Thomas v. Texas Department of Criminal Justice

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