Salinas v. O'Neill

Decision Date09 April 2002
Docket NumberNo. 01-40495.,01-40495.
Citation286 F.3d 827
PartiesRomeo SALINAS, Plaintiff-Appellee, v. Paul O'NEILL, Secretary, Department of the Treasury, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Ronald H. Tonkin (argued), Houston, TX, for Plaintiff-Appellee.

Marleigh D. Dover, Wendy M. Keats (argued), U.S. Dept. of Justice, Civil Div., App. Staff, Washington, DC, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before SMITH and DeMOSS, Circuit Judges, and LAKE, District Judge.*

JERRY E. SMITH, Circuit Judge:

The United States, through the Secretary of the Treasury, appeals the denial of a motion for remittitur following a jury award in the trial of a retaliation claim by customs agent Romeo Salinas. We vacate and remand the award and order a remittitur unless Salinas elects a new trial on damages.

I.

Salinas has worked for the Customs Service 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 vacancy announcement for GS-13 positions, Salinas and six others were placed on a selection register for those spots. Three of the applicants were promoted that month, and three more in May 1997; Salinas was the only one not promoted.

Salinas sued under title VII and the Age Discrimination in Employment Act ("ADEA"), alleging violations for failing to promote him because of his race and his age and in retaliation for previous filings with the Equal Employment Opportunity Commission ("EEOC").1 He alleged discrimination in his non-selection for the vacant positions. Before suing, he had filed three complaints with the EEOC, two of which were resolved in his favor; the third was settled.

At trial, the court dismissed the ADEA claim. The jury found for the government on the race discrimination claim but for Salinas on the retaliation claim and awarded compensatory damages of $1 million, which the court reduced to $300,000 in accordance with the statutory cap in 42 U.S.C. § 1981a(b)(3)(D). The court denied the government's motion for remittitur and entered judgment for $300,000 in compensatory damages, $16,000 in medical expenses, backpay with interest, attorney's fees, and costs and retroactively promoted Salinas to the rank of GS-13.

II.

The government appeals only the denial of remittitur, arguing there was insufficient evidence to support $300,000 for emotional and mental suffering. The government characterizes the evidence supporting the award as "perfunctory, nonspecific, and uncorroborated." Specifically, Salinas and his wife testified to Salinas's loss of self esteem, feelings of not being a competent agent, loss of sleep, stress, paranoia, fear of future retaliation and high blood pressure. The question we address is what amount and quality of evidence is necessary to support a jury award on appellate review.

Any award for emotional injury greater than nominal damages must be supported by evidence of the character and severity of the injury to the plaintiff's emotional well-being. Giles v. Gen. Elec. Co., 245 F.3d 474, 488 (5th Cir.2001).2 That a plaintiff may be entitled to something beyond nominal damages, however, is not to concede the reasonableness of just any award a jury may assign. That is precisely the situation in this case. The government concedes Salinas is entitled to some compensatory damages but does not agree he should receive $300,000.3

We review denial of remittitur for abuse of discretion. Eiland v. Westinghouse Elec. Corp., 58 F.3d 176, 183 (5th Cir.1995); Esposito v. Davis, 47 F.3d 164, 167 (5th Cir.1995). We set aside a decision to deny remittitur only when "left with the perception that the verdict is clearly excessive." Eiland, 58 F.3d at 183.

A mainstay of the excessiveness determination is comparison to awards for similar injuries. Dixon v. Int'l Harvester Co., 754 F.2d 573, 589 (5th Cir.1985). This use of comparison is a recognition that the evaluation of emotional damages is not readily susceptible to "rational analysis." Eiland, 58 F.3d at 183. We tread with caution on an award made by a jury and upheld by a district court.4 This caution manifests in the so-called "maximum recovery rule," by which we remit damage awards that we find excessive to the maximum amount the jury could have awarded.5 Id.

In practice, our evaluation of what a jury could have awarded is tied to awards in cases with similar injuries. This comparison is limited to cases in the "relevant jurisdiction." Douglass v. Delta Air Lines, Inc., 897 F.2d 1336, 1339 (5th Cir. 1990). The "relevant jurisdiction" for federal discrimination law can only mean cases decided by this court.

In a further exercise of caution, to avoid substituting our opinion for that of the jury, we often have applied a multiplier, or percentage enhancement, to past similar awards.6 We would not, however, apply a multiplier where such a calculation was a part of the award. Such a calculation could lead to explosive growth in damage awards resulting merely from the happenstance of there being several factually similar cases with similar damages decided in close temporal proximity.

III.

The government asserts that evidence of the quantum and quality of the evidence that was presented here has never been deemed to justify an award as high as $300,000. Three of our decisions inform our evaluation of the award made to Salinas.

In Forsyth v. City of Dallas, Tex., 91 F.3d 769 (5th Cir.1996), we upheld an award of $100,000 under 42 U.S.C. § 1983 where an officer was transferred in violation of her First Amendment rights. This award was premised solely on plaintiff's testimony pointing to her "depression, weight loss, intestinal troubles, and marital problems." Id. at 774. She also testified that she had consulted a psychologist. Id.

We considered a sex discrimination claim stemming from discharge in Williams v. Trader Publ'g Co., 218 F.3d 481 (5th Cir.2000), in which plaintiff was awarded $100,000 in compensatory damages for emotional distress, premised solely on her testimony regarding her "severe emotional distress," "sleep loss," "severe loss of weight," and "beginning smoking." Id. We upheld the award, noting that even the lone testimony of the plaintiff may support an award of emotional damages. Id.

Most recently, we had occasion to consider the sufficiency of evidence supporting an emotional damage award and the maximum recovery rule in Giles, an ADA case. Plaintiff and a co-worker testified to plaintiff's sleeping trouble, headaches, marital difficulties, and loss of prestige and social connections. Id. at 488. The co-worker testified that plaintiff "appeared despondent, depressed, down, and absolutely utterly discouraged about not being able to come back to work." Id. The jury had awarded $300,000 based on this testimony. Drawing on Forsyth, we concluded the injury was not of the type that could sustain a $300,000 award. Id. Following the maximum recovery rule, we set the amount the jury could have awarded at $100,000; we then multiplied by 150% out of deference to the jury. Id.7

Salinas and his wife have presented at least as much evidence as did the plaintiffs in these three cases. Salinas testified as to his high level of paranoia regarding further retaliation from his superiors at customs. He also testified to using "lots" of sick leave and visiting physicians more than seventy times and spoke of his deteriorating relations with his wife and son.

Salinas's wife corroborated all of these specifics.8 We also note that he was awarded $16,000 in medical expenses, a finding the government does not challenge. Thus, although Salinas did not document his medical expenses, the jury was persuaded he had incurred them. This unchallenged award supports the plausibility of Salinas's damage award in a manner not present in the four cases upholding awards of $100,000.

We are careful when upholding emotional damage awards supported only by testimony of the plaintiff and a spouse, but we keep in mind our tradition of appellate review that commands strong deference to the jury and to the district judge who observed the testimony. "In certain cases a plaintiff's testimony alone may be sufficient proof of mental damages." Giles, 245 F.3d at 488 (internal quotations and citations omitted). We also are mindful that "[h]urt feelings, anger and frustration are part of life ... and [are] not the types of harm that could support a mental anguish award. Damages for emotional distress may be appropriate, however, where the plaintiff suffers sleeplessness, anxiety, stress, marital problems, and humiliation." Id. (internal quotations and citation omitted).

No bright-line rule can take account of the variety of evidence and context presented by these types of cases.9 We make no attempt to solve the problem here in the abstract; we simply add another example of an emotional injury, the relevant testimony, and the corresponding award. This may be all that can be done to advance the clarity of this particular corner of federal damages law — offer another anecdote to the slow accretion of reported case law on emotional damages in the hope that future decisions will have more on which to draw.

Our opinion in Vadie offers a useful comparison, for the testimony of Salinas and his wife stands in instructive contrast to that of the plaintiff in Vadie, in which plaintiff sued for discriminatory discharge and retaliation under title VII. Vadie, 218 F.3d at 367. The discrimination claim was reversed on appeal, leaving only the retaliation theory to support an emotional damages award of $300,000. Id. at 376. The whole of plaintiff's testimony was in response to a single question from counsel and was uncorroborated.10 The panel concluded that this testimony could support an award of only $10,000. Id. at 378.

Salinas offered a much more detailed description of the emotional harm he...

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