Thomas v. Texas Dept. of Criminal Justice

• Decision Date: 01 July 2002
• Docket Number: No. 01-20247.,01-20247.
• Parties: Beverly THOMAS, Plaintiff-Appellee, v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

297 F.3d 361

Beverly THOMAS, Plaintiff-Appellee, v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Defendant-Appellant.

No. 01-20247.

United States Court of Appeals, Fifth Circuit.

July 1, 2002.

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Carla S. Danbury (argued), Livingston, TX, for Plaintiff-Appellee.

Anthony Gerard Brocato, Jr. (argued), Asst. Atty. Gen., Austin, TX, for Defendant-Appellant.

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

Before REAVLEY, SMITH and DENNIS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Beverly Thomas sued the Texas Department of Criminal Justice ("TDCJ"), claiming it had denied her a promotion and housing because of her sex, race, and complaints to the Equal Opportunity Employment Commission ("EEOC"). In the first trial, the jury found that TDCJ had violated title VII by refusing to grant Thomas housing because of her sex and race and refusing to promote her in retaliation for her EEOC complaints. We affirmed the jury's decision on the promotion claim but held that Thomas had not properly preserved her allegations of race discrimination on the housing claim. Thomas v. TDCJ ("Thomas I"), 220 F.3d 389 (5th Cir.2000). The verdict did not distinguish between sex and race discrimination on the housing claim. The jury also had awarded damages as a lump sum. Those features of the verdict compelled a new trial on the housing claim and damages. The second jury found for TDCJ on the housing claim and awarded $30,000 for past emotional distress and $100,000 for future emotional distress based on the promotion claim.

In this appeal, we find no error in the jury instructions. We do, however, conclude that the award for future emotional distress was excessive and that the district court erred when calculating prejudgment interest. We direct a remittitur or new trial on those damages, and we remand for the district court to reconsider its award of attorneys' fees.

I.

In 1979, Thomas began working for TDCJ at its Gainesville Unit. In 1985, TDCJ promoted her to sergeant. In 1992, she transferred to the Estelle Unit. In July 1995, TDCJ promoted her to lieutenant and assigned her to work with high security prisoners. After her promotion, Thomas requested housing, because the TDCJ benefits policy permits lieutenants to live rent free in state-owned housing.

Thomas requested a hearing from Warden Fred Becker to discuss housing. Becker said that he would like to give her a house, but all of the houses were being renovated. Thomas wrote a letter asking to be placed on a waiting list. In February 1996, Fred Figueroa became Warden of the Estelle Unit. Thomas met with Figueroa and requested housing. Figueroa informed her that because she was single and had no children, her chances of receiving housing were slim to none. In June 1996, Thomas filed a complaint with the EEOC alleging that TDCJ had denied her housing on the basis of sex.

In November 1996, Thomas applied for promotion to captain. In December 1996 and January 1997, TDCJ denied her the promotion; three white males filled the available captain positions. In April 1997, Thomas filed another EEOC charge complaining that TDCJ had denied her the promotion because of discrimination on the basis of race, sex, and retaliation.

II.

In February 1997, Thomas sued TDCJ, alleging discrimination in the denial of housing and of the promotion. The district court permitted her to amend the complaint to add allegations of racial discrimination to her charge of sex discrimination regarding the housing denial. In February 1998, TDCJ placed Thomas in a house at the Estelle Unit.

The jury found that TDCJ had unlawfully denied Thomas housing because of her sex and race and had retaliated against her by failing to promote her to captain. The jury awarded $107,000 in compensatory damages. The district court entered judgment awarding compensatory damages, back pay, and attorneys' fees. The court also issued entered an injunction that forbade TDCJ from further discrimination against Thomas, ordered TDCJ to transfer her from the Estelle Unit, and ordered appropriate housing on reassignment. Finally, the court prohibited TDCJ from implementing housing policies that were contrary to anti-retaliation provisions of state and federal law or insensitive to sex discrimination.

TDCJ appealed. In Thomas I, 220 F.3d at 392-94, we affirmed the denial of TDCJ's motion for judgment as a matter of law ("j.m.l.") or a new trial on the promotion claim. We also ruled, however that the district court had abused its discretion by permitting Thomas to amend her pretrial order to add a race discrimination claim to her original sex discrimination claim for the housing delay. Id. at 395. Further, the jury instructions on race discrimination for the housing claim constituted an abuse of discretion, because the jury should not have been able to consider race discrimination. Id.

We reversed the district court only for permitting the pretrial amendment and improperly formulating jury instructions on the housing claim. Id. at 396. This also required a new trial on compensatory damages, because the jury had not divided the damage award between the housing and promotion claims. On remand, the court had to consider the merits of the housing claim and the damages owed under all the claims. Id.

At the beginning of the second trial, the court announced that "the jury instructions are simply going to be finding as to housing and finding as to damages and finding as to other damages." The court instructed that a previous jury had found that TDCJ had failed to promote Thomas and had retaliated against her.

The second jury found that TDCJ had not refused Thomas housing because of her sex. The jury then considered damages for "TDCJ's failure to promote Ms. Thomas to captain, and retaliation against her." Thomas received $30,000 for past emotional damage and $100,000 for future emotional distress.

The court entered judgment ordering the TDCJ to promote Thomas before January 31, 2001, and to pay compensatory damages of $130,000, back pay, pre- and postjudgment interest, attorneys' fees, and costs. The TDCJ filed a renewed motion for j.m.l. and new trial, which were denied.

III.

TDCJ argues that the jury instruction impermissibly led the jury to award damages for the failure to promote and retaliation as independent events. TDCJ argues that Thomas I compelled the court to inform the jury that TDCJ had retaliated only by failing to promote Thomas to captain. TDCJ misinterprets Thomas I, in which we decided that TDCJ had retaliated both by failing to promote and by refusing to transfer Thomas. The jury instructions were proper.

A.

We review an error in jury instructions for abuse of discretion. A challenge to jury instructions "must demonstrate that the charge as a whole creates substantial and ineradicable doubt whether the jury has been properly guided in its deliberations." Deines v. Tex. Dep't of Protective & Regulatory Servs., 164 F.3d 277, 279 (5th Cir.1999) (quoting Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1216 (5th Cir.1995)). A single inaccurate, ambiguous, or incomplete clause does not dictate reversal if the instructions as a whole properly express the law. Vicksburg Furniture Mfg., Ltd. v. Aetna Cas. & Surety Co., 625 F.2d 1167, 1169 (5th Cir. Unit A 1980). Even if the challenger proves the instructions misguided the jury, we reverse only if the erroneous instruction affected the outcome of the case. Deines, 164 F.3d at 279.

B.

The court repeatedly instructed the second jury to award compensatory damages for failure to promote and retaliation.¹ TDCJ correctly argues that a jury can award compensatory damages only for adverse employment actions. Mattern v. Eastman Kodak Co., 104 F.3d 702, 708-09 (5th Cir.1997). TDCJ also correctly states that if TDCJ only failed to promote Thomas, then Thomas should not also recover for retaliatory acts that did not rise to the level of adverse employment actions. Tompkins v. Cyr, 202 F.3d 770, 785-86 (5th Cir.2000).

TDCJ, however, reads Thomas I incorrectly. In Thomas I, 220 F.3d at 394 & n. 2, we addressed which actions constituted adverse employment actions severe enough to support a retaliation claim. We distinguished between the evidence of TDCJ's retaliatory motive and the employer's acts of retaliation. Id. Giving Thomas a house in deplorable condition, twice disciplining her on flimsy charges, and shouting at her for filing grievances provided evidence of TDCJ's motive. Id.

Thomas I also identified more than one retaliatory adverse employment action. The panel repeatedly used the conjunction "and" to describe TDCJ's separate actions in failing to promote and retaliating against Thomas.² We identified two, separate adverse employment actions — the "failure to promote Thomas" and the "refusal to transfer her to other positions."³

After TDCJ denied Thomas the promotion to captain, she repeatedly applied for transfers outside the Estelle unit, where her race, sex, and history of complaints would not be an issue. Thomas applied for a program administrator post and an administrative technician position. The TDCJ denied all of these transfer applications, and, in Thomas I, the panel interpreted the verdict as finding that the "refusal to transfer" was retaliatory. Given our holding in Thomas I, the district court correctly instructed the jury to consider both the failure to promote and TDCJ's other retaliatory action.

C.

The district court also refused to give any instruction concerning front pay. This made sense, because the court did not permit the jury to consider the issue of front pay. The only instruction the court gave on pay was that the court, not the jury, would decide back pay.

TDCJ maintains that the court should have given a companion instruction expressly excluding front pay. TDCJ argues that the jury inevitably inferred that it should include front pay in compensatory damages, despite the absence of any...