Giles v. General Electric

Revised
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-11059
_______________
CHARLES M. GILES,
Plaintiff-Appellee-
Cross-Appellant,
VERSUS
GENERAL ELECTRIC COMPANY,
Defendant-Appellant-
Cross-Appellee.
_________________________
Appeals from the United States District Court
for the Northern District of Texas
_________________________
March 19, 2001
Before JOLLY, JONES, and SMITH,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
This appeal arises out of a disability dis-
crimination suit filed by Charles Giles against
General Electric Company (“GE”), which ap-
peals the denial of its motion for judgment as
a matter of law (“j.m.l.”) following a verdict in
favor of Giles. GE further appeals the award
of attorneys’ fees. Giles cross-appeals the
quantum of damages and the dismissal of his
retaliation claim under state law. We affirm in
part, reverse in part, and remand for further
proceedings.
I.
Beginning in 1978, Giles worked as a

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Class A Machinist.1 In April 1995, he injured
his back lifting toolboxes while traveling home
from a customer location. Although he tried
to work thereafter, the pain forced him, in a
few days, to seek treatment from Dr. Eric
Coligado, who in July 1995 released him to
return to GE, where he attempted to work for
approximately a week before succumbing
again to back pain.
The following month, Coligado prescribed
a functional capacity evaluation (“FCE”), on
the basis of which2 he concluded that Giles had
attained maximum medical improvement and
rated him as nine percent impairedSSmeaning
Giles exhibited ninety-one percent of the phys-
ical capacity of an unimpaired person. In Sep-
tember 1995, Coligado released Giles to work
once again, this time under permanent lifting
restrictions.
On October 12, Coligado released Giles to
a transitional work program with a twenty-
pound lifting restriction but, five days
laterSSapparently at the urging of a nurse in
the employ of GESSrescinded the restriction.
Giles refused to work, however, contending
that he was unable to lift even twenty pounds.
Upset with what he regarded as GE’s
interference with his relationship with Coliga-
do, Giles thereafter sought treatment from Dr.
John Milani, who performed surgery in March
1996 and thereafter prescribed a second FCE.
In light of the FCE results, Milani
recommended in June 1996 that Giles limit his
work to a “medium physical demand level”
and shortly thereafter released him to work but
imposed a permanent lifting restriction of fifty
pounds.
On August 6, 1996, Milani informed GE
that the restrictions would not allow Giles to
return to work as a Class A Machinist.3 In an
August 13 meeting with GE representatives,
Giles learned that, based at least in part on
Milani’s findings, GE would not allow him to
return to work.
Giles filed an application for disability pen-
sion GE in November 1996. As a condition of
eligibility for the pension, Giles asserted that
he was “permanently incapacitated for further
work.” GE approved the application, and
Giles began receiving payments under the
pension plan in April 1997. Giles further
sought long term disability (“LTD”) benefits,
which GE agreed to pay through April 1997,
backdated to October 1995. After Giles’s
LTD benefits expired, he filed with GE in July
1997 a written request for accommodation un-
der the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101 et seq.
1 As a Class A Machinist, Giles repaired com-
ponents of power-generating equipment produced
by GE. The position required occasional travel to
customer locations and the lifting of objects
weighing up to ninety pounds. According to Giles
and GE, the position “entailed a lot of crawling
around into steam turbines” and represented “very
physical and heavy work.”
2 The FCE results indicated that Giles
frequently could lift twenty to twenty-five pounds
and occasionally fifty pounds. Coligado interpret-
ed these results as indicating that Giles could not
“safely go back to his regular duty work.”
3 Giles testified that Milani’s conclusion re-
garding his inability to return to work was based on
an erroneous job description GE had given to
Milani. According to Giles, GE furnished to Mi-
lani the job description for a welder, which
required, inter alia, lifting equipment that weighed
over sixty-seven pounds, and lifting parts that
weighed up to one hundred pounds to a height of
forty inches.

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3
Giles submitted to a third FCE, which qual-
ified him to work only at “medium duty”
positions. Failing to secure an unqualified re-
lease to work, he applied for Social Security
Disability Insurance (“SSDI”) in September
1997. The Social Security Administration
rejected the application, however, finding that
“[his] condition does not prevent [him] from
performing [his] previous job as a machinist as
it is generally performed.”
II.
Giles sued in November 1997, asserting
claims for discrimination under the ADA and
the Texas Commission on Human Rights Act
(“TCHRA”), TEX. LAB. CODE § 21.001 et seq.
He followed with an amended complaint, ad-
ding a claim for retaliation under the ADA, a
claim for retaliation under TEX. LAB. CODE
Ann. § 451.001,4 and state tort claims. The
court granted GE’s motion for summary judg-
ment on the state tort and retaliation claims
and reserved judgment on GE’s contention
that Giles’s SSDI and LTD benefit
applications estopped him from asserting that
he was a qualified individual for purposes of
the ADA. The court considered the impact of
Cleveland v. Policy Management Systems
Corp., 526 U.S. 795 (1999), then denied sum-
mary judgment on the estoppel issue, ruling
that Giles had sufficiently explained the
discrepancies between his assertions on the ap-
plications and his contention that he was a
qualified individual. See Giles v. Gen. Elec.
Co., Civ. Ac. No. 3-97-CV-2774-H, 1999
U.S. Dist. LEXIS 9369 (N.D. Tex. June 9,
1999).
GE moved for j.m.l. on several issues after
the close of Giles’s case in chief. First, GE
argued that Giles had failed to prove that he
was a qualified individual under the ADA and
that he was judicially estopped from claiming
qualified individual status. Second, GE
asserted that Giles had failed to prove the
elements of a retaliation claim under the ADA.
The court denied the motion with respect to
Giles’s status as a qualified individual5 and
granted it with respect to the retaliation claim.
The jury made the following findings via
special verdict: (1) Giles is a qualified
individual with a disability; (2) his disability
was a motivating factor in GE’s refusal to
rehire him; (3) the reasonable accommodation
requested by Giles would not impose an undue
burden on GE; (4) GE failed to make a good
faith effort reasonably to accommodate Giles’s
disability; (5) Giles is entitled to $400,000 in
compensatory damages; (6) GE violated
Giles’s rights under the ADA with malice or
reckless indifference; and (7) Giles is entitled
to $800,000 in punitive damages. Citing 42
U.S.C. § 1981a(3)(D), the court limited the
award to $300,000,6 denied Giles’s motion for
back pay, awarded front pay of $141,110, and
granted Giles attorneys’ fees of $150,837.
GE filed a post-judgment motion for j.m.l.
under FED. R. CIV. P. 50(a), contending that
4 The amended complaint did not cite the rel-
evant Texas statute but merely referenced “Federal
and State anti-retaliation laws.”
5 The court stated that it was “going to deny the
motion [with respect to Giles’s status as a qualified
individual] . . . and we’ll see how we do on that.”
6 The district court characterized the limited
award wholly as compensatory damages,
neglecting any punitive award, because the jury’s
compensatory award alone exceeded the statutory
cap. We reject this characterization for the
purpose of evaluating whether Giles’s injuries
supported the compensatory award. See infra part
IV.A.

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(1) Giles’s statements on his SSDI and benefit
applications estop him from asserting his status
as a “qualified individual with a disability” un-
der the ADA; (2) Giles is not a qualified
individual with a disability, because he could
not have performed his job even with
reasonable accommodation; (3) Giles is not
disabled for purposes of the ADA, because he
was not restricted from a broad class of jobs;
(4) GE does not regard Giles as disabled;7
(5) GE has a policy of not allowing restricted
individuals to return to work and could not be
required to act contrary to that policy;8
(6) Giles is not entitled to an award of front
pay; and (7) the attorneys’ fee award is
excessive. The court denied the motion in all
respects.
GE appeals the denial of the rule 50
motion, the magnitude of the damage award,
and the order awarding attorneys’ fees. Giles
cross-appeals the refusal to award back pay,
the limitation of the compensatory and
punitive awards, and the order setting off
Giles’s disability benefits against his award.
III.
We turn first to GE’s arguments. When re-
viewing the denial of j.m.l., we “consider all of
the evidence . . . in the light and with all rea-
sonable inferences” in favor of the party
opposing the motion. Boeing Co. v. Shipman,
411 F.2d 365, 374 (5th Cir. 1969) (en banc),
overruled on other grounds by Gatreaux v.
Scurlock Marine, Inc., 107 F.3d 331 (5th Cir.
1997) (en banc).
If the facts and inferences point so
strongly and overwhelmingly in favor of
one party that the Court believes that
reasonable men could not arrive at a
contrary verdict, granting of the
motion[] is proper. On the other hand,
if there is substantial evidence opposed
to the motion[], that is, evidence of such
quality and weight that reasonable and
fair-minded men in the exercise of
impartial judgment might reach different
conclusions, the motion[] should be
denied, and the case submitted to the
jury.
Id. Accord Piotrowski v. City of Houston,
237 F.3d 567, 576 n.9 (5th Cir. 2001).
The court denied GE’s motion for j.m.l.
made at the close of Giles’s case. Under rule
50(b), if a party moves for j.m.l. at the close of
all the evidence, it may renew its motion after
judgment. The right to renew the motion
post-judgment can be waived, however: “[B]y
introducing its own evidence after the
plaintiff’s case in chief, and by failing to renew
the motion for [j.m.l.], the defense waive[s] its
motion for judgment after the verdict.” Tamez
v. City of San Marcos, 118 F.3d 1085, 1089
(5th Cir. 1997).9 Nonetheless, we “ha[ve]
been willing to excuse certain ‘de minimis’ de-
partures from technical compliance with Rule
50(b),” McCann, 984 F.2d at 671, if the
purposes of the rule have been met;10 thus, we 7 We need not address this argument, because
the verdict is sufficiently supported by the finding
that Giles in fact was disabled for purposes of the
ADA. See infra part III.B.
8 Although, in its motion for j.m.l., GE argued
that its policy preempts liability under the ADA, it
does not pursue that issue on appeal.
9 See rule 50(b); McCann v. Tex. City Refining,
Inc., 984 F.2d 667, 673 (5th Cir. 1993).
10 Rule 50(b) serves two purposes:
(continued...)

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5
generally have excused violations of rule 50(b)
only where
the trial court had reserved a ruling on
an earlier motion for directed verdict
(made at the close of the plaintiff’s
evidence); the defendant called no more
than two witnesses before closing; only
a few minutes elapsed between the
motion for directed verdict and the
conclusion of all the evidence; and the
plaintiff introduced no rebuttal evidence.
Id.11
If a defendant has waived its right to move
for j.m.l. after judgment, we review merely for
plain error and reverse only if the judgment
works a “manifest miscarriage of justice.” Mc-
Cann, 984 F.2d at 673 (quoting Coughlin v.
Capitol Cement Co., 571 F.2d 290, 297 (5th
Cir. 1978)). GE failed to comply with rule
50(b) in moving for j.m.l after judgment. Be-
cause the post-judgment motion for j.m.l.
argued several issues, we analyze each
separately to determine whether GE’s
shortcoming can be considered de minimis.
A.
1.
The first issue GE raised in its post-
judgment motion for j.m.l. is whether the
statements on Giles’s SSDI and LTD
applications operate judicially to estop him
being a claimant under the ADA. We
conclude that, with respect to this issue, GE’s
failure to comply with the strictures of rule
50(b) are excusable.
First, the court arguably reserved ruling on
that issue when it was raised at the close of
Giles’s case. Although the court denied the
motion, it added, “we’ll see how we do on
that,” indicating a willingness to revisit the
issue at the close of all the evidence. Second,
GE’s only witness, Bob Scaggs, had first been
called by Giles. Importantly, his testimony
was unrelated to the issue of Giles’s SSDI and
LTD applications; furthermore, GE
contendsSSand Giles does not disputeSSthat
Scaggs testified for only an hour.12 Third, as
in the cases cited in McCann, the plaintiff here
presented no rebuttal case.
Most importantly, allowing GE to seek
j.m.l. on the estoppel issue does not thwart the
purposes of rule 50(b). The issue of estoppel
was well-litigated. Both parties briefed it, and
the court tendered a ruling before trial. In
10(...continued)
to enable the trial court to re-examine the
question of evidentiary insufficiency as a
matter of law if the jury returns a verdict
contrary to the movant, and to alert the op-
posing party to the insufficiency before the
case is submitted to the jury, thereby
affording it an opportunity to cure any
defects in proof should the motion have mer-
it.
Bohrer v. Hanes Corp., 715 F.2d 213, 216 (5th
Cir. 1983).
11 But see Tamez, 118 F.3d at 1091 (upholding
j.m.l. despite fact that defendant’s case in chief
included five witnesses and lasted over five hours,
because the court had discussed the j.m.l.
extensively with the parties and expressly had
reserved ruling on the motion at the close of
plaintiff’s case, so plaintiff was not unfairly
surprised).
12 Although Giles does not dispute GE’s
assertion that Scaggs testified for only an hour, he
notes that Scaggs’s direct testimony comprises
fifty-three pages of transcript.

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addition, in cross-examination and redirect tes-
timony, Giles discussed his SSDI and LTD ap-
plications. After moving for j.m.l. at the close
of Giles’s case, GE did not address the issue in
its own case in chief, and Giles presented no
rebuttal evidence. Thus, the issue had
developed no further by the close of the
evidence than it had when GE first moved for
j.m.l. Therefore, Giles could not have been
unfairly surprised by the motion for j.m.l. on
this issue after judgment. We thus review the
issue of estoppel under the Boeing standard.
2.
To present a prima facie case of
discrimination under the ADA, Giles must
prove that “[he] is a qualified individual with a
disability and that the negative employment
action occurred because of the disability.”
Sherrod v. Am. Airlines, Inc., 132 F.3d 1112,
1119 (5th Cir. 1998); see 42 U.S.C. §
12112(a). A “qualified individual with a
disability” is defined by the ADA as someone
who has a disability, but who, “with or without
reasonable accommodation, can perform the
essential functions of the employment position
that such individual holds or desires.” 42
U.S.C. § 12111(8).
GE contends that Giles failed sufficiently to
explain the apparent inconsistencies between
the statements on his benefit applications and
his asserted status as a qualified individual to
enable a reasonable juror to conclude that he
could perform the essential functions of his
job, even with reasonable accommodation.
According to GE, Giles therefore is estopped
from claiming he is able to work with
reasonable accommodation, by virtue of the
fact that his applications for SSDI and LTD
benefits asserted that he was completely
disabled.
[A] plaintiff's sworn assertion in an
application for disability benefits that she
is, for example, “unable to work” will
appear to negate an essential element of
her ADA caseSSat least if she does not
offer a sufficient explanation. For that
reason, we hold that an ADA plaintiff
cannot simply ignore the apparent
contradiction that arises out of the
earlier SSDI total disability claim. Rath-
er, she must proffer a sufficient
explanation.
. . .
. . . When faced with a plaintiff's
previous sworn statement asserting “to-
tal disability” or the like, [a] court
should require an explanation of any ap-
parent inconsistency with the necessary
elements of an ADA claim. To defeat
summary judgment, that explanation
must be sufficient to warrant a rea-
sonable juror’s concluding that,
assuming the truth of, or the plaintiff's
good faith belief in, the earlier
statement, the plaintiff could nonetheless
“perform the essential functions” of her
job, with or without “reasonable
accommodation.”
Cleveland, 526 U.S. at 806-07. Under
Cleveland, unless Giles properly explained the
discrepancy between his earlier sworn
assertions in his SSDI application, he failed to
demonstrate a material issue of fact with
respect to his status as a qualified individual,
and the district court should have granted
summary judgment or j.m.l. in favor of GE on
that issue.
As an initial matter, the assertions in Giles’s
SSDI application do not operate judicially to

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estop him from asserting qualified individual
status only because he failed to obtain benefits
under SSDI. Without an award of SSDI
benefits, the inconsistency between Giles’s
prior statements and his assertions in this
litigation does not give rise to judicial
estoppel:
[I]f an individual has merely applied for,
but has not been awarded, SSDI
benefits, any inconsistency in the theory
of the claims is of the sort normally tol-
erated by our legal system. Our
ordinary rules recognize that a person
may not be sure in advance upon which
legal theory she will succeed, and so
permit parties to “set forth two or more
statements of a claim or defense
alternately or hypothetically,” and to
“state as many separate claims or
defenses as the party has regardless of
consistency.”
Id. at 805. The doctrine of judicial estoppel
therefore is inappropriate in this case.
Even without the operation of judicial es-
toppel, however, the statements on Giles’s
SSDI application properly could provide the
basis for summary judgment if they undermine
the factual assertions necessary to his ADA
claim.13 Giles’s SSDI application asserted that
he has “recurrent disk herniation, resulting
with [sic] leg pain & numbness,” “inability to
walk more than 1½ blocks,” and a
“perm[anent] [weight] restriction.” The ap-
plication also stated that Giles has “[c]hronic
pain” and that he “can’t walk or stand long,”
although he contends that he did not make
those assertionsSSinstead, he claims, the con-
sultant hired by GE inserted them after he had
completed the form.
Before trial, the court requested briefs on
the issue, then ruled that, because “Giles as-
serts he can perform the job with reasonable
accommodation, and none of the disability
programs he applied for account for
reasonable accommodations, . . . Plaintiff has
offered a sufficient explanation to [survive
summary judgment].” Giles, 1999 U.S. Dist.
LEXIS 9369, at *3. Similarly, Giles testified
that none of the benefit applications at issue
anticipated reasonable accommodation and
that he felt he could perform the job with such
accommodation. Giles therefore sufficiently
explained the assertions on his SSDI
application to allow a reasonable juror to
conclude that, notwithstanding his prior
representations, he is a qualified individual
13 See Albertson v. T.J. Stevenson & Co., 749
F.2d 223, 228 (5th Cir. 1984) (“[A] nonmovant
cannot defeat a motion for summary judgment by
submitting an affidavit which directly contradicts,
without explanation, his previous testimony.”); see
also Feldman v. Am. Mem’l Life Ins. Co., 196
F.3d 783, 791-92 (7th Cir. 1999) (“Judicial estop-
pel of an ADA claim, however, is distinguishable
from summary judgment against the plaintiff when
factual assertions essential to the claim are
(continued...)
13(...continued)
undermined by the plaintiff's previous sworn state-
ments.”). Although Cleveland dealt with the
interplay between an ADA plaintiff’s assertions at
trial and her earlier SSDI application, the Court
limited itself to the question of judicial estoppel;
with respect to “factual contradictions,” the Court
“[did] not necessarily endorse [existing] cases, but
[left] the law as we found it.” Cleveland, 526 U.S.
at 807. Cleveland is instructive, however, in that
it borrowed from prior “factual contradiction” cas-
es, including Albertson, the requirement that a
plaintiff explain an apparent contradiction.

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8
under the ADA.14
This case is more similar to Cleveland and
Parker than to Reed or Feldman. The
plaintiff’s application in Reed described
specific symptoms that, if accepted as true,
would render her unable to obtain a
government license necessary for the
performance of her old position. The court in
Reed, 218 F.3d at 480, ruled that such
assertions could not be cured merely by
testifying that the assertions did not account
for reasonable accommodation. In Feldman,
the plaintiff failed to provide any explanation
for the factual inconsistencies.15
In contrast, Giles’s SSDI application is sim-
ilar to those in Cleveland and Parker, in that it
contains no specific assertions resisting his
explanation that he could perform his job with
reasonable accommodation;16 moreover, like
the plaintiffs in Cleveland and Parker, he
provided such an explanation. While Giles
conceded at trial that he suffers pain and labors
under a permanent lifting restrictionSSthe two
primary assertions in his applicationSShe
contends that a reasonable accommodation
would enable him to work at his old position,
despite those impairments. He therefore suf-
ficiently explained any factual inconsistencies
to survive either summary judgment or j.m.l.
14 Compare Cleveland, 526 U.S. at 807
(reasoning that the facts that the assertions on
plaintiff's SSDI application “were made in a forum
which does not consider the effect that reasonable
workplace accommodations would have on the
ability to work” and that the injury apparently
improved between the time she filed the SSDI ap-
plication and the time she asserted her status as a
qualified individual under the ADA, provided suf-
ficient explanation to survive summary judgment)
and Parker v. Columbia Pictures Indus., 204 F.3d
326, 334 (2d Cir. 2000) (opining that statement on
SSDI application that plaintiff was “still disabled
does not dictate the factual conclusion that he was
incapable of returning on a part-time basis or with
other accommodation,” and plaintiff’s explanation
to that effect precluded summary judgment), with
Reed v. Petroleum Helicopters, Inc., 218 F.3d
477, 480 (5th Cir. 2000) (reasoning that although
general statement of total disability may not have
been incompatible with qualified individual status,
pilot’s specific assertions on SSDI application that
“she could not sit for extended periods of time and
that her back problems made her ‘totally
unpredictable’ were properly considered in
determining that she could not fly a helicopter or
obtain a valid airmen’s certificate,” and bare
assertions that plaintiff spoke little English and that
SSDI application failed to anticipate reasonable
accommodation were insufficient to survive sum-
mary judgment) and Feldman, 196 F.3d at 791-92
(concluding that plaintiff’s utter failure to explain
why sworn statement that she was “completely and
totally disabled” on SSDI application was not
inconsistent with her asserted status as a qualified
individual rendered summary judgment
appropriate). Because Giles’s explanations
encompass both his SSDI application and his other
benefit applications, we do not reach the issue of
whether any unexplained inconsistencies between
the unsworn statements in those applications and
his assertions in this litigation might properly form
the basis for summary judgment on this issue.
15 See Feldman, 196 F.3d at 792 (“Unlike the
plaintiff in Cleveland, Feldman failed to offer any
explanation for the contradiction between her SSDI
and ADA statements.”)
16 The one assertion on Giles’s SSDI
application that might preclude a jury from finding
that he could perform his prior job with reasonable
accommodation is the statement that he has chronic
pain and cannot walk or stand long. A reasonable
jury, however, could believe Giles’s contention that
he did not make those assertions.

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B.
GE argues that, apart from the issues of es-
toppel and factual inconsistency, the district
court should have found as a matter of law
that Giles could not have performed his job
even with reasonable accommodation,
negating Giles’s status as a “qualified
individual” under the ADA. With respect to
this issue, GE’s rule 50(b) violations cannot be
considered de minimis.
Although GE called only one witness as
part of its case in chief, that witness testified
extensively regarding the nature of the Class A
Machinist position, whether a person with
Giles’s disabilities would be able to perform
the duties required, and whether any
accommodation would be feasible. GE relies
heavily on the testimony of that witness in its
post-judgment motion for j.m.l. and on appeal.
In light of the close nexus between the issue
on which GE sought j.m.l. and the extensive
testimony of its lone witness, to entertain GE’s
post-judgment motion on this issue despite
GE’s failure to comply with rule 50(b) would
unfairly surprise Giles and thereby would
thwart one of the purposes of rule 50(b). See
Bohrer v. Hanes Corp., 715 F.2d 213, 216
(5th Cir. 1983). Consequently, we cannot ex-
cuse GE’s failure to follow the procedures
outlined by the rule, so GE waived its motion
for j.m.l. with respect to this issue.
Thus, we review only for plain error the
verdict with respect to whether Giles is a qual-
ified individual under the ADA. Under that
standard, “our inquiry is limited to whether
there was any evidence to support the jury’s
verdict, irrespective of its sufficiency, or
whether plain error was committed which, if
not noticed, would result in a manifest
miscarriage of justice.” Coughlin, 571 F.2d at
297 (internal quotation marks omitted).
Under the ADA, “‘qualified individual with
a disability’ means an individual with a
disability who, with or without reasonable ac-
commodation, can perform the essential func-
tions of the employment position that such
individual holds or desires.” 42 U.S.C.
§ 12111(8). In determining what constitutes
the essential functions of a position,
“consideration shall be given to the employer’s
judgment as to what functions of a job are
essential, and if an employer has prepared a
written description before advertising or
interviewing applicants for the job, this
description shall be considered evidence of the
essential functions of the job.” Id.
GE contends that Giles cannot bend, climb,
or lift to the degree required by the Machinist
Class A position, and it introduced testimony
indicating that those skills are essential to the
position. Nonetheless, Giles produced a pub-
lished list of “Job Classifications and Descrip-
tions” from GE’s Dallas Service Center that
included a description of the Machinist Class A
position:
Performs miscellaneous operations in-
volving broad machine shop experience.
Operates all types of machine tools, in-
volving close tolerance work, intricate
setups and development. Dismantles,
assembles, diagnoses and corrects
mechanical trouble on electrical and
mechanical equipment such as turbines,
motors, generators, transformers, etc.
Machines or builds parts from samples
or drawings. Performs related duties as
assigned. May direct others.
Though the description “does not purport
to be all-inclusive or exhaustive of the actual
requirements of [the] job,” it nowhere
indicates that climbing, bending, or lifting is

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10
essential. The description may not be the
bestSSor even sufficientSSevidence of the es-
sential requirements of the Machinist Class A
position to survive under a more stringent
standard of review, but it does provide, under
§ 12111(8), some evidence supporting the
verdict.
Furthermore, Giles introduced evidence
that Milani’s final determination finding him
unable to return to work as a Class A
MachinistSSa determination that apparently
influenced GE’s decision not to rehire
GilesSSwas based on an incorrect job
description pro vided to Milani by GE. This
discrepancy ameliorates GE’s assertion that
medical experts determined that Giles could
not perform the essential elements of the Class
A Machinist position. Finally, the SSA’s
determination that Giles’s disability “does not
prevent [him] from performing [his] previous
job as machinist as it is generally performed” is
additional evidence supporting the verdict.
We cannot conclude that there was no
evidence produced to support the verdict; the
jury was no t plainly erroneous in finding that
Giles was a qualified individual under the
ADA.
C.
In addition to arguing that Giles is not a
“qualified individual,” GE contends that he
failed to establish another element of his prima
facie case under the ADA; namely, that he
possessed a disability as defined by that
statute. In denying GE’s post-judgment
motion on the issue, the district court
notedSSand GE does not disputeSSthat, before
filing its post-judgment motion, GE never
raised the issue of whether Giles was disabled
and, in fact, previously had conceded the
issue.17 By failing to raise the issue at any time
before its post-judgment motion, GE waived
it, so we refuse to consider it now.18
IV.
A.
The jury awarded $400,000 as
compensatory damages and $800,000 as
punitive damages pursuant to 42 U.S.C. §
1981a, which authorizes compensatory and
punitive damages for discrimination under the
ADA.19 The court limited the damages to
$300,000 under the limitation provisions of 42
U.S.C. § 1981a(b)(3) and characterized the
entire award, so limited, as compensatory.20
GE argues that the award is unsupported by
17 In its April 1999 summary judgment order,
the court noted that “Defendant does not dispute
that Plaintiff, who injured his back while working
for the Defendant in Mexico and has undergone
back surgery and rehabilitation due to this injury,
is in fact disabled for purposes of the ADA.”
Moreover, the joint pretrial order fails to mention,
either as a defense or as a contested issue of law,
Giles’s alleged lack of disability for purposes of the
ADA.
18 See Portis v. First Nat’l Bank, 34 F.3d 325,
331-32 (5th Cir. 1994). (holding that an issue not
raised in the district court will not be reviewed on
appeal, and determining that “[a] party has
presented an issue in the trial court if that party has
raised it in either the pleadings or the pretrial order,
or if the parties have tried the issue by consent.”).
19 Tracking the language of § 1981a(b)(3), the
charge defined compensatory damages to include
“emotional pain and suffering, inconvenience, men-
tal anguish, loss of enjoyment of life, and other
non-pecuniary losses.”
20 Giles contends that the court improperly ap-
plied the statutory cap. We consider that in
part V.A, infra.

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11
competent evidence of actual injury.
The capped amount for a damage award
under §1981a is $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. See Vadie v. Miss. State Univ., 218 F.3d
365, 375-76 (5th Cir. 2000), cert. denied, 121
S. Ct. 859 (2001), and cert. denied, 2001 U.S.
LEXIS 1197 (U.S. Feb. 20, 2001) (No. 00-
1007).
In limiting Giles’ damages to $300,000, the
district court characterized those damages as
solely compensatory. Without passing on
whether it is appropriate in every case to char-
acterize limited damages as purely
compensatory,21 we note that the lack of
evidence of malice or reckless indifference on
the part of GE justifies that delineation here.22
We thus consider whether Giles produced
sufficient evidence to support a $300,000
compensatory judgment.
We review with deference damage awards
based on intangible harm, because “the harm is
subjective and evaluating it depends
considerably on the demeanor of witnesses.”23
Nonetheless, to merit any award greater than
nominal damages, emotional distress damages
must “be supported by competent evidence
concerning the injury.”24
There are two requirements to prove
emotional distress, the first of which is
specificity with respect to the alleged injury:
“[T]here must be a specific discernable injury
to the claimant’s emotional state, proven with
evidence regarding the nature and extent of the
harm . . . . [H]urt feelings, anger and
frustration are part of life . . . and [are] not the
types of harm that could support a mental
anguish award.” Id. Damages for emotional
distress may be appropriate, however, where
“the plaintiff suffers sleeplessness, anxiety,
stress, marital problems, and humiliation.”
Migis v. Pearle Vision, Inc., 135 F.3d 1041,
1047 (5th Cir. 1998).
Second, we require more than vague
allegations to establish existence of the injury.
Because “‘emotional distress [is] fraught with
vagueness and speculation, [and] is easily sus-
ceptible to fictitious and trivial claims,’ we
must ‘scrupulously analyze an award of
compensatory damages for a claim of
emotional distress predicated exclusively on
the plaintiff’s testimony.’” Brady, 145 F.3d at
21 See Quint v. A.E. Staley Mfg. Co., 172 F.3d
1, 13-14 & n.9 (1st Cir. 1999), petition for cert.
filed (June 21, 1999) (No. 98-9984) (refusing, in
the face of substantial evidence supporting punitive
damages, to accept the district court’s
characterization of the limited award as purely
compensatory because “by its terms . . . section
1981a(b)(3) neither contemplates nor requires such
a characterization.”).
22 A punitive award is justified only if the
defendant acted “with malice or with reckless
indifference to the federally protected rights” of the
plaintiff. 42 U.S.C. § 1981a(b)(1).
23 Patterson v. P.H.P. Healthcare Corp., 90
F.3d 927, 937-38 (5th Cir. 1996) (quoting
1 HENRY H. PERRITT, JR., CIVIL RIGHTS IN THE
WORKPLACE § 4.6, at 245 (2d ed. 1995)).
24 Brady v. Fort Bend County, 145 F.3d 691,
718 (5th Cir. 1998) (quoting Carey v. Piphus, 435
U.S. 247, 264 n.20 (1978)). We use “emotional
distress” to refer to Giles’s emotional pain and
suffering, mental anguish, and loss of enjoyment of
life, to the extent that those injuries formed the
basis for the compensatory award.

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12
719. (quoting Price v. City of Charlotte, 93
F.3d 1241, 1250, 1251 (4th Cir. 1996)).
Importantly, however, “we do not now hold,
nor have we ever held, that a plaintiff may
never prove mental anguish damages with his
own testimony alone. In certain cases a
plaintiff’s testimony alone may be sufficient
proof of mental damages.” Id. at 720.25
Giles relies primarily on his own testimony
to support his contention of emotional distress,
although he also cites the testimony of a co-
worker, Mike Joyner. 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.” This testimony
is specific enough to allow a jury to award
compensatory damages.
We cannot say, however, that Giles is
entitled to the full $300,000. “There is a
strong presumption in favor of affirming a jury
award of damages. The damage award may be
overturned only upon a clear showing of
excessiveness . . . . However, when this court
is left with the perception that the verdict is
clearly excessive, deference must be
abandoned.” Eiland v. Westinghouse Elec.
Corp., 58 F.3d 176, 183 (5th Cir. 1995)
(citation omitted).
In such a case, we grant a remittitur, or if
the plaintiff chooses not to accept the remitted
award, a new trial on the issue of damages
alone. See id. To determine the size of the re-
mittitur, we follow the “maximum recovery
rule,” reducing the damages to the maximum
amount a reasonable jury could have awarded.
See Dixon v. Int’l Harvester Co., 754 F.2d
573, 590 (5th Cir. 1985). “Of course, our re-
assessment of damages cannot be supported
entirely by rational analysis, but involves an
inherently subjective component.” Eiland, 58
F.3d at 183.
The symptoms of which Giles complains
do not support an award of $300,000. In
Forsyth v. City of Dallas, 91 F.3d 769, 774
(5th Cir. 1996), we concluded that a jury
reasonably had awarded $100,000 for
emotional distress symptoms quite similar to
Giles’s.26 In our view, that amount properly
would compensate Giles for his emotional dis-
tress. To avoid substituting our judgment for
that of the jury, however, we augment that
amount by fifty percent to reach a maximum
recovery. See Dixon, 754 F.2d at 590 (citing
Caldarera v. E. Airlines, Inc., 705 F.2d 778,
784-85 (5th Cir. 1983)). We therefore reduce
Giles’ compensatory award to $150,000, with
the option of a new trial if he chooses not to
accept the remittitur.
25 See also Migis, 135 F.3d at 1047 (noting that
an award for emotional distress “does not always
require that the plaintiff offer medical evidence or
corroborating testimony in addition to her own
testimony”).
26 Forsyth upheld emotional distress damages
of $100,000 to one plaintiff based on her testimony
that “she suffered depression, weight loss,
intestinal troubles, and marital problems, that she
had been sent home from work because of her
depression, and that she had to consult a
psychologist,” and emotional distress damages of
$75,000 to a second plaintiff who “testified that he
suffered depression, sleeplessness, and marital
problems.” 91 F.3d at 774.

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13
B.
The district court awarded front pay of
$141,110.27 GE argues Giles failed to mitigate
his damages by seeking further employment
and that the court erred in awarding front pay
in light of this failure. We review front pay for
abuse of discretion. See Rutherford v. Harris
County, 197 F.3d 173, 188 (5th Cir. 1999).
In exercising that discretion, the district
court must consider whether an award of front
pay is reasonable under the facts of the case;
because front pay is an equitable remedy em-
ployed to account for future lost earnings, the
award “should reflect earnings in mitigation of
damages.” Patterson, 90 F.3d at 937 n.8. Ac-
cordingly, district courts “must consider [a
plaintiff’s] failure to mitigate . . . damages in
determining the extent to which, if at all, front
pay is appropriate.” Hansard v. Pepsi-Cola
Metro. Bottling Co., 865 F.2d 1461, 1470 (5th
Cir. 1989).
In support of its argument that Giles failed
to mitigate, GE cites primarily the refusal to
award back pay, contending that the finding of
failure to mitigate damages in that context re-
quires a similar finding with respect to front
pay. The court considered that argument,
however, and concluded that, notwithstanding
Giles’s failure to mitigate back pay damages,
GE had not met its burden of proving that
Giles had failed to mitigate his future damages.
The court therefore “decided to exercise its
equitable discretion and award Plaintiff front
pay in an effort to make him whole.”
The court did not abuse its discretion. The
only evidence cited by GE to show that Giles
failed to mitigate his future damages is the fact
that he accepted employment as a park
attendant and a finding by the Texas Workers’
Compensation Commission that he had “not
made a good faith effort to obtain employment
equal to [his] ability to work” and suspended
his workers’ compensation benefit for that rea-
son. Giles challenged the commission’s find-
ing and, after a hearing, persuaded that agency
that the benefits should not have been sus-
pended because, in fact, he had diligently
sought work. Moreover, although Giles is un-
able to detail specifically how he conducted his
job search, he attributes that shortcoming to a
lack of adequate record-keeping, not of effort.
Ultimately, this evidence is inconclusive.
Though the evidence of Giles’s failure to mit-
igate may have been sufficient to allow the
court to deny front pay, it was insufficient to
require it to do so.28
27 “Front pay is awarded to compensate the
plaintiff for lost future wages and benefits.” Shir-
ley v. Chrysler First, Inc., 970 F.2d 39, 44 (5th
Cir. 1992). Reinstatement generally is preferable
to an award of front pay, and we customarily re-
quire the district court to articulate its reasons for
finding reinstatement infeasible and awarding front
pay in lieu of reinstatement. See Weaver v. Amoco
Prod. Co., 66 F.3d 85, 88-89 (5th Cir. 1995). GE
concedes that reinstatement is not feasible.
28 Perhaps a thornier issue is whether front pay
is subject to the statutory cap embodied by
§ 1981a(b)(3), which limits “compensatory dam-
ages,” including, inter alia, “future pecuniary
losses.” Although the issue appears undecided in
this circuit, the majority of circuits to confront it
have concluded that front pay should not be limited
by § 1981a(b)(3) because, as an alternative to
reinstatement, it is equitable in nature and therefore
falls outside the statutory limitation of “com-
pensatory damages.” Compare Pals v. Shepel Bu-
ick & GMC Truck, Inc., 220 F.3d 495, 499-500
(7th Cir. 2000) (holding front pay exempt from
(continued...)

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14
C.
After a hearing, the court awarded
attorneys’ fees of $150,837. Pursuant to 42
U.S.C. § 1988(b), courts may award fees to
prevailing plaintiffs in civil rights actions. We
review an award for abuse of discretion and
any factual findings supporting the award for
clear error. See Riley v. City of Jackson, 99
F.3d 757, 759 (5th Cir. 1996). In exercising
that discretion, however, the district court
must heed the twelve-factor analysis of
Johnson v. Ga. Highway Express, Inc., 488
F.2d 714 (5th Cir. 1974).29 See Cobb v.
Miller, 818 F.2d 1227, 1232 (5th Cir. 1987).
“The ‘district court’s Johnson analysis . . .
need not be meticulously detailed to survive
appellate review’, but it must articulate and
clearly apply the Johnson criteria.” Riley, 99
F.3d at 760 (quoting Louisiana Power & Light
Co. v. Kellstrom, 50 F.3d 319, 331 (5th Cir.
1995)).
GE complains that the court abused its
discretion and that the award was excessive,
because Giles employed five lawyers, took no
depositions, made no court appearances before
trial, and argued no novel issues. We disagree.
The court considered the Johnson factors
carefully in determining the appropriate fee
award.
Specifically, the court found that Giles’s
attorneys’ lodestar value accurately reflected
the complexity and novelty of the case;30
moreover, the court found that the ability and
reputation of Giles’s attorneys was accurately
28(...continued)
cap); EEOC v. W & O, Inc., 213 F.3d 600, 618 &
n.10 (11th Cir. 2000) (same); Gotthardt v. Nat’l
R.R. Passenger Corp., 191 F.3d 1148, 1153-54
(9th Cir. 1999) (same); Martini v. Fed. Nat’l
Mortgage Ass’n, 178 F.3d 1336, 1348-49 (D.C.
Cir. 1999) (same), cert. denied, 120 S. Ct. 1155
(2000); Medlock v. Ortho Biotech, Inc., 164 F.3d
545, 556 (10th Cir.) (same), cert. denied, 528 U.S.
813 (1999); Kramer v. Logan County Sch. Dist.,
157 F.3d 620, 626 (8th Cir. 1998) (same), with
Pollard v. E.I. du Pont de Nemours & Co., 213
F.3d 933, 945 (6th Cir. 2000) (reasoning that front
pay is compensatory in nature and therefore subject
to the cap), cert. granted, 121 S. Ct. 756 (2001);
Hudson v. Reno, 130 F.3d 1193, 1202-03 (6th Cir.
1997) (same). Like the majority of circuits, we
regard front pay as an equitable remedy, see
Walther v. Lone Star Gas Co., 952 F.2d 119, 127
(5th Cir. 1992). By failing to argue that the
limitation applies, however, GE has waived the
issue on appeal, so we do not decide it.
29 As we recently reiterated,
[t]he twelve Johnson factors are: (1) the
time and labor required, (2) the novelty and
difficulty of the issues, (3) the skill required
to perform the legal services properly, (4)
the preclusion of other employment, (5) the
(continued...)
29(...continued)
customary fee, (6) whether the fee is fixed
or contingent, (7) time limitations imposed
by the client or the circumstances, (8) the
amount involved and the results obtained,
(9) the experience, reputation, and ability of
the attorneys, (10) the undesirability of the
case, (11) the nature and length of the
professional relationship with the client, and
(12) awards in similar cases. Strong v.
BellSouth Telecomms., Inc., 137 F.3d 844,
850 n.4 (5th Cir. 1998) (citing Johnson,
488 F.2d at 717-19).
30 The lodestar value is the number of hours
worked by Giles’s attorneys multiplied by their
respective rates. It serves as the base value for any
fee award, subject to enhancement or reduction
based on the Johnson factors. See Riley, 99 F.3d
at 760.

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15
reflected in their customary billing rates and
that the result obtainedSSa successful
judgment of over $1,000,000, reduced to over
$400,000 by the statutory capSSjustified the
lodestar value.31 Finally, finding some of
Giles’s attorneys’ fees unreasonable, the court
reduced their hours and rates.
Although GE complains about the number
of attorneys employed by Giles, it does not
take issue with any of the court’s Johnson
analysis. We cannot conclude that the court
abused its discretion in determining the fee
award.
V.
A.
In his cross-appeal, Giles contends that the
statutory limitation of § 1981a(b)(3) does not
apply to the damages in this case, arguing that
the limitation is an affirmative defense; because
GE failed to plead that defense, it waived its
right to argue for limitation of the judgment
after trial. Giles can marshal no authority
directly supporting his assertion, so he argues
by analogy from Ingraham v. United States,
808 F.2d 1075 (5th Cir. 1987), in which we
considered the statutory limitation of the
Medical Liability and Insurance Improvement
Act of Texas, TEX. REV. CIV. STAT. ANN. art.
4590i. There, we analyzed several factors in
determining that the statutory limitation
functioned as an affirmative defense that must
be pleaded under FED. R. CIV. P. 8(c).
We need not reach the issue of whether the
statutory cap of § 1981a(b)(3) must be plead-
ed as an affirmative defense under Ingraham,32
because even assuming the cap is an
affirmative defense, GE’s failure to plead the
cap did not waive the defense in this case. Al-
though failure to raise an affirmative defense
under rule 8(c) in a party’s first responsive
pleading “generally results in a waiver. . . . ,
[w]here the matter is raised in the trial court in
a manner that does not result in unfair surprise
. . . technical failure to comply precisely with
Rule 8(c) is not fatal.” Allied Chem. Corp. v.
Mackay, 695 F.2d 854, 855-56 (5th Cir.
1983). Thus, a defendant does not waive an
affirmative defense if he “raised the issue at a
pragmatically sufficient time, and [the plaintiff]
was not prejudiced in its ability to respond.”
Id. at 856.
31 The district court correctly focused on the
weightier factors in the Johnson analysis, with em-
phasis on the most important factor, the result
obtained. See Migis, 135 F.3d at 1047 (noting
that, in conducting a Johnson analysis, a “court
should give special heed to the time and labor
involved, the customary fee, the amount involved
and the result obtained, and the experience,
reputation and ability of counsel,” and emphasizing
that “[t]he Supreme Court has twice made clear
that ‘the most critical factor’ in determining the
reasonableness of a fee award in a civil rights suit
‘is the degree of success obtained’” (quoting
Farrar v. Hobby, 506 U.S. 103, 114 (1992)).
32 The only court to have addressed the issue of
whether the limitation provision of § 1981a(b)(3)
functions as an affirmative defense reasoned per-
suasively that it does not; instead, the court opined,
the § 1981a cap is an integral part of the statutory
scheme under which the plaintiff sought
damagesSSthus, a plaintiff cannot have suffered
unfair surprise in the invocation of the cap, so the
cap should not be waivable as a defense. See
Oliver v. Cole Gift Ctrs., Inc., 85 F. Supp. 2d 109,
111-12 (D. Conn. 2000) (distinguishing Ingraham
as one of a number of cases in which “[t]he courts
. . . held that the caps were affirmative defenses in
order to prevent unfair surprise because the caps
were not evident on the face of the statutory
schemes under which the plaintiffs had brought
their claims.”)

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16
GE asserted the defense as a contested is-
sue of law in the joint pretrial order, and the
court held a hearing on the issue before trial.
Under these circumstances, Giles could not
have been unfairly surprised by the statutory
limitation. The court therefore properly
allowed GE to use the cap as a defense despite
GE’s failure to follow the strictures of rule
8(c).
B.
Giles contends that the court should have
“reallocated” into his claim under the Texas
Human Rights Act those damages in excess of
the federal statutory cap. We disagree.
The sole case relied on by Giles, Martini v.
Fed. Nat’l Mortgage Ass’n, 178 F.3d 1336
(D.C. Cir. 1999), cert. dismissed, 528 U.S.
1147 (2000), involved coextensive claims un-
der both federal law and a District of Columbia
law. The federal claim was subject to the
limitations of § 1981a(b)(3), but the analogous
claim under District of Columbia law carried
no such limitation. The jury had received no
instruction on apportioning the damages be-
tween the two claims, and the court of appeals
held that the district court had improperly lim-
ited the damages, because there was no basis
for determining how the jury had apportioned
the award. See id. at 1347-50. Further, the
court of appeals reasoned, “[w]ere we not to
treat damages under federal and local law as
fungible where the standards of liability are the
same, we would effectively limit the local
jurisdiction’s prerogative to provide greater
remedies for employment discrimination than
those Congress has afforded under Title VII.”
Id. at 1350.
This case is distinct from Martini in that
the state law undergirding Giles’s claim
contains a damages limitation provision
identical to that in § 1981a(b)(3). See TEX.
LAB. CODE ANN. § 21.2585. The similarity is
unsurprising, given the Texas Legislature’s
goal of “provid[ing] for the execution of the
policies embodied in Title I of the Americans
with Disabilities Act of 1990 and its
subsequent amendments.” Id. § 21.001(3). In
the face of the similarities in the two statutory
caps and the legislature’s practice of
replicating the federal scheme, the legislative
policy would be better served by viewing the
two caps as coextensive, not cumulative. The
court did not err in limiting Giles’s
compensatory damage award to $300,000
pursuant to § 1981a(b)(3).
C.
Giles argues that the court erred in denying
his request for back pay. Like front pay, back
pay is an equitable remedy, the award of which
we review for abuse of discretion.33 Because
it is an equitable remedy, back pay is subject to
a duty to mitigate damages. See Deffenbaugh-
Williams, 156 F.3d at 590.
The court surveyed the evidence of Giles’s
attempts to mitigate his damages and
concluded that he had failed to mitigate his
damages with respect to the back pay award,
based in particular on the fact that he could
document very little of his asserted job search.
Although Giles produced sufficient evidence to
allow front pay, he failed to produce enough
evidence to compel the court to award back
33 See Deffenbaugh-Williams v. Wal-Mart
Stores, Inc., 156 F.3d 581, 590 (5th Cir. 1998),
vacated for rehearing en banc, 169 F.3d 215 (5th
Cir.), reinstated in part, 182 F.3d 333 (5th Cir.
1999) (per curiam) (en banc); Hadley v. VAM
P.T.S., 44 F.3d 372, 376 (5th Cir. 1995).

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17
pay.34 The district court’s decision to deny
back pay is therefore within its sound
discretion.
D.
The court granted summary judgment for
GE on Giles’s workers’ compensation
retaliation claim. Giles contends the court
should have allowed the claim to proceed to
trial. We review a summary judgment de
novo, applying the same standard as did the
district court, so we view all disputed facts in
the light most favorable to the non-moving
party. See Waymire v. Harris County, 86 F.3d
424, 427 (5th Cir. 1996).
To survive a motion for summary
judgment, the non-moving party must present
sufficient evidence to support the elements of
its prima facie case. See Celotex Corp. v. Ca-
trett, 477 U.S. 317, 321-23 (1986). “Conclu-
sory allegations unsupported by specific facts
. . . will not prevent an award of summary
judgment; ‘the plaintiff [can]not rest on his
allegations . . . to get to a jury without any
significant probative evidence tending to sup-
port the complaint.” Nat’l Ass’n of Gov.
Employees v. City Pub. Serv. Bd., 40 F.3d
698, 713 (5th Cir. 1994) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249
(1986)) (modifications in original). Instead,
“Rule 56(e) . . . requires the nonmoving party
to go beyond the pleadings and by her own
affidavits, or by the depositions, answers to
interrogatories, and admissions on file,
designate specific facts showing that there is a
genuine issue for trial.” Celotex, 477 U.S. at
524 (internal quotation marks omitted).
Giles contends that the court improperly
granted summary judgment on his workers’
compensation claim, because GE never moved
for summary judgment on that issue. The rec-
ord reflects, however, that GE did seek
summary judgment on “all claims and causes
of action asserted by . . . Giles . . . ” and
argued that “there is no evidence that . . . GE
took or refrained from any action based on
Giles’s workers’ compensation claim for
benefits.” To the extent that Giles’s retaliation
claim fell outside the language of GE’s motion,
it did so because, as the district court noted,
“no citation was made to the relevant statutory
provision in either the Plaintiff’s First
Amended Complaint . . . or the Plaintiff’s
Response to Defendant’s Motion for Summary
Judgment.”35
The court granted summary judgment on
the workers’ compensation retaliation claim
because Giles failed to produce summary judg-
ment evidence establishing the nexus between
the filing of his workers’ compensation claim
and his termination. Giles apparently concedes
that his response failed to “designate specific
facts showing that there [was] a genuine issue
for trial,” as required by Celotex, but instead
argues that GE’s summary judgment motion
provided insufficient notice for him properly to
respond before summary judgment was grant-
34 Although it may seem anomalous that the
district court can view the same evidence and reach
opposing conclusionsSSthat front pay is ap-
propriate while back pay is notSSthat court’s
discretion allows for such conclusions in the in-
terest of equity. Such a result is the functional
equivalent of a reduction in both front pay and
back pay, another action well within the court’s
discretion.
35 Giles’s first amended complaint merely al-
leged that he “was subject to adverse actions as
prohibited by anti-retaliation laws because . . . he
. . . was injured on the job and filed workers’
compensation claims.”

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18
ed.
Giles unsuccessfully moved for
reconsideration, asserting the same argument
before the district court. Because Giles filed
his motion for reconsideration within ten days
of the original summary judgment order, we
treat the motion for reconsideration as a
motion to amend the judgment under FED. R.
CIV. P. 59(e). See Trust Co. Bank v. United
States Gypsum Co., 950 F.2d 1144, 1147 (5th
Cir. 1992). We review such a motion for
abuse of discretion. See Midland W. Corp. v.
FDIC, 911 F.2d 1141, 1145 (5th Cir. 1990).
Dealing first with the summary judgment,
we agree with the district court that Giles did
not carry his burden under Celotex. By failing
specifically to set forth facts that could present
a triable issue, he neglected to support his
claim sufficiently to survive summary
judgment. To the extent that he asks us to
revisit the summary judgment because GE’s
motion did not provide him with proper notice,
we treat that as an appeal of the motion to
reconsider, because the court addressed that
argument in refusing to reconsider its summary
judgment.
Likewise, we find no abuse of discretion in
the decision not to amend the summary
judgment. Given the imprecision with which
Giles framed his retaliation claim in the amend-
ed complaint, GE’s summary judgment motion
sufficiently referenced that claim when
asserting that it had taken no action in
retaliation to the filing of the compensation
claim.
GE cannot be expected to anticipate the
basis for Giles’s claim. We therefore affirm
the summary judgment on the workers’
compensation retaliation claim.
E.
In awarding damages, the court offset,
from the front pay award, an amount equal to
the sum of the LTD and disability pension
benefits Giles had already received from GE.
Giles argues that this is error, because GE
failed to plead the offset as an affirmative de-
fense under rule 8(c). GE concedes that it
failed to assert the affirmative defense36 but
argues that this should be excused. As we
have said, a court may excuse a violation of
rule 8(c) in the absence of prejudice to the
other party.
On appeal, Giles alleges no prejudice other
than the assertion that his expert was
“ambushed” by GE’s questioning about
benefits at trial. Giles was not unfairly
prejudiced by the defense, however, because
the parties each addressed t he issue before
trial.
Giles raised the issue in a motion in limine
and proceeded to object on the merits to sev-
eral of GE's trial exhibits before trial. GE filed
a brief before trial addressing Giles’s
objections and indicating its intention to seek
an offset: “According to Giles, because these
payments fall under the collateral source rule,
they cannot be introduced at trial nor can they
offset his recovery. . . . [T]he collateral source
rule does not apply.” Giles’s motion in limine
and GE’s pretrial assertion belie his asserted
prejudice. The court was well within its dis-
cretion to consider GE’s affirmative defense of
offset, notwithstanding GE’s failure properly
36 Our caselaw supports Giles’s contention that
an offset indeed is an affirmative defense. See
Rosenberg v. Trautwein, 624 F.2d 666, 670 (5th
Cir. 1980) (noting in passing “the general rule that
an offset is an affirmative defense that must be
pleaded”).

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to plead the defense.
Giles takes issue with the merits of the
decision to offset the recovery. Because the
decision to award front pay is within the dis-
cretion of the district court, so also we review
the decision to offset that award for abuse of
discretion. The district court acted well within
that discretion.
Giles baldly asserts that the collateral
source rule bars setting off the benefits against
the front pay award.37 Giles cites Davis for
the proposition that “when an employee has
bargained for a fringe benefit as additional
consideration for employment, compensation
received by the employee under that fringe
benefit should not be deducted from damages
awarded to the employee,” 18 F.3d at 1244.
Giles fails, however, to explain how that pro-
position might apply to this case.
Plainly, the benefits used to offset the front
pay were not additional, bargained-for
compensation but were instead compensation
for the injury out of which this case arises. In
seeking to apply Davis’s language to the facts
of this case, Giles misapprehends one of the
central tenets of Davis: “Properly interpreted
. . ., the collateral source rule . . . prevents
tortfeasors from paying twice for the same
injurySSa result that would achieve both over-
deterrence and overcompensation. Id. at 1244
n.21.
The collateral source rule would do exactly
thatSSGE is already obligated to pay Giles’s
disability pension and LTD benefits to
compensate for his inability to work in the
future. Failure to set those amounts off
against his front pay awardSSwhich is designed
to accomplish the same purposeSSwould
overcompensate Giles. Accordingly, the court
acted within its discretion in setting off the
benefits from the front pay award.
VI.
In conclusion, the jury’s compensatory
award is excessive, even as limited by § 1981a-
(b)(3). We therefore offer the plaintiff a
remittitur of $150,000 in compensatory dam-
ages or a new trial on compensatory damages
alone. In all other respects, we affirm the
judgment.
AFFIRMED IN PART, REVERSED IN
PART, AND REMANDED.
37 “The collateral source rule is a substantive
rule of law that bars a tortfeasor from reducing the
quantum of damages owed to a plaintiff by the
amount of recovery the plaintiff receives from other
sources of compensation that are independent of (or
collateral to) the tortfeasor.” Davis v. Odeco, Inc.,
18 F.3d 1237, 1243 (5th Cir. 1994)

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