Salinas v. O'Neill

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-40495
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ROMEO SALINAS,
Plaintiff-Appellee,
VERSUS
PAUL O’NEILL,
SECRETARY, DEPARTMENT OF THE TREASURY,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
April 9, 2002
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 selec-
* District Judge of the Southern District of
Texas, sitting by designation.

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2
tion register for those spots. Three of the ap-
plicants 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 retalia-
tion for previous filings with the Equal Em-
ployment 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 evi-
dence to support $300,000 for emotional and
mental suffering. The government
characterizes the evidence supporting the
award as “perfunctory, non-specific, 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 plaint iff may be en-
titled 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
1 42 U.S.C. § 2000e-2; 29 U.S.C. § 621; 42
U.S.C. § 2000e-3(a).
2 See also Carey v. Piphus, 435 U.S. 247, 264
n.20 (1978) (stating that “an award of damages
must be supported by competent evidence”); Brady
v. Fort Bend County, 145 F.3d 691, 719 (5th Cir.
1998) (noting the importance of detailed, non-
conclusional statements).
3 The award of $1 million is irrelevant to our
final result; our review of the excessiveness of an
award takes as its reference the capped amount,
here $300,000. “When deciding whether a jury
award is excessive, we consider the amount of the
award after application of the statutory cap, not the
amount given by the jury. Giles, 245 F.3d at 487
(citing Vadie v. Miss. State Univ., 218 F.3d 365,
375-76 (5th Cir. 2000), cert. denied, 531 U.S.
1113, and cert. denied, 531 U.S. 1150 (2001)).
In other words, we treat the verdict as though
the jury had awarded $300,000, and we ask wheth-
er that award is “clearly excessive.” Id. at 488.
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We review denial of remittitur for abuse of
discretion. Eiland v. Westinghouse Elec.
Corp., 58 F.3d 176, 183 (5th Cir. 1995); Es-
posito v. Davis, 47 F.3d 164, 167 (5th Cir.
1995). We set aside a decision to deny re-
mittitur 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 lim-
ited to cases in the “relevant jurisdiction.”
Douglass v. Delta Airlines, 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
3(...continued)
As a result of the legislative imposition of a cap,
disparate jury awards are treated the same: Any
award of $300,000 or more is dealt with as though
the jury had, in fact, given only $300,000, and we
give no deference to the fact that the jury decided
on more.
4 See Calderera v. E. Airlines, Inc., 705 F.2d
778, 784 (5th Cir. 1983) (listing numerous
formulations of our great deference to such
awards).
5 The government points out that Giles was the
first case in which we used the maximum recovery
rule in a discrimination case. The government
argues this rule is inconsistent with the “make-
whole” goal of that body of law, and thus we
should reconsider the applicability of the rule in
(continued...)
5(...continued)
this context. We disagree.
First, there is nothing magical about the
percentage enhancement. Whether the maximum
recovery rule is applied by calculating the most a
jury could have awarded without requiring a new
trial or by fixing the amount the appeals court
thinks reasonable and then tacking on a percentage
bonus to avoid supplanting the judgment of the
jury, the effect is the same. In neither case is the
court awarding more than the jury thought proper
to make the plaintiff whole. The maximum
recovery rule merely strives to prevent appellate
courts from replacing what a jury thought would
make a plaintiff whole (after imposing the statutory
cap, see supra note 3) with what the court thinks
would do so.
6 Giles, 245 F.3d at 489 (50% multiplier);
Dixon, 754 F.2d at 590 (same); Calderera, 705
F.2d at 784 (same). But see Lebron v. United
States, 279 F.3d 321 (5th Cir. 2002) (applying
33% enhancement); Marcel v. Placid Oil, 11 F.3d
563 (5th Cir. 1994) (same); Douglass v. Delta Air-
lines, Inc., 897 F.2d 1336 (5th Cir. 1990) (same);
Haley v. Pan Am. World Airways, Inc., 746 F.2d
311 (5th Cir. 1984) (same). Although all of the
cases using a 50% enhancement involved jury
trials, those applying a 33% multiplier are split.
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4
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. Trad-
er 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 smok-
ing.” Id. We upheld the award, noting that
even the lone testimony of the plaintiff may
support an award o f emotional damages. Id.
Most recently, we had occasion to consider
the sufficiency of evidence supporting an emo-
tional 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
6(...continued)
Lebron and Douglass were bench trials, while
Marcel and Haley were jury trials.
Faced with this impasse between competing
multipliers, we choose the 50% figure. The ap-
parent origins of the two multipliers are Calderera
and Haley. Calderera predates Haley and thus
controls under our circuit’s rule of orderliness.
Teague v. City of Flower Mound, Tex., 179 F.3d
377, 383 (5th Cir. 1999).
7 One panel of this court may have awarded
more than $100,000 for emotional injury stemming
from illegal discrimination. In Polanco v. City of
Austin, Tex., 78 F.3d 968 (5th Cir. 1996), the
plaintiff initially was awarded $150,000 for
emotional injury. The district court remitted the
compensatory award of $350,000 to $290,000. As
a matter of percentage, this would mean the
$150,000 was reduced to $124,285.
We decline to use this award as a basis for
deciding what a jury “could award.” Not only is
the basis of the district court’s remittitur unknown,
but the panel did not discuss the propriety of the
emotional injury component of the total award.
Furthermore, the 150% rule we use here helps
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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 lev-
el 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 spe-
cifics.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 in-
curred 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 lawSSoffer 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 un-
der title VII. Vadie, 218 F.3d at 367. The
discrimination claim was reversed on appeal,
7(...continued)
correct any potential unfairness to the plaintiff
from this reading of precedent.
8 The government tries to avoid the impact of
this detailed testimony of emotional harm by
linking it to an incident earlier in Salinas’s career
in which he witnessed the death of a fellow customs
agent and his family in a work-related traffic
accident. The jury, by awarding emotional
damages in the amount of $1 million (which we
deem to be $300,000, see supra note 3), obviously
believed Salinas’s injury was traceable to the
actions of the government and not to the accident.
Where a jury chooses to believe two equally
plausible stories, our review is foreclosed. Wilson
v. Monarch Paper Co., 939 F.2d 1138, 1146 (5th
Cir. 1991).
9 See, e.g., Price v. City of Charlotte, N.C., 93
F.3d 1241 (4th Cir. 1996) (reviewing cases and
concluding awards may be proper when supported
by testimony of specific harm that is capable of ar-
ticulation, even if sole testimony is that of the
plaintiff).

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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 de-
scription of the emotional harm he had
suffered, noting the effect it had on his job and
on his relationship with his wife and son. He
mentioned particular manifestations of his
emotional harm in health problems leading to
numerous visits to a physician. He described
in detail the specifics of his paranoiaSSthat it
caused him to buy an alarm for his house and
reduced him to a constant state of fear, always
looking over his shoulder and not even
allowing his wife to get the mail by herself.
All of this was corroborated by his wife.
The testimony of medical problems was con-
firmed by a $16,000 award of medical expens-
es. In sum, Salinas has offered far more than
did the Vadie plaintiff to substantiate his
emotional injury.
Nevertheless, Salinas has not presented
enough evidence to support an award of
$300,000; a comparison with other emotional
damage awards in this circuit stemming from
discrimination points to $100,000 as the prop-
er award. In keeping with our duty to avoid
substituting our opinion for that of the jury, we
multiply this amount by 150%. Giles, 245
F.3d at 489. Anything more would be “clearly
excessive.” Eiland, 58 F.3d at 183.
We stress that this amount is neither the
minimum nor the maximum for emotional
damage claims in discrimination claims. Nor is
this amount a floor or ceiling for such claims
supported by the testimony of a plaintiff and
spouse. All this figure represents is the last
dollar amount Salinas can be awarded based
on the evidence he presented for the damages
he has suffered before that amount would be
excessive as a matter of law. We remit the
compensatory damage portion of Salinas’s
award to $150,000 unless he elects a new trial
on damages. Id.
VACATED and REMANDED.
Judge DeMOSS concurs in the judgment
only.
10 In full, the question and answer were:
Q. All right. Dr. Vadie, let me ask you this:
When you did not get this job as a professor
i n t h e C h e m i c a l E n g i n e e r i n g
DepartmentSSyou were saying you love
Mississippi State UniversitySShow did it
affect you or how did it make you feel so far
as your worrying and anxiety over that was
concerned? Describe that for the jury.
A. . . . It destroyed me. It totally ruined me,
and I become sick, totally ill, physically,
mentally, and everything. I took many
doctors, many pills.
I did not know what to do, where to go,
what to say. I did not know whether it was
nighttime or daytime. I could not sleep for
months at a time. Headache, nausea. Still
I am under severe doctor surveillance
because of what they have done to me . . . .
Vadie, 218 F.3d at 377.

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