Villescas v. Abraham

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 27 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

CARLOS VILLESCAS,

Plaintiff - Appellee,
v. No. 01-1389
SPENCER ABRAHAM, Secretary of
the Department of Energy,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 97-B-1955)

Ara B. Gershengorn, Attorney, Appellate Staff Civil Division, Department of
Justice, Washington, D.C. (Robert D. McCallum, Jr., Assistant Attorney General;
Marleigh D. Dover and August E. Flentje, Attorneys, Appellate Staff Civil
Division, Department of Justice, Washington, D.C.; and John W. Suthers, United
States Attorney, District of Colorado, Denver, Colorado, with her on the briefs),
for Defendant - Appellant.

Darold W. Killmer (Mari Newman with him on the brief), Miller, Lane, Killmer &
Greisen, LLP, Denver, Colorado, for Plaintiff - Appellee.

Before BRISCOE, ANDERSON, and O’BRIEN, Circuit Judges.

ANDERSON, Circuit Judge.
 Appellant Spencer Abraham, Secretary of the Department of Energy,

appeals from a district court judgment awarding Carlos Villescas, a federal

employee, $50,000 in compensatory damages for emotional distress, and

$152,530.85 in attorney's fees and costs on a retaliation claim under the Age

Discrimination in Employment Act, 29 U.S.C. § 633a (ADEA).

The narrow dispositive question is whether 29 U.S.C. § 633a(c) waives the

sovereign immunity of the United States from an ADEA action seeking solely

compensatory damages for emotional distress arising from retaliation for

engaging in protected conduct. We hold that it does not. Accordingly, exercising

jurisdiction under 28 U.S.C. § 1291, we reverse the judgment of the district court

awarding damages, fees and costs against the appellant.

BACKGROUND

A.

As relevant to this appeal—and little of that remains from this

litigation—Carlos Villescas, an employee of the Department of Energy from 1979

to 1989, 1 was asked by a former co-worker to testify against the Agency in both

1
In 1989 Mr. Villescas became the Deputy District Director in the Denver
District of the United States Equal Employment Opportunity Commission.

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administrative and court proceedings brought by that employee under Title VII 2

and the ADEA. When Villescas agreed, he was subjected by the Deputy General

Counsel of the Western Area Power Authority (WAPA), a part of the Department

of Energy, to an exceptionally intrusive and visible investigation into his private

life and alleged wrongdoing on the job. After Villescas testified against the

government, the same Deputy General Counsel referred information gleaned from

her investigation to the Inspector General (IG) of the Department of Energy. The

referral was in the form of a complaint, replete with accusations and strong

suggestions for severe action against Villescas. The IG declined to act on this

complaint, stating, essentially, that the quality of the allegations was insignificant

and also citing statute of limitations grounds.

On April 6, 1998, Mr. Villescas filed his Amended Complaint in this

action, alleging that the Department of Energy and the Department of Justice

violated his rights under Title VII and his rights under § 633a of the ADEA, by

retaliating against him for his agreement to testify and his testimony in support of

another worker’s Title VII and ADEA claims. Appellant’s App. at 21-33. His

retaliation claims were identical: alleged wrongful investigation and wrongful

2
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16 (Title
VII).

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referral to the IG. Id. He also alleged that the defendants violated the Privacy

Act of 1974, 5 U.S.C. § 552a(g)(5).

The Amended Complaint sought declaratory and injunctive relief as to past

and future retaliation and any adverse employment actions; actual economic

damages; compensatory damages, including those for past and future pecuniary

losses, emotional pain, suffering, inconvenience, mental anguish, loss of

enjoyment of life, and other nonpecuniary losses; pre- and post-judgment interest;

and attorneys’ fees and costs. Appellant’s App. at 32.

The Privacy Act claim and the entire action against the Department of

Justice were dismissed on motions by the defendants. The Title VII claim against

the Secretary of the Department of Energy was tried to a jury beginning on

December 4, 2000. The jury returned a verdict against Villescas, specifically

finding that the Secretary had taken no adverse action against him. Id. at 96.

On December 11, 2000, several days after the jury trial, Mr. Villescas’

ADEA claim was tried to the court in a trial lasting less than one day. The court,

relying on evidence introduced at the jury trial and some additional testimony by

Mr. and Mrs. Villescas, found that the investigation and referral in question

constituted unlawful retaliation for testifying in an ADEA case, causing

Mr. Villescas emotional distress. Specifically, the district court found that the

investigation was likely to deter Villescas from testifying (although it did not),

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and that the investigation and referral carried a “significant risk of damage to

reputation and humiliation,” Id. at 89-90 (although no damage to reputation was

found).

The district court then found that Mr. Villescas suffered damage in the

form of “humiliation, embarrassment [and] emotional distress . . . .” id. at 91, and

awarded him $50,000.00 as compensation solely for that damage. Id. at 92, 96.

The court subsequently awarded Mr. Villescas attorney’s fees in the amount of

$150,192.50, plus interest, and costs in the amount of $2,338.35.

B.

This appeal from the judgment on those amounts is significant for what is

not appealed, and therefore conceded, as much as for the narrow, and solely legal

question presented. As to the former, we take it as conceded by the government

(unless sovereign immunity overrides such a concession), that 29 U.S.C.

§ 633a(a) encompasses claims for retaliation; and that the retaliation in this case

caused Mr. Villescas emotional distress and humiliation. We also take it as

conceded by the government that the investigation and referral in question

constituted the type of “personnel actions” contemplated by § 633a(a), even

though they did not affect Mr. Villescas’ job, pay, promotion prospects or other

economic incidents of employment in any way.

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 Likewise, we take it as conceded by Mr. Villescas that he suffered no

damage except emotional distress and humiliation (in which we include

embarrassment), and is entitled to no relief on other grounds. In short, then, this

federal employee ADEA retaliation action, as presented to us, boils down to one

for compensation for non-economic, intangible harms of emotional distress and

humiliation, and attorney’s fees.

As for what is appealed, the government raises the following two legal

issues: (1) Does 29 U.S.C. § 633a(c), which authorizes “legal or equitable

relief,” permit an award of compensatory damages in an action solely for

emotional distress? and (2) Does sovereign immunity preclude such an award

under § 633a(c)? Appellant’s Br. at i. The government also challenges the award

of attorney’s fees. The issues as stated by the government make no mention of

retaliation as the cause of action. For his part, Mr. Villescas insists, correctly, that

the issues relate not just to compensatory damages for discrimination generally,

but specifically to retaliation for engaging in protected conduct—which is what

was alleged in the district court and is the basis for the court’s findings and

judgment.

These are all legal questions which we review de novo.

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 DISCUSSION

I.

The government’s two issues, as we recast them, are whether § 633a(c) of

the ADEA permits separate damages for emotional distress in a retaliation claim,

and whether such damages are precluded by sovereign immunity. 3 Those issues

tend largely to overlap for purposes of our disposition, since it is Villescas’ view

that § 633a(c) unequivocally permits such damages. That is, if the statute clearly

permits separate compensatory damages for emotional distress in a retaliation

case, it follows that Congress waived the government’s immunity from actions for

those damages. However, it is more appropriate to address the subject under the

constraints of sovereign immunity.

A waiver of the Federal Government’s sovereign immunity must be
unequivocally expressed in statutory text, see, e.g., United States v.
Nordic Village, Inc., 503 U.S. 30, 33-34, 37 (1992), and will not be
implied, Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95
(1990). Moreover, a waiver of the Government’s sovereign
immunity will be strictly construed . . . .

3
Inexplicably, the government did not raise the issue of sovereign immunity
in the district court in either a timely or adequate fashion; so, as a practical
matter, the district court had no opportunity to consider the question. However,
the issue cannot be waived by government attorneys, and we are required to
address it even though raised for the first time on appeal. See United States v.
Richman (In re Talbot), 124 F.3d 1201, 1205 (10th Cir. 1997); Hicks v. Gates
Rubber Co., 928 F.2d 966, 970 (10th Cir. 1991).

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Lane v. Pena, 518 U.S. 187, 192 (1996). The Court will “constru[e] ambiguities

in favor of immunity,” United States v. Williams, 514 U.S. 527, 531 (1995). And,

“limitations and conditions upon which the Government consents to be sued must

be strictly observed and exceptions thereto are not to be implied.” Lehman v.

Nakshian, 453 U.S. 156, 161 (1981).

A.

In general, as to non-government employees, the ADEA, enacted in 1967,

(codified as amended at 29 U.S.C. §§ 621-34), “broadly prohibits arbitrary

discrimination in the workplace based on age.” Lorillard v. Pons, 434 U.S. 575,

577 (1978). The substantive anti-discrimination provisions of the Act are

patterned on Title VII, while its remedial and procedural provisions are based on

parts of the Fair Labor Standards Act of 1938 (FLSA), 4 subject to certain

modifications and limitations. 29 U.S.C. § 626(b); see McKennon v. Nashville

Banner Pub’g Co., 513 U.S. 352, 357 (1995); Comm’r v. Schleier, 515 U.S. 323,

325-26 (1995); Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756 (1979); Lorillard,

434 U.S. at 578-80.

In a private-sector ADEA suit the district court is authorized to afford

“such legal or equitable relief as may be appropriate to effectuate the purposes

4
29 U.S.C. §§ 211, 215, 216 and 217.

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of” the ADEA. 29 U.S.C. § 626(b) and (c). That relief may include “without

limitation” judgments compelling reinstatement, backpay, payment of wages

owed, injunctive relief, declaratory judgment, attorney’s fees, “and an additional

equal amount as liquidated damages . . . . [i]n cases of willful violations of [the

Act].” 29 U.S.C. § 216(b); see Schleier, 515 U.S. at 323; McKennon, 513 U.S. at

357.

Both the FLSA and the ADEA contain separate subsections specifically

prohibiting retaliation for engaging in conduct protected by those Acts. 29 U.S.C.

§ 215(a)(3) and 29 U.S.C. § 623(d). The remedies section of the FLSA, § 216(b),

incorporated into the ADEA, at 29 U.S.C. § 626(b), specifically refers to

§ 215(a)(3) and states that any employer who violates that subsection “shall be

liable for such legal or equitable relief as may be appropriate to effectuate the

purposes of” that specific section. 29 U.S.C. § 216(b).

B.

In 1974 the ADEA was amended to cover federal employees. In 1978,

Congress amended § 633a to make it clear that the section relating to federal

employees was independent of and unaffected by the FLSA and sections of the

ADEA relating to private sector employees. As amended, § 633a provides in

relevant part as follows:

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 § 633a. Nondiscrimination on account of age in Federal
Government employment

(a) Federal agencies affected

All personnel actions affecting employees or applicants for
employment who are at least 40 years of age . . . in executive
agencies . . . shall be made free from any discrimination based on
age.

(b) Enforcement by Equal Employment Opportunity
Commission . . . ; remedies; . . .

Except as otherwise provided in this subsection, the Equal
Employment Opportunity Commission is authorized to enforce the
provisions of subsection (a) of this section through appropriate
remedies, including reinstatement or hiring of employees with or
without backpay, as will effectuate the policies of this section.

...

(c) Civil actions; jurisdiction; relief

Any person aggrieved may bring a civil action in any Federal
district court of competent jurisdiction for such legal or equitable
relief as will effectuate the purposes of this chapter.

...

(f) Applicability of statutory provisions to personnel action of
Federal departments, etc.

Any personnel action of any department, agency, or other
entity referred to in subsection (a) of this section shall not be subject
to, or affected by, any provision of this chapter, other than the
provisions of section 631(b) of this title and the provisions of this
section.

29 U.S.C. § 633a (emphasis added).

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 In characterizing § 633a, the Supreme Court observed that by its enactment,

“Congress deliberately prescribed a distinct statutory scheme applicable to the

federal sector, and one based not on the FLSA but . . . on Title VII . . . .”

Lehman, 453 U.S. at 166-67. The Court emphasized that under § 633a, federal

personnel actions, in addition to being free of any application of the FLSA, “are

not subject to any other section of ADEA” 5; and that § 633a is “self-contained

and unaffected by other sections.” Id. at 168. 6

Against this backdrop, we address the issue in this case without pausing to

examine whether any action for retaliation is permissible at all under § 633a,

given the fact that § 633a(f) excludes the anti-retaliation provisions of the FLSA

and the ADEA. See 29 U.S.C. §§ 215(a)(3), 623(d). The government accepts the

existence of such a cause of action pursuant to regulations issued by the EEOC

(presumably under the rule-making grant of authority in § 633a(b)). See

Appellant’s Br. at 4 (citing 29 C.F.R. § 1614.101 (statement of general policy)).

The court, of course, noted one exception – the explicit reference to
5

§631(b) found in §633a(f) – but it was not relevant there and is not relevant here.
6
The Conference Report accompanying the Age Discrimination in
Employment Act Amendments of 1978 states that “[t]he House Bill also makes it
clear that section 15 of the act relating to Federal employees is independent of
any other section of the act, except section 12(b) which contains the age
limitation for Federal employees.” H.R. Conf. Rep. No. 95-950, at 11 (1978),
reprinted in 1978 U.S.C.C.A.N. 528, 532.
The House Report on the same Act states that “[s]ection 15 of the act which
prohibits employment discrimination on account of age in Federal Government
employment is complete in itself.” H.R. Rep. No. 95-527, pt. 1, at 11 (1977).

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This court has assumed the existence of such a cause of action. See Lujan v.

Walters, 813 F.2d 1051, 1052, 1058 (10th Cir. 1987); cf. Forman v. Small, 271

F.3d 285 (D.C. Cir. 2001)(finding a cause of action for retaliation under §633a).

C.

No circuit has decided whether the “legal or equitable relief” clause of

§ 633a(c) waives sovereign immunity from damages for emotional distress in an

age discrimination action based on retaliation. As the government correctly

points out, it is established law in this and most other circuits that, in general,

separate damages for emotional distress are not available under identical “legal or

equitable relief” clauses in private sector ADEA cases. 7 See Perrell v.

FinanceAmerica Corp., 726 F.2d 654, 657 (10th Cir. 1984) (damages not

permitted for psychological pain and humiliation in ADEA cases) (citing cases);

see also Schleier, 515 U.S. at 326 (“[T]he Courts of Appeals have unanimously

held, and respondent does not contest, that the ADEA does not permit a separate

7
Subsection 626(b) provides in part: “In any action brought to enforce this
chapter the court shall have jurisdiction to grant such legal or equitable relief as
may be appropriate to effectuate the purposes of this chapter, including without
limitation . . . .” Subsection 626(c)(1), as amended, provides in part: “Any
person aggrieved may bring a civil action in any court of competent jurisdiction
for such legal or equitable relief as will effectuate the purposes of this chapter.”
29 U.S.C. §§ 626(b) and 626(c).

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recovery of compensatory damages for pain and suffering or emotional distress.”)

(citations and note omitted).

In Smith v. Office of Pers. Mgmt., 778 F.2d 258, 261-62 (5th Cir. 1985),

the Fifth Circuit, applying sovereign immunity analysis, extended the general rule

against damages for emotional distress to actions under § 633a, reasoning that

Congress did not intend to provide broader relief to federal employees than for

private sector employees. 8 We agree. There is no reason why our rule in Perrell

does not apply to cases brought under § 633a.

Mr. Villescas concedes that in general courts will not award separate

damages for emotional distress in ADEA cases. However, he contends that

retaliation cases are an exception to the general rule. See Appellee’s Opening Br.

at 16-18. His principal support for that argument is a trio of Seventh Circuit

cases: Moskowitz v. Trustees of Purdue University, 5 F.3d 279 (7th Cir. 1993);

Soto v. Adams Elevator Equip. Co., 941 F.2d 543 (7th Cir. 1991); and Travis v.

Gary Community Mental Health Center, Inc., 921 F.2d 108 (7th Cir. 1990).

8
In another case under the ADEA we have noted that a “rule more favorable
to litigants against the government than to litigants against private employers
seems unlikely.” Jones v. Runyon, 32 F.3d 1454, 1455 (10th Cir. 1994) (ruling
that a statute of limitations more favorable against the government than against
private parties is barred by principles of sovereign immunity).

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 The district court relied exclusively on Moskowitz. Appellant’s App. at 90.

However, Moskowitz and Soto, as they must, simply recognize the controlling

circuit authority announced in Travis (an FLSA case statutorily applicable to

private ADEA actions, § 626(b)), and add no substantive holding or extensive

reasoning on the issue in question.

In Travis the Seventh Circuit was confronted by a 1977 amendment to the

FLSA by which Congress inserted a new and separate remedy provision for

retaliation claims. 9 The court observed that legislative history on this unique

insertion was nil, so Congress must have intended that courts should decide the

extent of the remedies allowed. Id. at 112. It went on to reason that retaliation

fell into the category of intentional torts for which the term “legal” relief meant

the whole range of common law damages, including “[c]ompensation for

emotional distress, and punitive damages.” Id.

Travis (hence Moskowitz and Soto), is easily distinguished from a federal

employee action under § 633a. One begins with the obvious and material facts

that Travis deals with an FLSA statute expressly excluded from affecting § 633a

by § 633a(f); it does not analyze under the strictures of sovereign immunity; and

9
“Any employer who violates the provisions of section 15(a)(3), of this Act
[29 U.S.C. § 215(a)(3)] shall be liable for such legal or equitable relief as may be
appropriate to effectuate the purposes of section 15(a)(3), including without
limitation . . . .” Travis, 921 F.2d at 111, (quoting Pub. L. 95-151, 91 Stat. 1252
(1977) (codified at 29 U.S.C. § 216(b)).

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its view of damages includes punitive damages—highly unlikely by implication

against the sovereign in an immunity analysis. Cf. Bruno v. Western Elec. Co.,

829 F.2d 957, 966-67 (10th Cir. 1987) (punitive damages not available in ADEA

cases). Another significant difference between private and federal employee

ADEA actions is that “legal” relief under § 626(b) confers the entitlement of trial

by jury, while “legal” relief under § 633a(c) does not, because the statute does not

expressly permit it. Compare Lorillard, 434 U.S. at 583-85 with Lehman, 453

U.S. at 165-68.

But, there are at least two more very important differences. First, the FLSA

text in question 10 finds no counterpart in § 633a. “Congress did not incorporate

the FLSA enforcement scheme into [§633a].” Nashkin, 543 U.S. at 163. The

1977 Amendment to the FLSA focused expressly on § 215(a)(3), the FLSA

retaliation section,— as the Travis court observed. Travis, 921 F.2d at 111.

Second, the 1977 FLSA amendment reminds us that Congress knows how

to single out certain conduct when it wants to (e.g., the liquidated damages

provision for willful discrimination contained in § 626(b) of the ADEA), which

makes the 1978 amendment to the federal sector ADEA particularly significant.

As discussed above, in 1978 Congress amended § 633a. In so doing, it not only

chose not to single out retaliation claims for some separate range of remedies as it

10
See footnote 7, supra.

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had done just one year earlier for FLSA cases, but it barred the importation of the

FLSA (including the 1977 amendment considered in Travis), and other ADEA

provisions, from any application to § 633a. See 633a(f).

Furthermore, Congress had another opportunity to enlarge the remedies

available under the federal employee ADEA when it amended Title VII and other

Acts in the Civil Rights Act of 1991 to permit compensatory damages, subject to

caps, and it conspicuously chose not to do so for ADEA claims. 42 U.S.C.

§ 1981a(a)(1), (2), (b)(1), (2), (3).

Besides the Travis/Moskowitz/Soto contention, which for the reasons

stated, we find unpersuasive in this context, Mr. Villescas argues more

generically that “legal” relief, as used in § 633a(c), by definition includes

common law compensatory damages for emotional harm. In support he cites

cases standing generally for the proposition that legal relief means compensatory

damages. He also contends that foreclosing that avenue under § 633a(c) is to read

“legal relief” out of the statute since § 633a(b) mentions only equitable relief

such as backpay and reinstatement. The first argument is answered by our

decision in Perrell, which addressed an identical “legal or equitable relief”

provision. The second argument is answered two ways. The remedies mentioned

in § 633a(b) are only examples following the word “including” and describing the

larger term of “appropriate remedies.” And, in any event, Villescas cannot have it

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both ways: importing by implication a cause of action for retaliation, while

excluding “legal” relief for unpaid wages.

Mr. Villescas cites no other cases to us which merit discussion. They are

either district court cases controlled by the Travis trilogy, are irrelevant, contain

no holding on point, or are otherwise distinguishable. 11 Likewise, his reliance on

a general statement in the EEOC Compliance Manual is unavailing. Appellee’s

Br. at 20 (citing EEOC Directive No. 915.003: Retaliation, EEOC Compliance

Manual, Section 614, Vol. 2, 8-III(B)(1) at p. 17); see also EEOC Directive No.

915.003 at 14, note 47 (1997) (noting that compensatory and punitive damages are

available under the ADEA for retaliation claims.). It does not address § 633a and

at least in part is directly contrary to our denial of punitive damages in Bruno. In

any event, such “guidance” in a manual is not entitled to any special deference by

our court. See, e.g., Pack v. Kmart Corp, 166 F.3d 1300 (10th Cir. 1999), cert.

denied, 528 U.S. 811 (1999).

11
Mr. Villescas does not cite or rely on Passer v. American Chem. Soc’y,
935 F.2d 322 (D.C. Cir. 1991), a case highlighted in Moskowitz. Perhaps Mr.
Villescas does not rely on Passer because its holding was limited to whether or
not a private sector cause of action existed, not to what type of damages were
available; and, in addition to alleged humiliation, there was a claim for
consequential damages relating to future employability. Furthermore, Passer, of
course, did not address § 633a, or sovereign immunity.

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 D.

We conclude that Congress did not intend to create a two-tiered system of

damages under § 633a(c), waiving the government’s immunity from open-ended

damages for emotional distress related to discrimination based on retaliation, as

differentiated from all other forms of discrimination. Neither the text of the

statute nor the legislative history support the claim that the language in § 633a(c)

contains a special subcategory of damages relating to retaliation claims. To the

contrary, when Congress enacted § 633a, it omitted, for example, any provision

for damages for willful discrimination, as set out in § 626(b). It would be

anomalous to conclude that Congress would decline to waive sovereign immunity

for capped damages for willful discrimination, yet be deemed to have waived

sovereign immunity for unlimited compensatory damages for intangible, non-

economic injuries such as emotional distress (notwithstanding the former is

punitive and the latter compensatory). That conclusion is further bolstered by the

fact that Congress had opportunities both in 1978 and 1991 to extend common

law tort compensatory damage relief to apply to federal worker suits under

§ 633a, and declined to do so. We must presume that Congress was aware at

those times, and during all the years since 1974 when § 633a was passed, that the

general rule announced by the courts was to forbid damages for emotional

distress, and chose not to interfere with that rule.

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 We adhere to the view we stated in Bruno, that the central purpose of the

ADEA is to protect the older workers’ standing in the workplace. Bruno, 829

F.2d at 967; see also, e.g., Smith, 778 F.2d at 262 (finding that Ҥ633a was

designed to provide federal employees protection from age discrimination.”).

And, in sum, we hold that in § 633a, Congress did not expressly and

unambiguously waive the government’s sovereign immunity from separate

compensatory damage awards for emotional distress and humiliation.

We, of course, express no opinion with respect to whether compensation for

emotional distress would be available in a private sector retaliation claim under

§ 626(b).

II.

The district court granted attorney’s fees under the ADEA. Alternatively,

Mr. Villescas claims that they are sustainable under the Equal Access to Justice

Act, 28 U.S.C. § 2412 (1994) (EAJA). Given our holding and reversal of the

compensatory damage award (the only relief granted by the district court. See

Appellant’s App. at 96-97), the award of attorney’s fees by the district court

cannot be sustained under any theory. “[A] plaintiff ‘prevails’ when actual relief

on the merits of his claim materially alters the legal relationship between the

parties by modifying the defendant’s behavior in a way that directly benefits the

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plaintiff.” Farrar v. Hobby, 506 U.S. 103, 111-12 (1992). It is not enough for a

plaintiff to obtain merely the “moral satisfaction of knowing that a federal court

concluded that his rights had been violated.” Hewitt v. Helms, 482 U.S. 755, 762

(1987). “Of itself, ‘the moral satisfaction [that] results from any favorable

statement of law’ cannot bestow prevailing party status.” Farrar, 506 U.S. at 112

(quoting Hewitt, 482 U.S. at 762).

CONCLUSION

For the reasons stated above, the judgment of the district court, inclusive of

the award of damages, attorney’s fees and costs, is REVERSED.

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