Opinion
Civil Action No: 02-3254, Section: "J" (1).
June 3, 2005
ORDER AND REASONS
Before the Court is the Motion for Judgment as a Matter of Law and Motion to Alter or Amend Judgment filed by the defendant, (Rec. Doc. 113), and the Motion to Alter, Amend and/or Supplement Findings, etc. filed by plaintiff (Rec. Doc. 112). Both motions are opposed. For the reasons which follow, the Court finds that defendant's motion should be granted in part, and the jury's award for plaintiff's damages remitted to $96,000. In the event this remittitur is not accepted, the Court will order a new trial on the damages for which remittitur is rejected. In all other respects, the motions must be denied.
Background
This matter was tried to a jury on October 25-27, 2004. The jury returned a verdict in the amount of $250,000 for past intangible losses, and $250,000 for future intangible losses. The question of equitable relief was submitted separately to the Court, and in its opinion entered on March 24, 2005 (Rec. Doc. 108), the Court awarded plaintiff $32,634.2 in equitable damages for the retaliation claim.
Arguments of the Parties
In its motion for judgment as a matter of law, defendant argues that there is insufficient evidence to support the jury's verdict. Specifically, defendant claims that the evidence presented to the jury was too weak to establish causation for the retaliation claim — that the Navy discriminated against Campbell in 2001 because of his EEO activity related to the 1997 selection. Alternatively, defendant argues that the jury's award of $500,000 exceeds the statutory limit for compensatory damages, and further, that insufficient evidence was adduced to support an award of $300,000 (the applicable statutory limit). The Navy also takes issue with the methodology used for calculating plaintiff's equitable award, suggesting that it must be reduced as well.
In his motion presently before the Court, plaintiff seeks to amend the equitable award to grant plaintiff the full value of what he would have received had he applied for and been selected for the 2001 position, rather than 20% of this value which the Court awarded based on the lengthy rationale set forth in its prior order (Rec. Doc. 108).
Discussion
With respect to defendant's contention that the evidence on causation was insufficient to establish the retaliation claim, the Court will not re-hash the entire transcript here but pauses briefly to refer to that portion of the testimony of CDR Mary Logsdon, who made the decision to reclassify the position at issue in 2001, in which she testified that she was aware that Campbell had previously applied for and been passed over for the 1997 position even though he had been rated "best qualified," and that she knew of Campbell's EEO claims before she reclassified the job. Tr. 280-85. She also acknowledged that she knew that Campbell was not an engineer and the effect of the reclassification would be to exclude him for applying for the 2001 GS-13 position. Tr. 284, 447. These facts, coupled with the fact that the reclassification did indeed prevent plaintiff from applying for the 2001 GS-13 position for which the job description substantially overlapped the previous one for which he had been found "best qualified" is enough to permit a fact-finder to infer discriminatory/retaliatory intent.
With respect to the equitable award, neither plaintiff's nor defendant's arguments for amending it persuade the Court that it should alter the methodology or result set forth at length in its prior order. Rec. Doc. 108. The Court therefore stands by its original order and reasons on this point.
With respect to defendant's motion for remittitur, the Court agrees that plaintiff's intangible losses award must be remitted, as discussed more fully below.
The $300,000 statutory limit
Under Title VII, for employer-defendants who have more than 500 employees and are found liable under the statute, "[t]he sum of the amount of compensatory damages awarded . . . for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and the amount of punitive damages awarded under this section, shall not exceed, for each complaining party . . . $300,000." 42 U.S.C.A. § 1981a(1)(D). Plaintiff was awarded $250,000 each for past and future intangible losses, or $500,000. However, under 42 U.S.C. § 19831a, plaintiff is bound to the statutory limit of $300,000. Accordingly, as a threshold matter, plaintiff's damages must be reduced to $300,000, or $150,000 each for past and future intangible losses.
Additional remittitur is required
In addition to remitting plaintiff's award to the statutory maximum, the Court also considers defendant's argument that the award must be additionally remitted, because insufficient evidence of damages is present to justify a $300,000 award. In the instant case, plaintiff testified that as a result of the retaliation, he was humiliated, that he suffered from sleeplessness that he treated with over-the-counter medications, that his work situation made it impossible for him to talk to his wife, and that it was stressful for him to be involved in the lawsuit. Tr. 421. His co-worker, Paul McIntyre, testified that following defendant's retaliatory conduct, Campbell changed from being an easy-going individual to having a "short fuse." Tr. 427. He further testified that in his opinion, based on his personal knowledge of Campbell over the years, Campbell was "stressed out" and "depressed over this whole situation." Tr. 428. According to McIntyre, Campbell was participating less in the workplace and it was possible that Campbell was "about to give up." Id.
In considering further remittitur, the Court notes that the Fifth Circuit has endorsed two competing methods for evaluating the propriety of a jury award, the "maximum recovery rule," and what may be termed the "clearly excessive rule." Under the "maximum recovery rule," a court reviewing a jury verdict should remit damage awards that are found to be excessive to the maximum amount the jury could have awarded. Salinas v. O'Neill, 286 F.3d 827, 830 (5th Cir. 2002). The maximum amount is determined by comparing the award under scrutiny to awards in other similar cases. A multiplier of 50% is then applied to arrive at the maximum recovery amount, and the jury award is remitted to that amount if necessary. Id.; see also, Thomas v. Texas Dep't of Crim. Justice, 297 F.3d 361, 369 n. 8 (5th Cir. 2002). Under the "clearly excessive" rule, a "damage award may be overturned only upon a clear showing of excessiveness or upon a showing that the jury was influenced by passion or prejudice." Eiland v. Westinghouse Elec. Corp., 58 F.3d 176, 183 (5th Cir. 1995). Applying this rule, courts have traditionally frowned upon comparing an award to awards in factually similar cases as a method for determining if an award is excessive. Johnson v. Offshore Express, Inc., 845 F.2d 1347, 1356 (5th Cir. 1988) ("we do not determine excessiveness of damage awards by comparing verdicts in similar cases, but rather we review each case on its own facts."); see also, Thomas, 297 F.3d at 374 n. 5 (Dennis, J., concurring) (citing Fifth Circuit cases for this proposition). Rather, this inquiry emphasizes the uniqueness of each case, which must be determined upon its own facts, while recognizing that comparisons may serve as a point of reference. 297 F.3d at 374.
Indeed, it appears that the conclusion in Salinas that the "mainstay of the excessiveness determination is comparison to awards for similar injuries," 286 F.3d at 830, only became entrenched after certain Fifth Circuit and Louisiana precedent was "lost in translation." Salinas relied for the "mainstay" proposition on Dixon v. International Harvester, but Dixon states only that "prior awards may be of some aid when the present award is shown to be greatly disproportionate to past awards for similar injuries." 754 F.2d 573, 589 (5th Cir. 1985) (emphasis added). Dixon, in turn, relied for this proposition on Haley v. Pan American World Airways, Inc., 746 F.2d 311 (5th Cir. 1984), a Louisiana diversity case, which stated 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." Id. at 318. Nevertheless, Haley, sitting in diversity, employed the comparison method in accordance with Louisiana law, acknowledging that "prior awards may be of some aid in determining excessiveness." Id. Thus, the leap from stating that comparisons are of limited use but may be of some aid, to concluding that they are the "mainstay of the excessiveness determination" is simply not supported by the precedents cited for that rule. Thomas, 297 F.3d at 375 (Dennis, J., concurring).
In any event, to recover damages for an emotional injury, "[a] plaintiff must present evidence of an emotional injury's character and severity to recovery greater than nominal damages."Id. at 368. This requires "specific evidence of the nature and extent of the harm." Id. (citations omitted). While corroboration and expert testimony is preferable, id., "[i]n certain cases a plaintiff's testimony alone may be sufficient proof of mental damages." Salinas, 286 F.3d at 832 (quotations omitted).
In the instant case, the Court concludes that applying either the maximum recovery rule or the clearly excessive rule, plaintiff's award must be reduced.
Application of the Maximum Recovery Rule
Under the maximum recovery rule, the Court finds that damages of $32,000 each for past and future damages is in keeping with the awards in similar cases. For instance, in Thomas, the Fifth Circuit affirmed an award of $30,000 for past emotional distress, and remitted an award of $100,000 for future emotional distress to $75,000. 297 F.3d 361. In that case, the plaintiff testified that after being denied a promotion and throughout the retaliatory period, she "was tearful, felt like a failure, felt isolated from her coworkers, and felt helpless to alter her circumstances." Id. at 370. In addition, she suffered from sleeplessness, nausea, and a deepening depression for which she sought psychiatric treatment and for which an antidepressant was prescribed. Id. Her testimony was corroborated by her brother, her sister, and a co-worker. While the Court found that this evidence supported an award of $30,000 for past emotional distress, it did not support an award of $100,000 for future emotional harm, when the principal harm had been in the past, during the retaliatory period, and plaintiff had been transferred to another unit where she enjoyed her job, had received favorable evaluations, and was named employee of the month. Id. Noting that "[t]he evidence pointed to some ongoing and future emotional distress,". . . the Court opined it would be "nothing as severe as what Thomas suffered during the retaliatory period." Id. at 371. Concluding that a reasonable jury could have awarded $50,000 for this harm, the Court added a 50% multiplier to bring the total to $75,000 for future harm.
The Court anticipates a protest by defendant that because Thomas affirmed a $30,000 award for more severe past emotional distress than plaintiff experienced, plaintiff herein should not receive more than that. However, the fact that the Thomas court did not remit the $30,000 award does not mean that it is the highest award the jury could have reasonably made without being subject to remittitur. It simply means that the $30,000 had not reached the tipping point that required remittitur. Moreover, application of the 50% multiplier would justify an award underThomas of $45,000 for a plaintiff with similar emotional injuries.
In reaching this result, the Thomas case discussed recent emotional distress awards in similar employment discrimination and § 1983 cases. As examples of cases justifying awards on the higher end, the Court cited five cases. For instance, in Forsyth v. City of Dallas, Tex., 91 F.3d 769, 775 (5th Cir. 1996), the Court upheld an award of $100,000 to an officer transferred in violation of her First Amendment rights. That award was made based upon the plaintiff's testimony that she experienced depression, weight loss, intestinal troubles, marital problems, and had consulted a psychologist. Id. In Rizzo v. Children's World Learning Ctrs., Inc., 173 F.3d 254, 262 (5th Cir.),vacated, 187 F.3d 680 (5th Cir. 1999), aff'd on other grounds, 213 F.3d 209 (5th Cir.) (en banc), cert. denied, 531 U.S. 958 (2000), the Fifth Circuit upheld a $100,000 award under the Americans with Disabilities Act for past and future mental anguish, without discussing specifically the nature of Rizzo's emotional damages, even though plaintiff's lost wages award was only $182.00. Id. In Williams v. Trader Publ'g Co., 218 F.3d 481 (5th Cir. 2000), noting that the plaintiff's testimony alone can support an award for emotional damages, the Court approved an award of $100,000 for emotional distress based on the plaintiff's testimony that she had experienced severe emotional distress, sleep loss, severe loss of weight, and had begun smoking. Id. at 486.
In Giles v. General Elec. Co., 245 F.3d 474 (5th Cir. 2001), the Court remitted to $100,000 an emotional damage award where a coworker testified that the plaintiff had suffered "sleeping trouble, headaches, marital difficulties, and loss of prestige and social connections. The coworker testified that the plaintiff appeared despondent, depressed, down, and absolutely utterly discouraged about not being able to go back to work."Thomas, 297 F.3d at 369, citing Giles, 245 F.3d at 488 (internal quotations omitted). Last, the Thomas court noted that in Salinas, 286 F.3d at 832, it had remitted a jury award from $300,000 to $100,000, in a case in which a customs service agent won a title VII claim for retaliation. In that case, "the plaintiff and his wife had testified that the retaliation caused him to suffer from paranoia, take excessive sick leave, and visit physicians more than seventy times," and that plaintiff's emotional damages significantly affected his relationship with his wife and son. Thomas, 297 F.3d at 369-70 citing Salinas, 286 F.3d at 832.
The Thomas court also addressed three employment discrimination cases in which it had remitted emotional distress awards to less than six figures. For example, in a case in which the plaintiff's testimony was uncorroborated and all of plaintiff's physical and psychological complaints occurred after the discharge, the court vacated a $100,000 damage award for emotional damages. Flowers v. Southern Reg'l Physician Servs., Inc., 247 F.3d 229 (5th Cir. 2001). In another case, Vadie v. Mississippi State University, 218 F.3d 365 (5th Cir. 2000), the Court remitted a title VII award of $300,000 to $10,000, finding that the uncorroborated testimony of plaintiff that s/he was "destroyed," "totally ruined," "totally ill," and "took many doctors, many pills" was insufficient to support the verdict. Thomas 297 F.3d at 370 citing Vadie, 218 F.3d at 375-76. Finally, in Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927 (5th Cir. 1996), a case where a hospital discriminated against a nurse and a medical technician, the Court remitted $40,000 and $150,000 awards to nominal damages, based on one plaintiff's uncorroborated testimony of feelings of frustration, low self-esteem, anger, and paranoia, and the other's testimony that her discharge emotionally scarred her and resulted in unemployment. Id. at 939-40.
To the extent the undersigned would apply the "maximum recovery" rule, Thomas and the discussion of cases collected therein offers guidance. First, the examples in which damages were remitted from six figures to nominal damages or vacated all share the common feature that the plaintiff's damage testimony was uncorroborated. Second, in several of the "six figure" cases, it appears that the plaintiff's emotional damages did not require doctor's visits or involve a vast related medical history. Accordingly, the cases do not suggest that Campbell's award should be only nominal, nor should an award approaching six figures be precluded because he did not consult a physician or psychiatrist.
While the Court acknowledges that plaintiff's testimony on damages was brief, the Court had the opportunity to observe Campbell on the stand and found his testimony to be credible. Moreover, it was corroborated by Campbell's co-worker, distinguishing him from the lower-end or nominal award cases in which there was no corroboration or corroboration only by a spouse. While Campbell does not have the lengthy medical history present in some of the "six figure" cases, the Court, based upon its observation of Mr. Campbell as well as his testimony, came away with the impression that while it is simply not in his nature to run to the doctor for things that do not have an acute, physical manifestation, nonetheless, his emotional damages were real. To rule out the possibility of recovering for them because he did not accumulate a vast medical history would be to penalize him because he is more stoic than others might be.
Comparing the facts of the instant case to those in Thomas, the most recent case (and one which synthesized prior cases), the Court observes that undoubtedly, Thomas's physical symptoms and medical history were more severe than Campbell's. On the other hand, Thomas was no longer experiencing most of the emotional harm she was exposed to at the time of her $75,000 future emotional damages award, whereas Campbell remains indefinitely in the employ of those who were found to have discriminated against him, and indefinitely locked out of applying for a position very similar to one for which he was previously found "best qualified." Moreover, if Campbell is unable to secure a promotion to GS-13 prior to retirement, plaintiff's retirement pension will be fixed based on his GS-12 salary. The emotional toll stemming from this result could well affect him throughout his entire life expectancy.
Given this, the Court finds that under the "maximum recovery" rule, using Thomas as a guidepost (and recognizing that theThomas award was the result of a synthesis of comparable guidepost cases), the Court finds that an award of $32,000 for past intangible damages and $32,000 for future intangible damages is reasonable. This figure places Campbell's award for each of his past and future damages somewhere between nominal damages and the $50,000 (pre-multiplier) award that Thomas received for her future emotional damages. Applying a 50% multiplier to the $64,000 total, the Court concludes that Campbell should receive $96,000. Application of the clearly excessive rule
The Court also finds that this award satisfies the "clearly excessive test." Considering the minimal damages evidence adduced at trial, the Court finds an award of $300,000 would be clearly excessive. An award of $96,000 does not strike the Court as clearly excessive, especially considering that Campbell's damages are continuing and may well continue throughout his life expectancy.
Accordingly,
IT IS ORDERED that plaintiff's Motion to Alter, Amend and/or Supplement Findings, etc. (Rec. Doc. 112) should be and is hereby DENIED; IT IS FURTHER ORDERED that defendant's Motion for Judgment as a Matter of Law (Rec. Doc. 113) should be is hereby DENIED; and defendant's Motion to Alter or Amend Judgment should be and is hereby GRANTED in part as follows: if, within 20 days of entry of this order plaintiff Charlie Campbell advises the Court and opposing counsel that he accepts a remittitur of the amount awarded for past and future intangible losses reducing the award to $96,000, the Court will enter a judgment in accordance with the remitted award. If plaintiff does not accept the remittitur within 20 days of entry of this order, the Court will order a new trial on the issue of past and future intangible losses; in all other respects, the motion is DENIED. IT IS FURTHER ORDERED that any supplement to plaintiff's Motion for Attorney's Fees (Rec. Doc. 115) shall be filed within 20 days of entry of this order, and any further response from the Government shall be filed within 7 days thereafter, after which the motion will be considered submitted.