Thomas v. TX Dept Cr Justice

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-20247
_______________
BEVERLY THOMAS,
Plaintiff-Appellee,
VERSUS
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
July 1, 2002
Before REAVLEY, SMITH, and DENNIS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Beverly Thomas sued the Texas Depart-
ment of Criminal Justice (“TDCJ”), claiming it
had denied her a pro motion and housing be-
cause 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 (“Thom-
as I”), 220 F.3d 389 (5th Cir. 2000). The ver-
dict 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

-- 1 of 20 --

2
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 dis-
tress 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 ex-
cessive 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 pro-
moted her to sergeant. In 1992, she trans-
ferred 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, be-
cause the TDCJ benefits policy permits lieu-
tenants to live rent free in state-owned hous-
ing.
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 in-
formed her that because she was single and
had no children, her chances of receiving hous-
ing 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 promo-
tion; 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, al-
leging discrimination in the denial of housing
and of the promotion. The district court per-
mitted her to amend the complaint to add alle-
gations of racial discrimination to her charge
of sex discrimination regarding the housing de-
nial. 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 attor-
neys’ fees. The court also issued entered an
injunction that forbade TDCJ from further dis-
crimination 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 dis-
trict court had abused its discretion by permit-
ting Thomas to amend her pretrial order to add

-- 2 of 20 --

3
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 consti-
tuted an abuse of discretion, because the jury
should not have been able to consider race
discrimination. Id.
We reversed the district court only for per-
mitting 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 be-
tween the housing and promotion claims. On
remand, the court had to consider the merits of
the housing claim and the damages owed un-
der 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 previ-
ous 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 im-
permissibly led the jury to award damages for
the failure to promote and retaliation as inde-
pendent 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 guid-
ed 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 fail-
ure to promote and ret aliation.1 TDCJ cor
1 The court instructed,
Second, what damages, if any flow from the
(continued...)

-- 3 of 20 --

4
rectly argues that a jury can award
compensatory damages only for adverse
employment actions. Mattern v. Eastern
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. Thompkins 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 con-
dition, 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
actionsSSthe “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 is-
sue. Thomas applied for a program ad-
ministrator post and an administrative tech-
nician 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 cor-
rectly 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 1(...continued)
conduct of the TDCJ for its conduct in
failing to promote Ms. Thomas in 1996
based on her sex or race and retaliating
against her.
. . .
Because another jury has found that the
TDCJ failed to promote Ms. Thomas to
Captain and retaliated against her, you must
determine the amount of damages, if any, to
which she is entitled.
Moreover, in one of its interrogatories, the court
asked the jury to consider the amount of damages
appropriate for “the TDCJ’s failure to promote
Ms. Thomas to Captain, and retaliation against
her, and TDCJ’s denial of housing to Ms. Thom-
as.”
2 Thomas I, 220 F.3d at 395 n.3 (“The jury was
asked separate interrogatories on the housing,
failure to promote, and retaliation claims. Thus the
error on the submission of race as a part of the
housing claim does not effect [sic] the failure to
promote and retaliation claims.”); id. at 396 (“We
hold that the plaintiff, Beverly Thomas, presented
sufficient evidence to allow a reasonable jury to
conclude that TDCJ engaged in racial and gender
discrimination in its failure to promote Thomas to
Captain, and that TDCJ also engaged in
retaliation.”).
3 Id. at 394 n.2. See id. at 394 (“Thus Thomas
presented evidence for a reasonable juror to con-
clude that TDCJ failed to promote or transfer her
because she engaged in protected activity”).

-- 4 of 20 --

5
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 ex-
cluding front pay. TDCJ argues that the jury
inevitably inferred that it should include front
pay in compensatory damages, despite the ab-
sence of any instruction.
The district court does not have an
obligation to refute every possible,
impermissible inference from the jury
instructions. TDCJ does not cite a single case
holding that an instruction on back pay
requires an instruction on front pay. Reversing
on this basis would make it impossible for the
court to instruct a jury: The court would have
to preempt every possible impermissible
inference.
Instead, we review judgments to ensure
that jurors receive proper instructions on the
acceptable methods and bases of recovery.
The district court gave proper instructions on
the bases for compensatory damages.4
IV.
TDCJ requests that we reverse the denial of
its motions for j.m.l. and new trial on future
emotional distress damages. The jury’s
$30,000 award for past emotional distress fits
within the range of damages that we have es-
tablished, and TDCJ does not appeal that
award. Thomas, however, failed to prove that
the TDCJ’s unlawful actions caused $100,000
in future emotional distress damages. We re-
verse, because our precedent does not support
a $100,000 award based on such insubstantial
injuries. On remand, Thomas may choose be-
tween accepting a remittitur to $75,000 of fu-
ture emotional distress damages or a new trial.
A.
The part ies disagree over whether our re-
view of the denial of j.m.l. should be de novo
or for plain error. TDCJ’s motion for j.m.l. at
the close of all evidence did not include an at-
tack on the evidence’s sufficiency to prove
emotional damages. TDCJ did include such an
argument in its FED. R. CIV. P. 50(b) post-
judgment motion, however, and Thomas did
not argue waiver.
A party who does not raise the waiver bar
when opposing a rule 50(b) motion may not
raise that bar on appeal.5 TDCJ’s motion for
j.m.l. is properly asserted on appeal, and we
apply the de novo standard. Deffenbaugh-
Williams, 188 F.3d at 285.
When reviewing the denial of j.m.l., we
must review the sufficiency of the evidence
4 TDCJ argues briefly that the district court
erred by instructing the jury that it could consider
future emotional distress. As discussed infra, we
believe the court instructed the jury properly, be-
cause it could reasonably award some damages for
future emotional harm. We merely believe that the
amount of those damages was excessive and
unsupported by the evidence.
5 Deffenbaugh-Williams v. Wal-Mart Stores,
Inc., 188 F.3d 278, 284 n.5 (5th Cir. 1999) (“Rule
50(b) motions may not, of course, raise issues not
raised under Rule 50(a); but new grounds may be
considered where, as here, the non-movant does not
object.”) (citations omitted); Thompson & Wallace,
Inc. v. Falconwood Corp., 100 F.3d 429, 435 (5th
Cir. 1996) (“Because the plaintiffs did not raise the
waiver bar in opposing the rule 50(b) motion, they
may not raise that bar on appeal.”) (citations
omitted).

-- 5 of 20 --

6
and consider whether reasonable and fair-
minded people could reach the same
conclusion. Polanco v. City of Austin, Tex.,
78 F.3d 968, 974 (5th Cir. 1996). We “should
review all of the evidence in the record . . .
[but] must draw all reasonable inferences in
favor of the nonmoving party, and [ ] may not
make credibility determinations or weigh
evidence.” Reeves v. Sanderson Plumbing
Prod., Inc., 530 U.S. 133, 150 (2000)
(citations omitted). “Credibili ty
determinations, the weighing of the evidence,
and the drawing of the legitimate inferences
from the facts are jury functions, not those of
a judge.” Id. at 150-51 (quotation and
citations omitted).
We apply a more stringent standardSSabuse
of discretionSSwhen determining whether to
grant a new trial. Whitehead v. Food Max,
Inc., 163 F.3d 265, 269, 270 n.2 (5th Cir.
1998); Baker v. Dillon, 389 F.2d 57, 58 (5th
Cir. 1968). “A trial court should not grant a
new trial on evidentiary grounds unless the
verdict is against the great weight of the evi-
dence.” Pryor v. Trane Co., 138 F.3d 1024,
1026 (5th Cir. 1998) (citation and quotation
omitted). We must affirm denial of a new trial
unless the movant makes a “clear showing” of
an “‘absolute absence of evidence to support
the jury’s verdict,’ thus indicating that the dis-
trict court abused its discretion in refusing to
find the jury’s verdict ‘contrary to the great
weight of the evidence.’” Whitehead, 163
F.3d at 269 (citations omitted).
TDCJ did not request a remittitur in either
the district court or its brief on appeal. We do,
however, have the discretion to convert a mo-
tion for new trial into a remittitur.6 We review
the denial of remittitur for abuse of discretion.
Eiland v. Westinghouse Elec. Corp., 58 F.3d
176, 183 (5th Cir. 1995). We order a remitti-
tur only when “left with the perception that the
verdict is clearly excessive.” Id.
B.
TDCJ’s request for j.m.l. or a new trial
boils down to challenging the sufficiency of
Thomas’s evidence. A plaintiff must present
evidence of an emotional injury’s character
and severity to recover greater than nominal
damages.7 TDCJ argues that Thomas did not
present evidence sufficient to support the
$100,000 award for future emotional harm.
We have shown great deference to jury
damage awards ratified by the district court.
Calderera v. E. Airlines, Inc., 705 F.2d 778,
784 (5th Cir. 1983). Courts have focused on
two necessary elements for the plaintiff to re-
cover emotional distress damages. Giles, 245
F.3d at 488. First, the plaintiff must provide
6 Vadie v. Miss. State Univ., 218 F.3d 365, 378
(continued...)
6(...continued)
(5th Cir. 2000) (“Although we note that MSU did
not ask for remittitur when it sought judgment as a
matter of law or, in the alternative, a new trial after
the jury rendered its verdict, it would have been
within the district court’s discretion to sua sponte
suggest remittitur. This Court has the same
power.”), cert. denied, 531 U.S. 1113, 531 U.S.
1150 (2001); McDonald v. Bennett, 674 F.2d
1080, 1092 (5th Cir.) (explaining that appellate
and district courts have power to order remittitur),
modified on reh’g, 679 F.2d 415 (5th Cir. 1982).
7 Carey v. Piphus, 435 U.S. 247, 264 n.20
(1978) (stating that “an award of damages must be
supported by competent evidence”); Giles v. Gen.
Elec. Co., 245 F.3d 474, 488 (5th Cir. 2001)
(same); Brady v. Fort Bend County, 145 F.3d 691,
719 (5th Cir. 1998) (noting the importance of de-
tailed, nonconclusional statements).

-- 6 of 20 --

7
specific evidence of the nature and extent of
the harm. Id. Second, he must make more
than vague allegations to support his claim.
Id. We prefer corroboration and expert
testimony. Id.
With those two criteria in mind, we review
the awards for emotional distress in similar
cases. Dixon v. Int’l Harvester Co., 754 F.2d
573, 589 (5th Cir. 1989). We limit our
comparison to cases in the “relevant
jurisdiction,” which is the Fifth Circuit.
Douglass v. Delta Airlines, Inc., 897 F.2d
1336, 1339 (5th Cir. 1990).
Out of deference to the jury’s decision, the
“maximum recovery rule” compels us to remit
damages only to the maximum amount the jury
could have awarded. Giles, 245 F.3d at 488-
89. As an extension of the “maximum re-
covery rule,” we usually apply a multiplier, or
percentage enhancement, to past similar
awards. If the verdict falls within the range es-
tablished by previous awards and the
enhancement, we will uphold the decision.8
We have approved six-figure emotional dis-
tress awards in five employment discrimination
and § 1983 cases. In Forsyth v. City of
Dallas, Tex., 91 F.3d 769, 775 (5th Cir.
1996), we upheld an award of $100,000 to an
officer transferred in violation of her First
Amendment rights. We premised the award
on the plaintiff’s testimony describing
“depression, weight loss, intestinal troubles,
and marital problems.” Id. The plaintiff also
testified that she had consulted a psychologist.
Id.
In Rizzo v. Children’s World Learning
Ctrs., Inc., 173 F.3d 254, 262 (5th Cir.),
vacated, 187 F.3d 680 (5th Cir.), aff’d on
other grounds, 213 F.3d 209 (5th Cir. 1999)
(en banc), cert. denied, 531 U.S. 958 (2000),
we approved a $100,000 award under the
Americans with Disabilities Act for past and
future mental anguish. The award was 550
times the size of the lost wages award, but the
panel did not discuss the specifics of Rizzo’s
emotional damages. Id.
In Williams v. Trader Publ’g Co., 218 F.3d
481, 486 (5th Cir. 2000), we upheld a
compensatory damage award of $100,000 for
emotional distress based on the plaintiff’s
descriptions of “severe emotional distress,”
“sleep loss,” “severe loss of weight,” and
“beginning smoking.” We affirmed the award
and noted that the testimony of the plaintiff
alone can support emotional damages. Id.
8 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, 897 F.2d
1336 (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. Lebron and Douglass were
bench trials, while Marcel and Haley were jury
trials.
Faced with this impasse between competing
multipliers, we recently chose the 50% figure.
Salinas v. O’Neill, 286 F.3d 827, 831 n.6 (5th Cir.
(continued...)
8(...continued)
2002). The apparent origins of the two multipliers
are Calderera and Haley. Calderera predates Ha-
ley 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 of 20 --

8
In Giles, 245 F.3d at 488-89, we remitted
an emotional damage award to $100,000
where a coworker testified as to the plaintiff’s
sleeping trouble, headaches, marital
difficulties, and loss of prestige and social
connec tions.9 The coworker testified that the
plaintiff “appeared despondent, depressed,
down, and absolutely utterly discouraged
about not being able to go back to work.” Id.
at 488. Finally, in Salinas, 286 F.3d at 832,
we remitted a jury award from $300,000 to
$100,000, where a customs service agent won
a title VII claim for retaliation.10 The plaintiff
and his wife had testified that the retaliation
caused him to suffer from paranoia, take
excessive sick leave, and visit physicians more
than seventy times. Id. at 832. The emotional
toll had a significant impact on his relationship
with his wife and son. Id.11
In three employment discrimination cases,
we have remitted emotional distress awards to
less than six figures. In Flowers v. S. Reg’l
Physician Servs., Inc., 247 F.3d 229, 236-37
(5th Cir. 2001), we vacated a $100,000 award
for the emotional impact of disability-based
harassment. We emphasized that the plaintiff’s
testimony was uncorroborated, and every
physical and psychological complaint occurred
after the discharge. Id. at 239 & n.8. In
Vadie, 218 F.3d at 375-76, we remitted a title
VII award of $300,000 to $10,000. We
emphasized that the plaintiffs uncorroborated
testimony that he was “destroyed,” “totally ru-
ined,” “totally ill,” and “took many doctors,
many pills” was insufficient to support the
verdict. In Patterson v. P.H.P. Healthcare
Corp., 90 F.3d 927, 940 (5th Cir. 1996), we
remitted $40,000 and $150,000 awards to
nominal damages where a hospital had
discriminated against a nurse and medical
technician. One plaintiff’s uncorroborated
testimony described feelings of frustration, low
self-esteem, anger, and paranoia, id. at 939;
the other testified that her discharge
emotionally scarred her and resulted in
unemployment, id. at 940.
C.
Thomas testified to severe past emotional
distress. She wept while describing the
emotional impact of the missed promotion.
She said that “it hurt, it hurt,” because “[i]t
9 The panel increased the award by 50%
multiplier, yielding a final award of $150,000.
Giles, 245 F.3d at 489.
10 The jury originally awarded $1,000,000, but
the district court correctly remitted the amount to
$300,000 to conform with title VII’s statutory
damage caps. Salinas, 286 F.3d at 829.
11 In Green v. Administrators of Tulane Educ.
Fund, 284 F.3d 642, 660-61 (5th Cir. 2002), we
affirmed a $300,000 title VII award for unspecified
compensatory damages. The decision may have
implicitly affirmed a six-figure award for
emotional distress damages, but the defendants did
not challenge, and we did not consider, the verdict
under our line of cases addressing emotional
distress damages.
Where an opinion fails to address a question
squarely, we will not treat it as binding precedent.
Webster v. Fall, 266 U.S. 507, 511 (1925) (“Ques-
tions which merely lurk in the record, neither
brought to the attention of the court nor ruled upon,
(continued...)
11(...continued)
are not to be considered as having been so decided
as to constitute precedents); Nat’l Cable Television
Ass’n, Inc. v. Am. Cinema Editors, 937 F.2d 1572,
1581 (Fed. Cir. 1991) (“When an issue is not
argued or is ignored in a decision, such decision is
not precedent to be followed in a subsequent case
in which the issue arises.”).

-- 8 of 20 --

9
took everything I had just to sit there and
watch somebody take a job that I had worked
for all my life.” After the promotion denial
and throughout the retaliatory period, Thomas
was tearful, felt like a failure, felt isolated from
her coworkers, and felt helpless to alter her
circumstances. She explained that she could
not sleep and suffered from nausea. Her
depression deepened, and she began dwelling
on death. Her treating physician prescribed an
antidepressant.
Other witnesses corroborated the severity
of Thomas’s past emotional distress. Elroy
Thomas, her older brother, testified that
Thomas became “moody,” “depressed,”
“standoffish,” and isolated during her
employment at the Estelle Unit. Kerney
Hamblen, a co-worker and friend, averred that
Thomas went from being “extremely outgoing
and full of life” to “depressed or in a bad
mood” “at times.” JoAnn Palmer, Thomas’s
older sister, explained that Thomas became
withdrawn, prone to breaking out in tears, and
depressed. The jury concluded that this
evidence of past emotional harm warranted
$30,000 in damages.
By the time of the second trial, however,
TDCJ had transferred Thomas to another unit.
She testified that she currently enjoys her job.
Although she has given up hope of future
promotions, she still derives great pleasure
from helping others at work. She admitted
that she has received favorable evaluations; she
has been named employee of the month. She
has continued to pursue her degree at Sam
Houston University, where she originally be-
gan taking classes to further her career
ambitions.
The evidence pointed to some ongoing and
future emotional distress, but nothing as severe
as what Thomas suffered during the retaliatory
period. She described continued anger and
fears that the lawsuit will bar her from future
promotion. She continues to suffer from a
heart condition, everyday fatigue, and stress.
Elroy Thomas testified that Thomas remains
“shook up, worried, depressed, [and] scared”;
his testimony, however, plainly describes her
emotional distress as less severe than what she
experienced while employed at the Estelle
Unit. Hamblen noted that the housing dispute
and promotion denials had changed Thomas’s
mood, but she admitted that she did not see
Thomas much anymore. Her testimony about
Thomas’s contemporaneous emoti onal
reactions cannot provide much of a basis for
estimating future emotional harm.
Finally, Palmer stated that Thomas still suf-
fers from mood “swings” when “she is very
melancholy” and “just really not her[self]”;
Palmer described these moods as off and on;
she also admits that Thomas’s
contemporaneous emotional distress was much
more severe. Thomas presented enough evi-
dence to justify instructing the jury on future
emotional harm, and her evidence supported
an award. The question whether that evidence
supported a $100,000 award is an entirely
different matter, however.
At a superficial level, past cases and the
maximum recovery rule might point toward af-
firming the jury’s award. Overall, Thomas
presented convincing and substantial evidence
of emotional damages. Thomas presented sub-
stantial evidence of acute, past mental anguish,
and the jury chose to award her $30,000.
The jury, however, awarded over three
times that amount for future emotional harms,
despite substantially weaker evidence. First,
the witnesses testified that Thomas’s

-- 9 of 20 --

10
emotional difficulties have lessened
substantially since her transfer. She enjoys her
current job, and her current supervisors have
commended her performance. Second,
Thomas did not provide evidence tightly
linking the denial of a promotion and future
emotional harm. As one example, the
witnesses tended to discuss the collective
emotional impact of the promotion denials,
transfer refusals, and housing delay. The jury,
however, determined that the TDCJ acted
lawfully when it delayed indefinitely Thomas’s
housing.
The jury should not have included the im-
pact of the housing denial when considering
the emotional impact. The high damage award
suggests that it ignored this distinction. As
another example, Thomas testified about a
heart condition that bothers her to this day.
But she never even stated that she believes that
TDCJ’s actions had lasting effects on her
cardiac health; she certainly does not present
any medical evidence connecting her past job-
related stress to her current physical condition.
On this evidence, a reasonable jury could
not have concluded that Thomas’s future emo-
tional distress will be over three times worse
than the emotional harm she has already suf-
fered. At most, the jury properly could have
awarded only $50,000.12 The maximum re-
covery rule requires us to add 50%, so we re-
mit future emotional distress to $75,000.
Thomas may elect between accepting that
amount or another trial on damages.
V.
TDCJ argues that the district court made
three errors when calculating prejudgment in-
terest. First, TDCJ claims the court
mistakenly computed prejudgment interest
from January 1996 rather than from January
1997. Second, TDCJ argues that courts
should never award prejudgment interest on
emotional damages. Third, TDCJ avers that
courts should not award prejudgment interest
on future damages. We review prejudgment
interest for an abuse of discretion. Sellers v.
Delgado Community College, 839 F.2d 1132,
1140 (5th Cir. 1988). We reverse on the first
and third grounds only.
A.
District courts generally should calculate
interest on back pay and past damages based
on the date of the adverse employment action.
Gloria v. Valley Grain Prods., Inc., 72 F.3d
497, 499 (5th Cir. 1996) (describing general
rule but refusing to reverse for denying
prejudgment interest). The district court
awarded 6% prejudgment interest from
January 1996 forward. The TDCJ first denied
Thomas the promotion in December 1996, and
TDCJ argues that she should have received
prejudgment interest only from January 1,
1997, when she would have received her first
pay check as captain. Thomas agrees that
prejudgment interest should have run from
January 1, 1997. We reverse and remand for
the district court to recalculate prejudgment
interest from that date.
B.
Prejudgment interest should apply to all
past injuries, including past emotional injuries.
Courts should award prejudgment interest 12 We have remitted emotional distress damages
to similar levels, even without the guidance of an
independent award for past mental anguish. Vadie,
218 F.3d at 378 (remitting award from $300,000
to $10,000).

-- 10 of 20 --

11
whenever a certain sum is involved.13 Re-
fusing to award prejudgment interest ignores
the time value of money and fails to make the
plaintiff whole. Batson, 782 F.2d at 1316.
TDCJ argues only that Thomas’s
underlying claims for emotional damage lack
merit. This is puzzling, because TDCJ
conceded that the jury properly awarded
Thomas $30,000 for past emotional harms.
This judicial admission estops TDCJ from now
denying the validity of this award for purposes
of calculating prejudgment interest. TDCJ
does not present a single argument for denying
interest accrued on a meritorious claim.
Because the jury found that the Thomas
suffered past emotional injuries, the district
court was compelled to award prejudgment
interest on those past injuries.
C.
We have, however, refused to award
prejudgment interest on harms that have yet to
occur. This makes good sense, because the
present value of the plaintiff’s future financial
harm is less than either a present or past harm.
We have applied this rule consistently to
awards for front pay and future emotional
harms in the context of federal admiralty and
maritime law.14
In Williamson v. Handy Button Mach. Co.,
817 F.2d 1290 (7th Cir. 1987), Judge Easter-
brook explained the critical role of
discounting, present value, and interest in
determining damages accurately. Federal law
requires courts to add prejudgment interest to
backpay awards under 42 U.S.C. § 1981. Id.
at 1297. Judge Easterbrook explained,
however, that “interest is not available on lost
future wages and pensions,” because “the time
value of money is already taken into account
when these are discounted to present value.”
Id.
Courts must award prejudgment interest
only for past harms. Today we apply that rule
to future emotional harms awarded under title
VII. The district court improperly awarded
prejudgment interest on future harms. On re-
mand, the court should not add prejudgment
interest to either the $75,000 in future
emotional harms or any damages for future
emotional harms awarded by a new jury.
VI.
13 United States v. Batson, 782 F.2d 1307,
1316 (5th Cir. 1986) (reversing district court for
failing to award prejudgment interest). See Pegues
v. Miss. State Employment Serv., 899 F.2d 1449,
1458 (5th Cir. 1990) (affirming prejudgment inter-
est in title VII backpay award).
14 Jacobs v. N. King Shipping Co., Ltd., 180
F.3d 713, 720 (5th Cir. 1999) (reversing district
court for awarding prejudgment interest on future
loss of support award under the Death on the High
Seas Act); Couch v. Cro-Marine Transp., Inc., 44
(continued...)
14(...continued)
F.3d 319, 328 (5th Cir. 1995) (reversing interest
award on future pain and suffering under federal
maritime law because “[p]rejudgment interest [ ]
may not be awarded with respect to future
damages”) (citations omitted); Boyle v. Pool
Offshore Co., 893 F.2d 713, 719 (5th Cir. 1990)
(vacating district court order awarding
prejudgment interest for general pain and suffering
because court should have distinguished between
past and future so that it could accurately allocate
interest); Verdin v. C&B Boat Co., 860 F.2d 150,
158 (5th Cir. 1988) (“We have held on numerous
occasions that awards of prejudgment interest on
future damages are not available, for the common-
sense reason that those damages compensate future
harm, for which no interest could possibly have
accrued before trial.”).

-- 11 of 20 --

12
Because we vacate the damages for
emotional distress, we also vacate and remand
the attorneys’ fees award; the plaintiff’s level
of success can critically influence the proper
amount of fees.15 The judgment is
AFFIRMED IN PART, REVERSED IN
PART, and REMANDED for further pro-
ceedings consistent with this opinion.
15Giles, 245 F.3d at 491; Williams, 218 F.3d at
488 (vacating and remanding attorneys’ fees when
reversal of punitive damages reduced total
judgment by 40 percent); Bunch v. Bullard, 795
F.2d 384, 399-400 (5th Cir. 1986) (vacating and
remanding so district court could consider
increasing fees because court of appeals had
reinstated many claims that failed before the
district court).

-- 12 of 20 --

16 Eiland v. Westinghouse Elec. Corp., 58 F.3d 176, 183 (5th Cir. 1995). 1
DENNIS, Circuit Judge, specially concurring.
I disagree with the majority opinion insofar as it reviews the excessiveness of Ms. Thomas’s award
by comparison to amounts awarded in prior cases. This practice is highly suspect and contrary to
controlling law in this circuit. Although judgments in comparable cases may provide some frame of
reference when reviewing awards for excessiveness, they do not control our assessment of an
individual case. The proper focus of our inquiry is whether, based on the facts in the record, the
award is entirely disproportionate to the injury sustained, not whether the award is greater or smaller
than awards granted by previous juries. Because I agree, however, that $50,000 is the most that a
jury could have properly awarded for future emotional distress damages in this case, I concur in the
judgment.
I.
When reviewing jury awards for excessiveness, we give great deference to the jury and trial judge.
We review a denial of remittitur for abuse of discretion, and we order remittitur only when “the
verdict is clearly excessive.”16 As Judge Rubin expressed in Caldarera v. Eastern Airlines, Inc., an
award is “clearly excessive” only under extraordinary circumstances:
We do not reverse a jury verdict for excessiveness except on “the strongest of showings.” The
jury’s award is not to be disturbed unless it is entirely disproportionate to the injury sustained.
We have expressed the extent of distortion that warrants intervention by requiring such awards
to be so large as to “shock the judicial conscience,” “so gross or inordinately large as to be
contrary to right reason,” so exaggerated as to indicate “bias, passion, prejudice, corruption,
or other improper motive,” or as “clearly exceed[ing] that amount that any reasonable man

-- 13 of 20 --

17 705 F.2d 778, 784 (5th Cir. 1983). 1
18 Caldarera v. E. Airlines, Inc., 705 F.2d 778, 784 (5th Cir. 1983) (internal citations omitted). 1
19 Wakefield v. United States, 765 F.2d 55, 59 (5th Cir. 1985). 1
20 Johnson v. Offshore Express, Inc., 845 F.2d 1347, 1356 (5th Cir. 1988); accord Hernandez v. M/V 1
Rajaan, 841 F.2d 582, 587 (5th Cir. 1988) (“An appellate court may not determine excessiveness by comparing 2
verdicts in similar cases, but rather must review each case on its own facts.”); Winbourne v. E. Airlines, Inc., 3
785 F.2d 1016, 1035 (5th Cir. 1984) (“We cannot judge the justification of damages by mere comparison with 4
the awards upheld or reversed in other cases. Each case presents its own facts.”); Sosa v. M/V Lago Izabal, 5
736 F.2d 1028, 1035 (5th Cir. 1984) (“[W]e do not determine excessiveness by comparing verdicts rendered 6
in different cases; each case must be determined on its own facts.”); Allen v. Seacoast Prods., Inc., 623 F.2d 7
355, 365 (5th Cir. 1980) (quoting Fruit Indus., Inc. v. Petty, 268 F.2d 391, 395 (5th Cir. 1959)); Wiley v. 8
Stensaker Schiffahrtsges, 557 F.2d 1168, 1172 (5th Cir. 1977) (quoting Petty, 268 F.2d at 395). 9
21 Petty, 268 F.2d at 395. 1
14
could feel the claimant is entitled to.”17
Thus, although this review is necessarily subjective,18 we do not order remittitur every time we
perceive a jury award t o be overly generous; rather, remittitur is justified only when the award
exceeds that bounds of reason under the facts of the case.19
The focus of our clear excessiveness inquiry is on the facts of the case on appeal, not on the
average recovery granted in like cases. A long line of precedent in this circuit establishes that “we
do not determine excessiveness of damage awards by comparing verdicts in similar cases, but rather
we review each case on its own facts.”20 As early as 1959, in Fruit Industries, Inc. v. Petty, we stated
that “[c]omparison of verdicts rendered in different cases is not a satisfactory method for determining
excessiveness vel non in a particular case and . . . each case must be determined on its own facts.”21
Although we have acknowledged a limited role for comparing awards in similar cases to gauge the
excessiveness of a given award, such comparisons serve only as a point of reference and are in no way

-- 14 of 20 --

22 Wheat v. United States, 860 F.2d 1256, 1259-60 (5th Cir. 1989) (“[D]amage awards in analagous [sic] 1
cases provide an objective frame of reference, but they do not control our assessment of individual 2
circumstances.”); Wakefield, 765 F.2d at 59-60 (“[W]hile comparison with other awards might serve as a point 3
of reference, such comparison is not controlling.”); see also In re Air Crash Disaster Near New Orleans, 767 4
F.2d 1151, 1160 (5th Cir. 1985) (Tate, J., dissenting) (“Essentially, it is only after an appellate court 5
determines that an award is excessive under federal standards of appellate review, that utilization of past 6
awards may become relevant in determining the amount to which a jury award should be reduced . . . .”). 7
23 See Salinas v. O’Neill, 286 F.3d 827, 830 (5th Cir. 2002). 1
24 Id. 1
25 754 F.2d 573 (5th Cir. 1985). 1
15
controlling.22
Despit e the well-established and limited role for case comparisons in this circuit, the majority
opinion moves comparability to the forefront of our excessiveness inquiry. According to the majority,
an award is upheld if it falls within the range of acceptable awards established by prior cases; only
after this acceptable award-range is established does the majority consider the facts supporting Ms.
Thomas’s award.
The majority opinion is not the first case from this circuit to deviate from our comparability case
law; at least one other case from this circuit has employed the same faulty analysis.23 This year, in
Salinas v. O’Neill, a panel of this court stated that “[a] mainstay of the excessiveness determination
is comparison to awards for similar injuries.”24 To support this statement, the Salinas court relied on
Dixon v. International Harvester Co.,25 the same 1985 opinion that the majority uses to justify its
comparability analysis in the present case. But Dixon plainly does not state that case comparisons
are the “mainstay” of our excessiveness review; rather, it states that “prior awards may be of some
aid when the present award is shown to be great ly disproportionate to past awards for similar

-- 15 of 20 --

26 Id. at 589 (emphasis added). 1
27 746 F.2d 311 (5th Cir. 1984). 1
28 Id. at 318 (quoting Reck v. Stevens, 373 So. 2d 498, 500-01 (La. 1979)) (internal citations omitted). 1
16
injuries.”26 For this more modest claim, Dixon relies on Haley v. Pan American World Airways, Inc.27
Haley, which is a Louisiana diversity case, actually states that comparability provides little value
in determining the excessiveness of a given award, and it applies a case comparison only because
Louisiana had approved of the methodology to some extent:
We recognize, as does the Louisiana Supreme Court, that an examination of such prior awards
is of limited use in assessing the particular damages suffered by these particular claimants under
these particular circumstances. However, as the Louisiana Court also appreciates, prior awards
may be of some aid in determining excessiveness when “the present award is shown to be
greatly disproportionate to past awards . . . for . . . ‘similar’ injuries.”28
In other words, Haley engaged in a jury award comparison in accordance with Louisiana law, not
federal law. The case in no way suggests that comparability is the “mainstay” of the clear
excessiveness inquiry under federal law. Thus, through two i naccurate citations, the law of
comparability in this circuit has been materially misstated.
To the extent that the majority opinion and similar non-controlling Fifth Circuit cases conflict with
our long-standing precedent on comparing jury awards, they are not binding precedent in this circuit.
Under our prior precedent rule, “the holding of the first panel to address an issue is the law of this
Circuit, thereby binding all subsequent panels unless and until the first panel’s holding is overruled

-- 16 of 20 --

29 United States v. Ocean Bulk Ships, Inc., 248 F.3d 331, 340 n.2 (5th Cir. 2001) (citing Smith v. GTE, 1
236 F.3d 1292, 1300 n.8 (5th Cir. 2001)). 2
30 See, e.g., Caldarera v. E. Airlines, Inc., 705 F.2d 778, 783 (5th Cir. 1983); Shows v. Jamison Bedding, 1
Inc., 671 F.2d 927, 934 (5th Cir. 1982). 2
31 See In re Clay, 35 F.3d 190, 194 (5th Cir. 1994) (“[A] cold record cannot capture the atmosphere, the 1
expressions, the attitudes that are the marrow of a jury trial.”); accord Caldarera, 705 F.2d at 782 (“Our review 2
is not only hindsight, but is based on a written record with no ability to assess the impact of the statement on 3
the jury or to sense the atmosphere of the courtroom.”). 4
32 Caldarera, 705 F.2d at 782. 1
17
by the Court sitting en banc or by the Supreme Court.”29 Thus, in accordance with this circuit’s prior
holdings, a jury award is excessive only if it shocks the judicial conscience. Although case
comparisons may serve a secondary role in providing a rough guide to our excessiveness inquiry, they
are not controlling. The mere fact that an award is greater or less than awards in comparable cases
does not justify ordering remittitur.
II.
Sound policy arguments support this circuit’s limited reliance on past awards when determining
excessiveness in subsequent cases. The assessment of damages for emotional distress is so fact-driven
and so largely a matter of judgment that we are rightfully hesitant to substitute our views for those
of the jury.30 Unlike the jury, we are limited to reviewing a “cold record.”31 The jury, who has the
benefit of hearing live testimony and observing witness demeanor, is more qualified to determine the
appropriate amount of emotional distress damages. To paraphrase Judge Rubin in Caldarera, the jury
has seen the parties and heard the evidence; we have only read papers.32
The limitations of our hindsight review are amplified when we attempt to examine awards granted
in prior cases. When reviewing prior cases, we lack even the benefit of a “cold record.” Even our
most thorough opinions provide only summaries of the evidence presented at trial. For instance, the

-- 17 of 20 --

33 245 F.3d 474 (5th Cir. 2001). 1
34 Id. at 488. 1
35 As one observer has commented, “The doctrine of comparability is based on the erroneous assumption 1
that plaintiffs with the same or similar causes of action must have suffered similar injuries; therefore, the 2
amounts awarded to compensate those plaintiffs should be comparable.” J. Patrick Elsevier, Note, Out-of- 3
Line: Federal Courts Using Comparability to Review Damage Awards, 33 Ga. L. Rev. 243, 259 (1998) 4
(analyzing the variance of damage awards in the Seventh Circuit strip search cases). 5
18
majority compares the present case to Giles v. General Electric Co., an employment discrimination
case involving the remittitur of an emotional distress award.33 The Giles opinion, however,
summarizes the facts relevant to the emotional distress award in only two sentences:
Giles testified that he has had trouble sleeping, suffered headaches and marital difficulties, and
lost the prestige and social connections associated with his position at GE and his service as
treasurer of the local union. Joyner testified that Giles appeared “despondent, depressed, down
and absolutely utterly discouraged about not being able to come back to work.”34
Without more insight into the nature and quality of this testimony, the Giles opinion provides little
guidance in our determination of whether $100,000 was an excessive award under the facts of this
case. Unless we aim to create an award schedule for intangible injuries like sleeplessness, marital
difficulties, and loss of prestige, I see no way of determining whether a subsequent award is excessive
based on the factual summary provided in Giles.35
In addition to the problems associated with our lack of information about past jury awards, there
is the separate concern of deciding which past awards we should consider. In order to establish the
permissible range for Title VII emotion distress awards, the majority considers five employment
discrimination cases in which we approved six-figure emotional distress awards. Three of those

-- 18 of 20 --

36 Forsyth v. City of Dallas, 91 F.3d 769 (1996). 1
37 Rizzo v. Children’s World Learning Ctrs. Inc., 173 F.3d 254 (1999). 1
38 Williams v. Trader Publ’g Co., 218 F.3d 481 (2000). 1
39 Shows, 671 F.2d at 934 (“In most of these cases . . . the jury verdicts were upheld, and they thus shed 1
no light on how high an award must be to be ‘excessive.’”); accord In re Air Crash Disaster Near New Orleans, 2
767 F.2d at 1156 (“Of course, simply because certain awards have been affirmed does not indicate that these 3
are the highest, or even near the highest awards which might be allowed.”). 4
40 See Elsevier, supra note 20, at 265-66. 1
41 See, e.g., Salinas v. O’Neill, 286 F.3d 827, 831 (5th Cir. 2002) (comparing the award to two cases); 1
Giles v. Gen. Elec. Co., 245 F.3d 474, 489 (5th Cir. 2001) (comparing the award to one other case). 2
42 Forsyth v. City of Dallas, 91 F.3d 769, 774 (1996) (“Judgments regarding noneconomic damages are 1
notoriously variable.”). 2
19
opinions, Forsyth,36 Rizzo,37 and Williams,38 are of little value to our excessiveness inquiry. None of
those cases involves a remittitur or a damage award that was found to be excessive. As we have
stated at least twice before, cases in which a jury verdict is upheld “shed no light on how high an
award must be to be ‘excessive.’”39 In other words, our decision to affirm a jury award only indicates
that the given award was not excessive; it says nothing about the maximum award that could have
been awarded under those facts.
Finally, even assuming that we analyze the appropriate cases, the information that those cases
provide is of questionable value. First, the sample size of relevant cases is often too small to realize
any sort average maximum award.40 Many of our cases employing case comparisons analyze fewer
than three cases to determine whether a given award is clearly excessive.41 Second, there is no reason
to assume that a value assigned to a particular injury by a prior jury is any more correct than the value
assigned by a subsequent jury. Dignitary injuries like emotional distress are necessarily based on the
decision-maker’s subjective impressions.42 It seems hopelessly arbitrary to gauge the excessiveness

-- 19 of 20 --

20
of all future emotional distress awards against a handful of prior awards that are not based on
objective criteria.
III.
Despite my fundamental disagreement with the case-comparison methodology employed by the
majority, I concur in the result rendered. In the present case, the evidence cannot support an award
for $100,000 in future damages. As discussed in Section IV. C. of the majority opinion, Ms.
Thomas’s emotional distress evidence is predominantly attributable to her past emotional distress
award. The record indicates that Ms. Thomas now works at another unit and is no longer serving
under racially discriminating supervisors. Every witness testifying about her emotional state, including
Ms. Thomas herself, stated that her condition has improved since her transfer from the Estelle Unit.
The only evidence that Ms. Thomas will suffer future emotional distress was Thomas’s testimony that
she fears that she will never be promoted and her continued stress and fatigue. It seems patently
excessive to award Ms. Thomas over three times the amount of damages that the jury awarded her
for her past emotional distress (which was demonstrably more severe than her future emotional
distress). I agree with my colleagues that $75,000 is the most that the could have reasonably awarded
and is therefore the appropriate level of remittitur.

-- 20 of 20 --