, the information that those cases

    provide is of questionable value. First, the sample size of relevant cases is often too small to realize

    any sort average maximum award.40 Many of our cases employing case comparisons analyze fewer

    than three cases to determine whether a given award is clearly excessive.41 Second, there is no reason

    to assume that a value assigned to a particular injury by a prior jury is any more correct than the value

    assigned by a subsequent jury. Dignitary injuries like emotional distress are necessarily based on the

    decision-maker’s subjective impressions.42 It seems hopelessly arbitrary to gauge the excessiveness


       36
1           Forsyth v. City of Dallas, 91 F.3d 769 (1996).
       37
1           Rizzo v. Children’s World Learning Ctrs. Inc., 173 F.3d 254 (1999).
       38
1           Williams v. Trader Publ’g Co., 218 F.3d 481 (2000).
       39
1         Shows, 671 F.2d at 934 (“In most of these cases . . . the jury verdicts were upheld, and they thus shed
2   no light on how high an award must be to be ‘excessive.’”); accord In re Air Crash Disaster Near New Orleans,
3   767 F.2d at 1156 (“Of course, simply because certain awards have been affirmed does not indicate that these
4   are the highest, or even near the highest awards which might be allowed.”).
       40
1           See Elsevier, supra note 20, at 265-66.
       41
1         See, e.g., Salinas v. O’Neill, 286 F.3d 827, 831 (5th Cir. 2002) (comparing the award to two cases);
2   Giles v. Gen. Elec. Co., 245 F.3d 474, 489 (5th Cir. 2001) (comparing the award to one other case).
       42
1        Forsyth v. City of Dallas, 91 F.3d 769, 774 (1996) (“Judgments regarding noneconomic damages are
2   notoriously variable.”).

                                                             19
of all future emotional distress awards against a handful of prior awards that are not based on

objective criteria.

                                                  III.

   Despite my fundamental disagreement with the case-comparison methodology employed by the

majority, I concur in the result rendered. In the present case, the evidence cannot support an award

for $100,000 in future damages. As discussed in Section IV. C. of the majority opinion, Ms.

Thomas’s emotional distress evidence is predominantly attributable to her past emotional distress

award. The record indicates that Ms. Thomas now works at another unit and is no longer serving

under racially discriminating supervisors. Every witness testifying about her emotional state, including

Ms. Thomas herself, stated that her condition has improved since her transfer from the Estelle Unit.

The only evidence that Ms. Thomas will suffer future emotional distress was Thomas’s testimony that

she fears that she will never be promoted and her continued stress and fatigue. It seems patently

excessive to award Ms. Thomas over three times the amount of damages that the jury awarded her

for her past emotional distress (which was demonstrably more severe than her future emotional

distress). I agree with my colleagues that $75,000 is the most that the could have reasonably awarded

and is therefore the appropriate level of remittitur.




                                                  20