IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 01-40495
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ROMEO SALINAS,
Plaintiff-Appellee,
VERSUS
PAUL O’NEILL,
SECRETARY, DEPARTMENT OF THE TREASURY,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
April 9, 2002
Before SMITH and DEMOSS, CIRCUIT of a retaliation claim by customs agent Romeo
JUDGES, and LAKE, District Judge.* Salinas. We vacate and remand the award and
order a remittitur unless Salinas elects a new
JERRY E. SMITH, Circuit Judge: trial on damages.
The United States, through the Secretary of I.
the Treasury, appeals the denial of a motion Salinas has worked for the Customs Service
for remittitur following a jury award in the trial since 1982, first in Louisiana, and now in
Texas. By July 1996, he had risen to the rank
of GS-12. In October 1996, in response to a
*
District Judge of the Southern District of vacancy announcement for GS-13 positions,
Texas, sitting by designation. Salinas and six others were placed on a selec-
tion register for those spots. Three of the ap- wife testified to Salinas’s loss of self esteem,
plicants were promoted that month, and three feelings of not being a competent agent, loss
more in May 1997; Salinas was the only one of sleep, stress, paranoia, fear of future
not promoted. retaliation, and high blood pressure. The
question we address is what amount and
Salinas sued under title VII and the Age quality of evidence is necessary to support a
Discrimination in Employment Act (“ADEA”), jury award on appellate review.
alleging violations for failing to promote him
because of his race and his age and in retalia- Any award for emotional injury greater than
tion for previous filings with the Equal Em- nominal damages must be supported by
ployment Opportunity Commission evidence of the character and severity of the
(“EEOC”).1 He alleged discrimination in his injury to the plaintiff’s emotional well-being.
non-selection for the vacant positions. Before Giles v. Gen. Elec. Co., 245 F.3d 474, 488
suing, he had filed three complaints with the (5th Cir. 2001).2 That a plaint iff may be en-
EEOC, two of which were resolved in his titled to something beyond nominal damages,
favor; the third was settled. however, is not to concede the reasonableness
of just any award a jury may assign. That is
At trial, the court dismissed the ADEA precisely the situation in this case. The
claim. The jury found for the government on government concedes Salinas is entitled to
the race discrimination claim but for Salinas on some compensatory damages but does not
the retaliation claim and awarded agree he should receive $300,000.3
compensatory damages of $1 million, which
the court reduced to $300,000 in accordance
with the statutory cap in 42 U.S.C. 2
See also Carey v. Piphus, 435 U.S. 247, 264
§ 1981a(b)(3)(D). The court denied the
n.20 (1978) (stating that “an award of damages
government’s motion for remittitur and must be supported by competent evidence”); Brady
entered judgment for $300,000 in v. Fort Bend County, 145 F.3d 691, 719 (5th Cir.
compensatory damages, $16,000 in medical 1998) (noting the importance of detailed, non-
expenses, backpay with interest, attorney’s conclusional statements).
fees, and costs and retroactively promoted
3
Salinas to the rank of GS-13. The award of $1 million is irrelevant to our
final result; our review of the excessiveness of an
II. award takes as its reference the capped amount,
The government appeals only the denial of here $300,000. “When deciding whether a jury
remittitur, arguing there was insufficient evi- award is excessive, we consider the amount of the
dence to support $300,000 for emotional and award after application of the statutory cap, not the
amount given by the jury. Giles, 245 F.3d at 487
mental suffering. The government
(citing Vadie v. Miss. State Univ., 218 F.3d 365,
characterizes the evidence supporting the 375-76 (5th Cir. 2000), cert. denied, 531 U.S.
award as “perfunctory, non-specific, and 1113, and cert. denied, 531 U.S. 1150 (2001)).
uncorroborated.” Specifically, Salinas and his
In other words, we treat the verdict as though
the jury had awarded $300,000, and we ask wheth-
1
42 U.S.C. § 2000e-2; 29 U.S.C. § 621; 42 er that award is “clearly excessive.” Id. at 488.
U.S.C. § 2000e-3(a). (continued...)
2
We review denial of remittitur for abuse of In practice, our evaluation of what a jury
discretion. Eiland v. Westinghouse Elec. could have awarded is tied to awards in cases
Corp., 58 F.3d 176, 183 (5th Cir. 1995); Es- with similar injuries. This comparison is lim-
posito v. Davis, 47 F.3d 164, 167 (5th Cir. ited to cases in the “relevant jurisdiction.”
1995). We set aside a decision to deny re- Douglass v. Delta Airlines, Inc., 897 F.2d
mittitur only when “left with the perception 1336, 1339 (5th Cir. 1990). The “relevant
that the verdict is clearly excessive.” Eiland, jurisdiction” for federal discrimination law can
58 F.3d at 183. only mean cases decided by this court.
A mainstay of the excessiveness In a further exercise of caution, to avoid
determination is comparison to awards for substituting our opinion for that of the jury, we
similar injuries. Dixon v. Int’l Harvester Co., often have applied a multiplier, or percentage
754 F.2d 573, 589 (5th Cir. 1985). This use enhancement, to past similar awards.6 We
of comparison is a recognition that the
evaluation of emotional damages is not readily
susceptible to “rational analysis.” Eiland, 58 5
(...continued)
F.3d at 183. We tread with caution on an this context. We disagree.
award made by a jury and upheld by a district
court.4 This caution manifests in the so-called First, there is nothing magical about the
“maximum recovery rule,” by which we remit percentage enhancement. Whether the maximum
damage awards that we find excessive to the recovery rule is applied by calculating the most a
maximum amount the jury could have jury could have awarded without requiring a new
awarded.5 Id. trial or by fixing the amount the appeals court
thinks reasonable and then tacking on a percentage
bonus to avoid supplanting the judgment of the
jury, the effect is the same. In neither case is the
3 court awarding more than the jury thought proper
(...continued)
As a result of the legislative imposition of a cap, to make the plaintiff whole. The maximum
disparate jury awards are treated the same: Any recovery rule merely strives to prevent appellate
award of $300,000 or more is dealt with as though courts from replacing what a jury thought would
the jury had, in fact, given only $300,000, and we make a plaintiff whole (after imposing the statutory
give no deference to the fact that the jury decided cap, see supra note 3) with what the court thinks
on more. would do so.
4 6
See Calderera v. E. Airlines, Inc., 705 F.2d Giles, 245 F.3d at 489 (50% multiplier);
778, 784 (5th Cir. 1983) (listing numerous Dixon, 754 F.2d at 590 (same); Calderera, 705
formulations of our great deference to such F.2d at 784 (same). But see Lebron v. United
awards). States, 279 F.3d 321 (5th Cir. 2002) (applying
33% enhancement); Marcel v. Placid Oil, 11 F.3d
5
The government points out that Giles was the 563 (5th Cir. 1994) (same); Douglass v. Delta Air-
first case in which we used the maximum recovery lines, Inc., 897 F.2d 1336 (5th Cir. 1990) (same);
rule in a discrimination case. The government Haley v. Pan Am. World Airways, Inc., 746 F.2d
argues this rule is inconsistent with the “make- 311 (5th Cir. 1984) (same). Although all of the
whole” goal of that body of law, and thus we cases using a 50% enhancement involved jury
should reconsider the applicability of the rule in trials, those applying a 33% multiplier are split.
(continued...) (continued...)
3
would not, however, apply a multiplier where premised solely on her testimony regarding her
such a calculation was a part of the award. “severe emotional distress,” “sleep loss,”
Such a calculation could lead to explosive “severe loss of weight,” and “beginning smok-
growth in damage awards resulting merely ing.” Id. We upheld the award, noting that
from the happenstance of there being several even the lone testimony of the plaintiff may
factually similar cases with similar damages support an award o f emotional damages. Id.
decided in close temporal proximity.
Most recently, we had occasion to consider
III. the sufficiency of evidence supporting an emo-
The government asserts that evidence of the tional damage award and the maximum
quantum and quality of the evidence that was recovery rule in Giles, an ADA case. Plaintiff
presented here has never been deemed to and a co-worker testified to plaintiff’s sleeping
justify an award as high as $300,000. Three of trouble, headaches, marital difficulties, and
our decisions inform our evaluation of the loss of prestige and social connections. Id. at
award made to Salinas. 488. The co-worker testified that plaintiff
“appeared despondent, depressed, down, and
In Forsyth v. City of Dallas, Tex., 91 F.3d absolutely utterly discouraged about not being
769 (5th Cir. 1996), we upheld an award of able to come back to work.” Id. The jury had
$100,000 under 42 U.S.C. § 1983 where an awarded $300,000 based on this testimony.
officer was transferred in violation of her First Drawing on Forsyth, we concluded the injury
Amendment rights. This award was premised was not of the type that could sustain a
solely on plaintiff’s testimony pointing to her $300,000 award. Id. Following the maximum
“depression, weight loss, intestinal troubles, recovery rule, we set the amount the jury
and marital problems.” Id. at 774. She also could have awarded at $100,000; we then
testified that she had consulted a psychologist. multiplied by 150% out of deference to the
Id. jury. Id.7
We considered a sex discrimination claim
stemming from discharge in Williams v. Trad- 7
One panel of this court may have awarded
er Publ’g Co., 218 F.3d 481 (5th Cir. 2000), more than $100,000 for emotional injury stemming
in which plaintiff was awarded $100,000 in from illegal discrimination. In Polanco v. City of
compensatory damages for emotional distress, Austin, Tex., 78 F.3d 968 (5th Cir. 1996), the
plaintiff initially was awarded $150,000 for
emotional injury. The district court remitted the
6
(...continued) compensatory award of $350,000 to $290,000. As
Lebron and Douglass were bench trials, while a matter of percentage, this would mean the
Marcel and Haley were jury trials. $150,000 was reduced to $124,285.
Faced with this impasse between competing We decline to use this award as a basis for
multipliers, we choose the 50% figure. The ap- deciding what a jury “could award.” Not only is
parent origins of the two multipliers are Calderera the basis of the district court’s remittitur unknown,
and Haley. Calderera predates Haley and thus but the panel did not discuss the propriety of the
controls under our circuit’s rule of orderliness. emotional injury component of the total award.
Teague v. City of Flower Mound, Tex., 179 F.3d Furthermore, the 150% rule we use here helps
377, 383 (5th Cir. 1999). (continued...)
4
Salinas and his wife have presented at least commands strong deference to the jury and to
as much evidence as did the plaintiffs in these the district judge who observed the testimony.
three cases. Salinas testified as to his high lev- “In certain cases a plaintiff’s testimony alone
el of paranoia regarding further retaliation may be sufficient proof of mental damages.”
from his superiors at customs. He also Giles, 245 F.3d at 488 (internal quotations and
testified to using “lots” of sick leave and citations omitted). We also are mindful that
visiting physicians more than seventy times and “[h]urt feelings, anger and frustration are part
spoke of his deteriorating relations with his of life . . . and [are] not the types of harm that
wife and son. could support a mental anguish award.
Damages for emotional distress may be
Salinas’s wife corroborated all of these spe- appropriate, however, where the plaintiff
cifics.8 We also note that he was awarded suffers sleeplessness, anxiety, stress, marital
$16,000 in medical expenses, a finding the problems, and humiliation.” Id. (internal
government does not challenge. Thus, quotations and citation omitted).
although Salinas did not document his medical
expenses, the jury was persuaded he had in- No bright-line rule can take account of the
curred them. This unchallenged award variety of evidence and context presented by
supports the plausibility of Salinas’s damage these types of cases.9 We make no attempt to
award in a manner not present in the four solve the problem here in the abstract; we
cases upholding awards of $100,000. simply add another example of an emotional
injury, the relevant testimony, and the
We are careful when upholding emotional corresponding award. This may be all that can
damage awards supported only by testimony be done to advance the clarity of this particular
of the plaintiff and a spouse, but we keep in corner of federal damages lawSSoffer another
mind our tradition of appellate review that anecdote to the slow accretion of reported
case law on emotional damages in the hope
that future decisions will have more on which
7
(...continued) to draw.
correct any potential unfairness to the plaintiff
from this reading of precedent. Our opinion in Vadie offers a useful
comparison, for the testimony of Salinas and
8
The government tries to avoid the impact of his wife stands in instructive contrast to that of
this detailed testimony of emotional harm by the plaintiff in Vadie, in which plaintiff sued
linking it to an incident earlier in Salinas’s career for discriminatory discharge and retaliation un-
in which he witnessed the death of a fellow customs der title VII. Vadie, 218 F.3d at 367. The
agent and his family in a work-related traffic discrimination claim was reversed on appeal,
accident. The jury, by awarding emotional
damages in the amount of $1 million (which we
deem to be $300,000, see supra note 3), obviously
9
believed Salinas’s injury was traceable to the See, e.g., Price v. City of Charlotte, N.C., 93
actions of the government and not to the accident. F.3d 1241 (4th Cir. 1996) (reviewing cases and
Where a jury chooses to believe two equally concluding awards may be proper when supported
plausible stories, our review is foreclosed. Wilson by testimony of specific harm that is capable of ar-
v. Monarch Paper Co., 939 F.2d 1138, 1146 (5th ticulation, even if sole testimony is that of the
Cir. 1991). plaintiff).
5
leaving only the retaliation theory to support allowing his wife to get the mail by herself.
an emotional damages award of $300,000. Id.
at 376. The whole of plaintiff’s testimony was All of this was corroborated by his wife.
in response to a single question from counsel The testimony of medical problems was con-
and was uncorroborated.10 The panel firmed by a $16,000 award of medical expens-
concluded that this testimony could support an es. In sum, Salinas has offered far more than
award of only $10,000. Id. at 378. did the Vadie plaintiff to substantiate his
emotional injury.
Salinas offered a much more detailed de-
scription of the emotional harm he had Nevertheless, Salinas has not presented
suffered, noting the effect it had on his job and enough evidence to support an award of
on his relationship with his wife and son. He $300,000; a comparison with other emotional
mentioned particular manifestations of his damage awards in this circuit stemming from
emotional harm in health problems leading to discrimination points to $100,000 as the prop-
numerous visits to a physician. He described er award. In keeping with our duty to avoid
in detail the specifics of his paranoiaSSthat it substituting our opinion for that of the jury, we
caused him to buy an alarm for his house and multiply this amount by 150%. Giles, 245
reduced him to a constant state of fear, always F.3d at 489. Anything more would be “clearly
looking over his shoulder and not even excessive.” Eiland, 58 F.3d at 183.
We stress that this amount is neither the
10
minimum nor the maximum for emotional
In full, the question and answer were:
damage claims in discrimination claims. Nor is
this amount a floor or ceiling for such claims
Q. All right. Dr. Vadie, let me ask you this:
When you did not get this job as a professor supported by the testimony of a plaintiff and
in the Chemical Engineering spouse. All this figure represents is the last
DepartmentSSyou were saying you love dollar amount Salinas can be awarded based
Mississippi State UniversitySShow did it on the evidence he presented for the damages
affect you or how did it make you feel so far he has suffered before that amount would be
as your worrying and anxiety over that was excessive as a matter of law. We remit the
concerned? Describe that for the jury. compensatory damage portion of Salinas’s
award to $150,000 unless he elects a new trial
A. . . . It destroyed me. It totally ruined me, on damages. Id.
and I become sick, totally ill, physically,
mentally, and everything. I took many VACATED and REMANDED.
doctors, many pills.
Judge DeMOSS concurs in the judgment
I did not know what to do, where to go,
what to say. I did not know whether it was
only.
nighttime or daytime. I could not sleep for
months at a time. Headache, nausea. Still
I am under severe doctor surveillance
because of what they have done to me . . . .
Vadie, 218 F.3d at 377.
6