135 F.3d 1041 (5th Cir. 1998), 96-11406, Migis v. Pearle Vision, Inc.

Docket Nº:96-11406.
Citation:135 F.3d 1041
Party Name:Melissa MIGIS, Plaintiff-Appellee, Cross-Appellant, v. PEARLE VISION, INC., Defendant-Appellant, Cross-Appellee.
Case Date:March 10, 1998
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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135 F.3d 1041 (5th Cir. 1998)

Melissa MIGIS, Plaintiff-Appellee, Cross-Appellant,


PEARLE VISION, INC., Defendant-Appellant, Cross-Appellee.

No. 96-11406.

United States Court of Appeals, Fifth Circuit

March 10, 1998

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[Copyrighted Material Omitted]

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Kenneth H. Molberg, Wilson, Williams, Molberg & Mitchell, Dallas, TX, for Migis.

Bennee Beth Jones, Larry George Cassil, Wilson, Elser, Moskowitz, Edelman and Dicker, L.L.P., Dallas, TX, for Pearle Vision, Inc.

Appeals from the United States District Court for the Northern District of Texas.

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Before REAVLEY, BARKSDALE and STEWART, Circuit Judges.

REAVLEY, Circuit Judge:

The court below entered a judgment in favor of Melissa Migis on her claim of pregnancy discrimination under Title VII, 42 U.S.C. §§ 2000e et seq. Defendant Pearle Vision, Inc. appeals on various grounds, and Migis cross appeals on an item of costs. We reverse the award of attorney's fees, and remand for further proceedings. Otherwise we affirm.

  1. Liability for Pregnancy Discrimination

    Pearle Vision argues that the trial court erred in denying its motion for judgment and finding that Pearle Vision had discriminated against Migis on the basis of her pregnancy. 1 Title VII prohibits employer discrimination against an individual because of such individual's sex. 42 U.S.C. § 2000e-2(a)(1). The term "because of sex" includes "because of ... pregnancy, childbirth, or related medical conditions." Id. § 2000e(k).

    While Pearle Vision presented a substantial case that Migis's termination was not based on her pregnancy, but instead was part of an ongoing, large-scale reduction in force, we cannot say that the district court's finding of discrimination was clearly erroneous. The evidence in support of that finding includes the following.

    Migis was a programmer/analyst in the corporate systems group of Pearle Vision's information services department. For three years she received positive employee evaluations, indicating that her work was fully satisfactory though not exceptional. Migis learned that she was pregnant in January of 1994. She told her immediate supervisor, Mark McQuay, but asked that McQuay keep the knowledge of her pregnancy to himself. Migis was concerned "because of all the women that were being let go and all the discrimination which was taking place at the time." She also wanted to wait until Mike Maher, a vice president, was transferred back to the United Kingdom in March, because she considered Maher a sexist. Management became aware of Migis's pregnancy in March or April.

    Due to pregnancy complications related to her diabetes and on the advice of her physician, Migis began working half days, and on April 6 went on temporary disability. She intended to return to work, and so informed McQuay.

    McQuay reported to Glenn Graves, the director of information services, who in turn reported to Colin Heggie, a senior vice president. In February management began discussions of a staff reduction in the corporate services group. McQuay testified that management decided to terminate Randy Ragsdale, a senior programmer/analyst, and Tracy Culpepper, a programmer/analyst. Confidential memoranda from Graves to Heggie also reflect this decision. McQuay testified that he had recommended that Migis be retained because of her performance, and that there was no reason she could not be promoted to senior programmer/analyst.

    Kelly Keahon, the head of the human resources department, advised Graves to clearly state and document for Heggie the anticipated personnel actions. While Graves testified that management had decided to eliminate three positions in the corporate systems group, his memos reflect that only two positions, held by Ragsdale and Culpepper, were to be eliminated. In addition, an

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    organizational chart has handwritten notes by Graves indicating that staffing in the corporate systems group was to be reduced by one senior programmer/analyst and one programmer/analyst. Graves did not tell McQuay that Migis, in addition to Ragsdale and Culpepper, was slated for termination.

    McQuay testified that Graves drew a distinction between maternity leave and disability leave, and was of the view that Migis had taken the latter. McQuay stated that Graves was "excited" that Migis was on disability leave because he thought Pearle Vision had greater latitude to eliminate the job if the latter type of leave was taken. Graves denied making such a statement, but the magistrate judge found McQuay's testimony more credible on this point.

    Migis gave birth in September, and on October 4 Migis met with Graves regarding her return to work. She was told that her position had been eliminated. The magistrate judge found that a senior programmer position in the corporate systems group was retained, and that a new position for a senior programmer in that group was created. The court credited McQuay's testimony that Migis was qualified for a senior programmer position.

    Graves told Migis that there was an opening for a programmer in the product support group of the information services department. This position went to Susan Marshall, who was not pregnant and had worked for Pearle Vision as a contract employee since September. Graves testified that members of the product support group were opposed to bringing Migis into their group because of her work ethic and judgment. He stated that he and the head of the product support group did not "attempt to determine [Migis's] qualifications in relationship to the qualifications or in comparison to the qualifications of Susan Marshall."

    Given this and other evidence, the magistrate judge concluded that Pearle Vision's proffered reasons for eliminating Migis's job were pretextual, and that Pearle Vision had discriminated against Migis on the basis of her pregnancy when it terminated her. While Pearle Vision offered evidence to the contrary, including plausible explanations for the documents discussed above, we are not persuaded that the district court clearly erred in finding a Title VII violation.

  2. Back Pay Damages

    Pearle Vision challenges the back pay awarded to Migis. Migis was formally notified of her termination on November 7, 1994, when she received a separation agreement which she refused to sign. Her compensation from Pearle Vision ceased on November 25. She received an offer of employment from another company on December 19, but did not begin employment there until January 23, 1995. The court awarded back pay for the period between November 25 and January 23.

    Pearle Vision argues that the back pay should only cover the period from November 25 to December 19, the date of Migis's new job offer. A Title VII plaintiff has a duty to mitigate her damages by using reasonable diligence to obtain substantially equivalent employment. Sellers v. Delgado College, 902 F.2d 1189, 1193 (5th Cir.1990). Whether the plaintiff has engaged in such an effort is a question of fact subject to review for clear error, and the burden is on the employer to prove failure to mitigate. Id.

    Migis testified that her new employer told her she could start two weeks after the December 19 offer. However, she explained that she canceled her day care after she lost her job at Pearle Vision. She described finding new day care as "a very strenuous process" and stated that she went to work immediately once she arranged for the care of her daughter. The district court did not clearly err in finding that Migis could not secure suitable child care until January 23, and had accordingly used reasonable diligence in mitigating her damages.

  3. Compensatory Damages

    Pearle Vision also challenges the district court's award of $5000 in compensatory damages. Where, as here, the employer has more than 500 employees, Title VII claimants may recover compensatory damages of up to $300,000. 42 U.S.C. §§ 1981a(a)(1) & (b)(3)(D). The statute describes such compensatory

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    damages as including damages for "emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses." Id. § 1981a(b)(3).

    Our review of mental anguish damages is for abuse of discretion. Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927, 940 (5th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 767, 136 L.Ed.2d 713 (1997). In Patterson, we reversed awards of mental anguish damages granted to two plaintiffs suing under Title VII and 42 U.S.C. § 1981. We held that awards under the two statutes are governed by the same rules, and that mental anguish damages cannot be recovered absent "some specific discernable injury to the claimant's emotional state." Id. In Patterson, one of the plaintiffs, Patterson, testified that her firing "emotionally scarred her and resulted in unemployment for almost one year." Id. Noting the lack of medical evidence or corroborating testimony, we held that Patterson had not offered sufficient competent evidence to support the award of mental anguish damages, since "[n]o evidence suggests that Patterson was humiliated or subjected to any kind of hostile work environment." Id. at 941. The second plaintiff, Brown, suing for racial discrimination, testified that the work environment was "unbearable" and was "tearing my self-esteem down," that he was subjected to racial epithets, and that he felt "frustrated" and "real bad" at being judged for the color of his skin. Id. at 939. Noting the lack or corroborating testimony or medical evidence, we found the evidence insufficient to sustain an award for emotional damages, since "[n]o evidence suggests that Brown suffered from sleeplessness, anxiety or depression." Id. at 939. The court further noted that immediately after his constructive discharge Brown obtained new employment at a higher...

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