Vance v. Union Planters Corp

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-60289
_______________
YVONNE E. VANCE,
Plaintiff-Appellee,
VERSUS
UNION PLANTERS CORPORATION, ET AL.,
Defendants,
UNION PLANTERS BANK, NATIONAL ASSOCIATION,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Mississippi
_________________________
April 25, 2000
Before DAVIS, CYNTHIA HOLCOMB
HALL,* and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Yvonne Vance sued Union Planters Bank,
N.A. (“Union Planters”), under title VII, alleg-
ing discriminatory failure to promote on the
basis of sex. A jury awarded $30,000 for lost
wages and benefits, $20,000 for emotional dis-
tress, and $390,000 in punitive damages. The
district court later reduced the total amount
awarded to $330,000 because of title VII’s
statutory limits on employer liability. Union
Planters appealed, asserting that (1) no
reasonable jury could have found sex
* Circuit Judge of the Ninth Circuit, sitting by
designation.

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discrimination, (2) the court erred in allowing
the jury to hear evidence that Union Planters
had previously been found to have violated the
Equal Pay Act, and (3) the district court
erroneously determined Union Planters’s size
for purposes of the statutory liability limits. We
affirm with regard to the first two issues and
vacate and remand on the third issue.
I.
Vance had been president of the Oxford,
Mississippi, branch of Grenada Sunburst Bank
for seven years when the cause of action arose.
She performed energetically and successfully in
her capacity as branch president and was
familiar with the Oxford financial market. Un-
ion Planters Corporation, which owned, inter
alia, First National Bank of New Albany and
United Southern Bank, agreed in July 1994 to
purchase Grenada Sunburst Bank effective
December 31, 1994.
Pursuant to a reorganization plan, Union
Planters Corporation announced that it would
consolidate its area banks into Union Planters
Bank of Northeast Mississippi, N.A. The new
bank would be headed by Pat Davis, who pre-
viously had been president of First National
Bank. Because United Southern and Grenada
Sunburst had bank branches in Oxford, the two
branches were to be consolidated. Davis was
charged with hiring a president for the newly
consolidated bank branch.
Vance promptly applied for the job, as did
Hardy Farris, the president of the United South-
ern branch in Oxford. Farris, though, had
opted to participate in an early retirement
scheme from which Union Planters Corporation
refused to release him, making Vance the only
viable candidate. Davis met with Vance and
asked for hiring recommendations from people
in the banking community. Vance’s supervisor,
Jimmy Brown, gave her a glowing
recommendation and told Davis he should
immediately hire her to lead the new bank.
Instead, Davis approached Ed Neelly, who
was now working for the Grenada Sunburst
branch in Tupelo, and offered him the job.
Neelly declined and recommended that Davis
hire Vance, with whom Neelly had worked for
years. Davis told Neelly that he was looking
to hire a “mature man.” In response, Neelly
recommended Tom Carroll as an effective
second-in-command at the new bank. Brown
also recommended Vance over Carroll. Davis
then offered the branch presidency to Butch
Collums, who had worked under Davis at First
National Bank; Collums rejected the offer.
Davis claims then to have contacted Pete
Boone, the former CEO of Grenada Sunburst
Bank. Boone denies he was ever contacted,
and testified that had he been, he strongly
would have recommended Vance over Carroll.
Davis contacted Boone’s successor, Don
Ayres, who, though he testified that he barely
knew Vance, recommended hiring Carroll over
Vance. Davis then interviewed Carroll, whose
job at Grenada Sunburst had been eliminated
during that bank’s reorganization; Carroll ex-
pressed interest in the branch presidency.
Davis hired Carroll on March 15, 1995, and
offered Vance the number two position, which
she declined. Vance resigned and accepted the
number two job at the Bank of Mississippi
branch in Oxford, where she soon rose to the
position of branch president.
Vance testified that, as a result of her fail-
ure to receive the Union Planters branch
presidency, she lost between $7,500 and
$8,000 in bonuses and $4,050 in § 401(k)
contributions. She claimed also to have lost
$3,500 in annual pay in her new job and

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incurred $15,000 to $16,000 in health expenses
because of an inability to obtain insurance upon
transferring firms. A psychologist who
examined Vance and interviewed her friends,
testified that her failure to receive the
promotion caused her to suffer from
depression, agitation, sadness, and shock.
At trial, Vance’s counsel asked Davis why
he continued to solicit male candidates for the
branch presidency when it appeared that Vance
was the only qualified applicant. Davis replied
that he wanted to hire the “the best guy, the
best person, and I saying [sic] that generically.”
Also at trial, the court denied Union Planters’s
motion in limine to prevent Vance from asking
Davis any questions about previous
adjudications in which he was determined to
have unlawfully discriminated against women
by paying them less than men. The court told
Vance’s counsel: “You may ask him if he had
ever been found to have discriminated against
women in this work place as far as pay is
concerned without going into the details or the
name of a case or anything.” Vance asked such
a question of Davis, and he responded in the
affirmative.
II.
This court has explained that
[i]n a Title VII action that has been fully
tried on the merits, such that the district
court has before it all the necessary evi-
dence to make the ultimate finding of dis-
crimination, the factual inquiry is whether
the defendant intentionally discriminated
against the plaintiff. On review, this
court must therefore decide whether the
ultimate finding of discrimination by the
district court was clearly erroneous. A
finding is clearly erroneous when al-
though there is evidence to support it, the
reviewing court on the entire evidence is
left with the definite and firm conviction
that a mistake has been made.
Davis v. Yazoo Co. Welfare Dep’t, 942 F.2d
884, 886 (5th Cir. 1991) (internal citations and
quotation marks omitted). We review a ver-
dict under the “reasonable juror” standard.
The standard is that
[t]he court should consider all of the ev-
idenceSSnot just that evidence which
supports the nonmover’s caseSSbut in a
light and with all reasonable inferences
most favorable to the party opposed to
the motion [to overturn the jury
verdict]. If the facts and inferences
point so strongly and overwhelmingly in
favor of one party that the [c]ourt
believes that reasonable men could not
arrive at a contrary verdict, granting of
a motion is proper.
Merwine v. Board of Trustees, 754 F.2d 631,
636-37 (5th Cir. 1985) (emphasis added).
A court should grant a FED. R. CIV.
P. 50(a) motion not only when the non-movant
presents no evidence, but also when there is
not a sufficient conflict in substantial evidence
to create a jury question.1 Importantly, this
articulation of the standard of review does not
require a showing of substantial evidence in
support of the jury verdict (in the manner that
this court looks for substantial evidence in
support of certain decisions by administrative
agencies). Rather, the standard requires mere-
ly a finding of a sufficient conflict in
substantial (meant as a synonym for
1 Travis v. Board of Regents, 122 F.3d 259,
263 (5th Cir. 1997) (citation and quotation marks
deleted; emphasis added).

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“material”) evidence. This can be restated as
requiring “sufficient material evidence to
support the jury’s verdict”SSthe reasonable-
juror standard.
Evidentiary rulings are reviewed for abuse of
discretion. See Jon-T Chems., Inc., 704 F.2d
1412, 1417 (5th Cir. 1983). The district
court’s interpretation of title VII’s limits on
liability is reviewed de novo. See United States
v. Santos-Riviera, 183 F.3d 367, 369 (5th Cir.),
cert. denied, 120 S. Ct. 597 (1999).
III.
In reviewing a finding of sex discrimination
in a case tried to a jury, we examine the record
to determine whether sufficient material
evidence supports a charge that the plaintiff
was treated unfavorably on the basis of sex and
that the employer’s stated reasons are pre-
textual. See Rutherford v. Harris County,
197 F.3d 173, 181 (5th Cir. 1999). Vance
introduced sufficient evidence to support the
verdict.
During the search process, Davis ap-
proached Ed Neelly, a retired branch president,
and asked whether he wanted the job of Oxford
branch president. Neelly declined the position
and recommended Vance for the position.
After Neelly turned down the job, Davis told
Neelly that he needed a “mature man in the
office in Oxford.” Neelly testified that at the
time he assumed that Davis meant that he was
interested in hiring a “mature man” for the
number two position at the new bank. Neelly
then testified that in retrospect this assumption
was incorrect, i.e., that Davis appears to have
wanted a “mature man” to head the branch.
The jury reasonably could have inferred that
this preference for “a mature man” at the bank
colored his decision to hire Carroll over Vance,
especially in light of his subsequent ac-
tionsSShiring Carroll as President and offering
Vance the number-two position. Vance also
testified that Davis told her he wanted to hire
a 40- to 50-year-old man for the number two
position because such a person would lend
stability and credibility to the bank.
Union Planters argues that these comments
were “merely stray” and thus insufficient to
constitute a basis for liability. We have held,
however, that workplace remarks like Davis’s
may constitute sufficient evidence of
discrimination if the remarks are (1) related to
sex; (2) proximate in time to the employment
action; (3) made by an individual with
authority over the employment decision; and
(4) related to the employment decision at
issue. See Krystek v. University of S. Miss.,
164 F.3d 251, 256 (5th Cir. 1999).
Davis’s remark that he wanted to hire a
“mature man” is certainly related to sex, was
said during the process of considering
candidates for the job, was uttered by the
individual who made the hiring decision, and
was obviously related to Vance’s job prospects
at the Oxford branch. Therefore, the comment
qualifies as direct and material evidence of sex
discrimination.2 Even if Vance were the only
witness to testify about the statements at issue,
2 Cf. Haun v. Ideal Indus., Inc., 81 F.3d 541,
546 (5th Cir. 1996) (holding that a company
president’s instruction to human resources officials
that he did not want to hire older workers
constitutes sufficient material evidence of age
discrimination); Portis v. First Nat’l Bank, 34 F.3d
325, (5th Cir. 1994) (holding that a supervisor’s
statement to a female subordinate that she
“wouldn’t be worth as much as the men would be
to the bank” constituted direct evidence of sex
discrimination).

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though she is not, that would not warrant
taking the case out of the jury’s hands.3
On the witness stand, Davis was asked why
he pursued a series of male candidates after it
appeared t hat Vance was the only viable
candidate for the branch presidency. He re-
sponded, “I wanted to get the best guy, the best
person, and I saying [sic] that generically.”
Vance argues that this “Freudian slip” on the
stand evinced Davis’s desire to hire a male.
Union Planters argues that Davis’s remark was
merely a slip of the tongue.4
The comment is susceptible to either
construction. In title VII trials, though, the
employer is rarely going to concede
unambiguously that it intended to violate the
law.5 Because we lack the jury’s opportunity
to observe Davis’s demeanor and hear his
voice, and because the statement corroborated
Davis’s comments that he wanted to hire a
“mature man,” or a 40- to 50-year-old man,
there was sufficient material direct evidence of
discrimination to allow a reasonable jury to de-
cide in Vance’s favor.
This direct evidence is supported by
material circumstantial evidence.6 For
example, Davis never spoke with Pete Boone,
Carroll’s former boss at Grenada Sunburst
Bank, about Carroll’s qualifications. Boone
testified that had Davis contacted him, he
would have told him that Carroll should not
even be considered for the job. Davis testified
that he called Boone but that his calls went
unreturned. Boone’s testimony contradicted
this.
The jury was entitled to believe Boone’s ac-
count and conclude that Davis was less than
diligent in seeking information about Carroll’s
qualifications. Davis’s testimony concerning
the recommendation he sought from Brown,
3 See id. at 329 n.10 (holding that “[t]he fact that
Portis’ case-in-chief consists solely of her own
testimony does not prevent her from establishing
intentional discrimination”).
4 Union Planters appears to advocate an
extension of the “stray remark” caselaw to cover
witnesses’ statements at trial. It presented no
instance in which a court has ever applied its “stray
remark” jurisprudence to a witness’s trial testimony.
Indeed, there are at least three reasons why it would
be unwise to do so in this manner. First, the “stray
remark” jurisprudence is itself inconsistent with the
deference appellate courts traditionally allow juries
regarding their view of the evidence presented and
so should be narrowly cabined. Second, one of the
questions at issue in the Krystek testSSwhether the
remark is proximate in time to the employment
decisionSS would always be answered in the
negative with respect to testimony at trial, even
though words from the dock seem particularly
probative of actual state of mine.
Third, in-court testimony, unlike a stray remark
made in the workplace, allows the jury to evaluate
the context of the remark based on its observations
of the witness’s demeanor. We decline, therefore, to
extend the doctrine in this manner.
5 Cf. Aikens, 460 U.S. at 716 (noting that
“[t]here will seldom be ‘eyewitness’ testimony
as to the employer’s mental processes”).
6 Citing Haas v. Advo Systems, Inc., 168 F.3d
732, 734 n.2 (5th Cir. 1999), Union Planters seems
to think that to prevail, Vance must provide direct
evidence of discrimination. This would be untrue
even if Vance had not provided such direct
evidence. See, e.g. Scott v. University of Miss.,
148 F.3d 493, 504 (5th Cir. 1998) (holding that
“[b]ecause direct evidence is rare in discrimination
cases, a plaintiff must ordinarily use circumstantial
evidence to satisfy her burden of persuasion”).

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Vance’s immediate supervisor, supports this
claim.
Brown knew both Vance and Carroll quite
well. Nevertheless, after Davis received
Brown’s “glowing” recommendation in support
of Vance’s receiving the job, Davis did not
bother to discuss Carroll’s qualifications with
Brown until after Carroll was hired. At that
time, Brown told Davis that Carroll was “lazy,”
“not challenged,” and that Davis would have to
“light a fire under Carroll’s ass” to ensure that
he would perform his job.
Carroll’s personnel file also indicated that he
had a tendency to procrastinate and miss
deadlines, but Davis never asked to see that file.
The jury was entitled to infer from Davis’s
lackadaisical investigation of Carroll’s
qualifications and premature hiring of Carroll
that he was predisposed to select a man.
There also was uncontradicted evidence that
Davis offered the presidency to Ed Neelly and
Butch Collums, two men who never applied for
the position. The parties dispute whether Davis
also offered the job to Hardy Farris. The jury
could reasonably infer from these actions that
Davis was predisposed to hire a man and began
grasping at straws when it appeared that Vance
was the only viable applicant. In sum, sufficient
evidence supports the finding that Union
Planters discriminated against Vance on the
basis of sex.
Sufficient evidence also supports the jury’s
decision that pretext motivated Union
Planters’s justifications for hiring Carroll over
Vance. Union Planters argues that
administrative concerns were determinative in
the decision. To prevail, Union Planters must
provide direct or circumstantial evidence to
rebut that explanation for its employment
decision. See Rutherford, 197 F.3d at 184.
The jury heard credible evidence that
Vance’s administrative skills were at least as
strong as Carroll’s. The uncontradicted
evidence was that the branch Vance had
helped start and later led had experienced
dramatic increases in both size and profits.
Vance testified that she dedicated thirty
percent of her work time to administrative
matters. The jury could infer from the
branch’s success that Vance’s administrative
skills were excellent.
On the other hand, Carroll was available to
fill the branch presidency because he had been
demoted from his administrative position at the
Sunburst bank. The jury could infer from this
that Carroll’s administrative skills did not mo-
tivate Davis to hire him.
Davis admitted that he thought Vance
worked longer hours than did Carroll. The
jury could infer that someone who would put
more time into the complex task of merging
two bank branches would be a better
administrator. Some evidence did suggest that
Carroll’s administrative skills were superior to
Vance’s, but the evidence did not, by its
strength, disallow supported inferences in
Vance’s favor.
IV.
Union Planters claims this case is
“controlled” by Scott, in which a would-be
professor of legal writing sued after failing to
be named to the post, claiming age dis-
crimination. She propounded but failed to es-
tablish the argument that she was plainly better
qualified than the selected individual, who was
younger than the age-protected class of which
she was a part; beyond this argument, she had
no evidence, direct or circumstantial, of age

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discrimination. Id. at 497-98. In overturning
the verdict in favor of Scott, we held that “an
employee’s subjective belief of discrimination,
however genuine, cannot be the basis of judicial
relief.” Id. at 507 (citations omitted).
Similarly, in Travis, we overturned a verdict
because the only evidence that a hiring decision
was motivated by sex bias was a comment,
made seven years prior to the relevant
promotion decision by a supervisor who had in
the intervening years retired and thus played no
role in the complained of failure to promote,
that the plaintiff was not “tough enough” to fill
a certain position. See Travis, 122 F.3d at 264.
As the court noted, this comment was a “stray
remark” in that it was made by a supervisor
other than the one who made the relevant
employment decision; it was made remotely
from the time of that decision; and it did not
obviously call into question the issue of sex.
Id. See also Krystek, 164 F.3d at 254, 256
(same).
These cases do not control. Vance provided
both direct, non-stray-comment evidence that
she had been discriminated against because of
her sex and circumstantial evidence that
indicated that she was the only woman
president involved in the consolidation and the
only president not provided a place in the new
organization, though a place existed for her.
This evidence does not, but need not, establish
that Vance was “clearly better qualified.” Rath-
er, her circumstantial evidence, with the direct
evidence (including a comment by the relevant
supervisor) that her supervisor wanted to hire
males provides sufficient evidence that she was
discriminated against because of sex.
Union Planters also argues that the jury
erred in awarding Vance damages for emotional
distress. Union Planters attempts to undermine
Vance’s expert medical testimony by asserting
that because neither Neelly nor Carroll
suffered psychological trauma when they lost
their jobs, no reasonable fact finder could have
concluded that Vance suffered such an injury.
As Union Planters so colorfully notes,
“[b]ankers lending the money of others should
be more resilient.” We have discovered, how-
ever, no caselaw supporting a “banker’s
exception” to the rule that plaintiffs who suffer
emotional distress can recover damages.
V.
Union Planters contends that the district
court erred in admitting evidence that Union
Planters suffered an adverse verdict against it
in a 1990 pay discrimination case. We note
initially that we evaluate the jury’s findings
without regard to this testimony and conclude
that, even in exclusion of this exchange, the
evidence supports the verdict.
The relevant evidence is as follows:
Q. And in the past, you haveSSyou
have been found to discriminate
against women, women loan
officers in their pay as against male
officers; haven’t you, sir?
A. Yes, sir.
Q. All right, sir.
A. 1990, I think it was. I cannot recall
the exact date.
Union Planters raises two issues with respect
to this colloquy. The first, that the admission
of this evidence constitutes a bill of attainder,
is frivolous. A bill of attainder is, as the name
implies, a legislative action rather than a
judicial one. See SBC Communications, Inc.

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v. FCC, 154 F.3d 226, 233 (5th Cir. 1998),
cert. denied, 525 U.S. 1113, and cert. denied,
525 U.S. 1113 (1999).
Union Planters’s second argumentSSthat
admission of the evidence violates FED. R.
EVID. 404(b)7SSis more substantive. Vance in-
troduced the evidence to show how Union
Planters treated the class of women employees.
In the context of a title VII suit alleging racial
discrimination, evidence concerning an
employer’s “general policy and practice with
respect to minority employment” “may be
relevant to any showing of pretext.” McDon-
nell Douglas Corp. v. Green, 411 U.S. 792,
804-05 (1973). Similarly, evidence that Union
Planters had been found to have discriminated
against women in the past could help undermine
its argument that it chose not to hire Vance
only because of administrative concerns.8
In EEOC v. General Dynamics Corp.,
99 F.2d 113, 119 (5th Cir. 1993), we affirmed
the admission of “arguably not relevant”
evidence that the plaintiff had filed prior
discrimination lawsuits against his employers.
Despite the danger that such evidence could
cause a jury to believe that the plaintiff was
unreasonably litigious, we held that such
evidence was appropriate, because the plaintiff
had testified that he had prevailed in a previous
discrimination lawsuit.
Union Planters called Yolaine Couser, a fe-
male bank officer, who testified that she had
not been discriminated against and that she had
never observed discrimination against women
in her time at the bank. Davis also testified
that he had hired a female to serve as Union
Planters’s anti-discrimination compliance offi-
cer. Because Vance is the party who first
raised the pattern-of-discrimination issue, Gen-
eral Dynamics is merely instructive, not
controlling. When a party has an opportunity
to explore admitted evidence of prior acts
“through examination of its own witnesses”
and exercises that opportunity, the admission
of potentially damaging evidence is not
reversible error. See Bradbury v. Phillips
Petroleum Co., 815 F.2d 1356, 1365 (10th
Cir. 1987).
Relatedly, Union Planters makes no
showing that the admission prejudiced it. It
presented testimony from a female officer
stating that in the years she worked for the
bank, she had never seen discrimination
against women. The jury might well have
assigned more weight to this evidence about
7 That rule reads in pertinent part:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show action in conformity
therewith. It may, however, be admissible
for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowl-
edge, identity, or absence of mistake or
accident.
8 See also McCorstin v. United States Steel
Corp., 621 F.2d 749, 754 (5th Cir. 1980) (holding
that evidence of a pattern of terminating older work-
ers allowed a reasonable inference that plaintiff had
been discharged on account of age); Dosier v.
Miami Valley Broad. Corp., 656 F.2d
1295, 1300 (9th Cir. 1981) (“Dosier claims that the
post-settlement incidents were part of a continuing
pattern of discrimination. . . . [H]e is not prevented
from using those incidents as evidence of a
continuing pattern of discrimination by Miami
(continued...)
(...continued)
Valley. Evidence of prior acts may clearly be used
to establish the existence of a pattern or scheme.
See Rule 404(b), Federal Rules of Evidence.”).

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the firm’s current practices than to Davis’s brief
admission that his firm had discriminated on
one occasion in 1990. For these reasons, we
see no abuse of discretion in the decision to
admit the evidence in question.
VI.
Title VII limits damage awards based on the
number of employees the employer had during
the “current or preceding calendar year.” 42
U.S.C. § 1981a(b)(3). If, as the district court
held, Union Planters had more than 500
employees, its potential liability is $300,000. If,
as Union Planters argues, it employed only
approximately 140 people, its liability is only
$100,000. These limitations on damages look
to the number employed “in each of 20 or more
calendar weeks in the current or preceding
calendar year.” Id.
A.
We must decide the meaning of “current or
preceding calendar year.” The district court
held that it refers to the year of judgment; it is
undisputed that at the time of judgment, Union
Planters had more than 500 employees.
Union Planters correctly contends that
“current year” refers to the year in which the
discriminatory acts took place. We have inter-
preted “current year” to refer to the year in
which the alleged discrimination occurred.
See Dumas v. Town of Mount Vernon, 612 F.2d
974, 979 n.4 (5th Cir. 1980).
The district court emphasized that the “cur-
rent year” language interpreted in Dumas was
from a different part of title VII, and stated that
no court has interpreted the “current year”
language of § 1981a(b)(3). The latter assertion
is incorrect. In Hennessy v. Penril Datacomm
Networks, Inc., 69 F.3d 1344, 1348, 1354 (7th
Cir. 1995), the court limited the damages
assessed against a defendant based on the
number of employees working for it at the
time of the discriminatory firing. The district
court’s interpretation of “current year” was
rejected also in Komorowski v. Townline Mini-
Mart & Restaurant, 162 F.3d 962, 965 (7th
Cir. 1998). There is no reason to define “cur-
rent year” to mean one thing in one part of
title VII and something else in another.9
Sound policy analysis supports this reading
of the statute. The best reason to use the
“year of occurrence” is that any other
interpretation allows parties to engage in
gamesmanship by structuring companies, or
timing the progress of lawsuits, to maximize
gain or to minimize loss.
An additional reason is that we presume
that part of the reason for the liability cap for
smaller corporations is that such entities can-
not afford to hire the specially trained human-
resource personnel required to negotiate the
shoals of modern employment law. These
businesses are therefore provided some
additional level of protection. Larger
companies, better equipped to hire the relative
expertise, are held to a more rigorous
standard. This purpose would be defeated if
the size of the company were measured at the
date of verdict rather than the date of
commission of the suspect act.
9 See Department of Revenue of Ore. v. ACF
Indus., 510 U.S. 332, 342 (1994) (noting the
“normal rule of statutory construction that identical
words used in different parts of the same act are
intended to have the same meaning”) (internal
quotation marks omitted).

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B.
The district court held that even if 1995
were the “current year,” Union Planters would
have had more than 500 employees:
Furthermore, even if the court were to
use the time of the discriminatory act as
the current year for the purposes of the
statutory cap, the court would still find
that the defendant had more than 500
employees. Union Planters Bank of
Nort heast Mississippi, which the
defendant asserts had no more than 140
employees, did not even exist as of the
date of the discriminatory act. The
decision-maker, Pat Davis, was the
president of First National Bank. The
entity to be formed, Union Planters Bank
of Northeast Mississippi, consisted of
banks belonging to three different
subsidiaries of Union Planters
Corporation (specifically First National
Bank, Sunburst Bank, and United
Southern Bank). There was no single
subsidiary which could realistically be
considered the employer for purposes of
the statutory cap. The allegedly
discriminatory act was done on behalf of
a large corporation by an agent of a large
corporati on, with well over 500
employees. Accordingly, regardless of
how the term “current or preceding year”
is applied, the statutory limit on damages
should be set at $300,000.00.
In 1995, Pat Davis ran First National Bank
and was charged with merging banks belonging
to subsidiaries of First National Bank, Sunburst
Bank, and United Southern Bank. The product
of that merger, Union Planters Bank of
Northeast Mississippi, did not exist at the time
of the employment action but did come into
existence a few months thereafter, in July
1995. The period from then to December 31,
1995, is more than twenty weeks, so even
though Union Planters Bank of Northeast
Mississippi did not exist at the time of the dis-
criminatory act, it could qualify as Vance’s
would-be employer under title VII. If it were
the relevant employer, then the applicable cap
on damages would be $100,000.
By denying Vance’s post-verdict motion for
discovery regarding Union Planters’s size, the
district court failed to develop the record with
regard to several important facts. First, the
court’s analysis, which held Union Planters
Corporation (the holding company that owned
Union Planters Bank of Northeast Mississippi)
to be the relevant employer, seems inconsistent
with the order dismissing Union Planters Cor-
poration as a defendant. Second, the court
failed to engage in the searching inquiry called
for by Trevino v. Celanese Corp., 701 F.2d
397 (5th Cir. 1983), which is this circuit’s
leading precedent on the size of an employer
for title VII liability purposes.
Under Trevino, the court must determine
whether nominally independent entitiesSSFirst
National Bank, Sunburst Bank, and United
Southern BankSSare a single employer for
purposes of title VII liability. If so, their total
employment should be aggregated.
Third, the record does not reveal who
would have been Vance’s employer before
July 1995, had she been offered the job.
Looking to who employed Carroll between
March 15, 1995, and July 1, 1995, might
answer this question. The trier of fact would
need to determine how many employees that
firm employed in 1995 and 1994.

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11
Any of these factors could affect the
limitation on damages. Because the record is
insufficiently developed for us to engage in that
analysis, we remand for such a determination.
We therefore AFFIRM the judgment except
with regard to the interpretation of § 1981a-
(b)(3), VACATE that portion of the judgment,
and REMAND for further proceedings.

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