concluding after Reeves that a prima facie case plus pretext evidence may be enough to permit a finding of discrimination, but will not always be sufficient, with the ultimate issue remaining whether the evidence in the record as a whole “creates a reasonable inference that age was a determinative factor in the actions of which plaintiff complains”
How later courts described this case
- concluding after Reeves that a prima facie case plus pretext evidence may be enough to permit a finding of discrimination, but will not always be sufficient, with the ultimate issue remaining whether the evidence in the record as a whole “creates a reasonable inference that age was a determinative factor in the actions of which plaintiff complains”
- holding that a plaintiff can avoid summary judgment in an age discrimination case only if the evidence: (1) creates a factual issue as to whether each of the employer’s stated reasons was what actually motivated the employer; and (2) creates a reasonable inference that age was a determinative factor in the actions of which plaintiff complaints
- stating that a plaintiff can avoid summary judgment when the “evidence taken as a whole (1) creates a fact issue as to whether each of the employer’s stated reasons was what actually motivated the employer and (2) creates a reasonable inference that [race] was a determinative factor in the actions of which the plaintiff complains”
- finding an award of $300,000 in mental anguish dam *252 ages under Title VII was excessive where the only evidence supporting a finding of emotional injury was the plaintiffs own testimony, and concluding that because the evidence presented supported an award no greater than $10,000, either remittitur or a new trial was required
Written by the judges who cited it.
The opinion
IN THE UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 98-60784
AHMAD A. VADIE, Doctor,
Plaintiff-Appellee-Cross-Appellant,
VERSUS
MISSISSIPPI STATE UNIVERSITY; ET AL,
Defendants,
MISSISSIPPI STATE UNIVERSITY,
Defendant-Appellant-Cross-Appellee.
Appeals from the United States District Court
for the Northern District of Mississippi
_________________________________________________________________
July 5, 2000
Before JOLLY and DeMOSS, Circuit Judges, and DOWD,* District Judge.
DOWD, District Judge:
Mississippi State University ("MSU") appeals from the final
judgment entered against it on October 1, 1998, following a jury
verdict in favor of Ahmad A. Vadie ("Dr. Vadie") in this Title VII
case alleging intentional discrimination and retaliation, and from
the district court's December 3, 1998, denial of a motion for
*
District Judge of the Northern District of Ohio, sitting
by designation.
judgment as a matter of law or, in the alternative, for a new
trial.1 Dr. Vadie appeals the district court's order of December
10, 1998, denying him reinstatement.2
I
Dr. Vadie was born in Iran but obtained a masters degree in
chemical engineering and a doctorate in petroleum engineering from
the University of Texas.3 In 1982, he accepted a position at MSU
and eventually became a tenured full professor in the Department of
Petroleum Engineering.4
In 1993, MSU's Board decided to close the Department of
Petroleum Engineering effective in 1995. MSU had a policy which
permitted displaced faculty members to be considered for open
faculty positions in other departments. Department heads were
1
MSU also appeals from an October 27, 1998, Order staying
the issue of attorney’s fees pending resolution of this appeal. We
see no need to address this matter.
2
References to volumes and pages in the record shall take
the form, e.g., "R5: 132" meaning Volume 5, page 132; references to
exhibits shall take two forms, depending upon whether the exhibit
was offered by the plaintiff ("P-#") or by the defendant ("D-#").
3
Although he had received his degree in petroleum
engineering, Dr. Vadie had all the course work necessary for a
doctorate in chemical engineering and his dissertation had been on
a chemical engineering topic.
4
Following his education, Dr. Vadie had first returned to
Iran to start his own business. He stayed there until 1979 when
the political climate forced him to flee to the United States. He
subsequently became an American citizen.
2
responsible for making final recommendations to the Dean, typically
based on faculty input.5
In April 1993, due to the announced retirement of three
professors, that number of faculty positions opened up in the
Department of Chemical Engineering.6 Dr. Vadie applied and, in a
letter to the department head, Dr. Donald Hill, dated May 3, 1993,
the chemical engineering faculty recommended Dr. Vadie for
selection, along with Drs. Rogers and Sparrow.7 Dr. Hill testified
that he was surprised by the letter because prior to its receipt he
had not detected support for Dr. Vadie. He sought out each faculty
member and asked if the letter was "a mandate to hire Dr. Vadie."
He testified that "the answer was a resounding no." R5:176.
Later, at a faculty meeting to discuss the recommendations, no one
5
Dr. Clifford George, a chemical engineering faculty
member who had served on the screening committee for the 1993
positions at issue here, testified that he understood the role of
the faculty as simply identifying which applicants, if any, had the
minimum qualifications for a given job.
6
Advertisements for the positions indicated that they were
tenure-track positions, requiring undergraduate/graduate teaching
and research experience along with a "Ph.D. in Chemical Engineering
or related areas." Rank and salary were to be commensurate with
qualifications. P-25. Dr. Hill testified that there are several
faculty ranks for tenure-track positions, beginning with the lowest
rank of assistant professor to the highest rank of full professor.
7
Dr. Rebecca Toghiani, a faculty member who had signed the
May 3rd letter, testified that the letter was intended to identify
which of the five internal candidates, if any, had the minimum
qualifications. Dr. George independently confirmed this and noted
that it was merely coincidence that there were three job openings
and three internal applicants found minimally qualified.
3
spoke up on Dr. Vadie's behalf.8 Believing that he did not
actually have full faculty support for Dr. Vadie, Dr. Hill
thereafter recommended only Rogers and Sparrow to the Dean of the
College of Engineering and to the Vice President of Academic
Affairs. Both Rogers and Sparrow were given positions. On May 20,
1993, Dr. Vadie was notified by letter from Dr. Hill that he had
not been chosen but that, pursuant to MSU policy, his application
would be held for further consideration.9
Dr. Rebecca Toghiani, a member of the chemical engineering
faculty,10 testified that after the first two hiring decisions had
been made, it came to the attention of the faculty "that [its]
recommendation had been questioned." R6:234. The faculty (except
8
Dr. Hill testified that there was generally strong
support for Dr. Rogers because he had been head of the Petroleum
Engineering Department for eight years and could make strong
contributions to the administration area in the Chemical
Engineering Department. Dr. Sparrow's candidacy, on the other
hand, was spear-headed by his close friend, Dr. Lightsey. In
addition, Dr. Sparrow had a lot of contact with undergraduate
students and had a degree that would permit him to teach most of
the undergraduate courses in the department. Dr. George
independently confirmed that this was the nature and content of the
faculty discussion.
9
Dr. Hill testified that during the first phase of the
selection process they were required to consider (and select or
reject) every internal applicant from the two departments that were
closing before they were permitted to seek outside applicants. Dr.
Vadie was rejected on this first, purely internal, round but
remained eligible for consideration along with the external
applicants. Dr. George, who served on the faculty committee which
helped screen the candidates, confirmed that this was the
procedure.
10
Dr. Toghiani and her husband (who is Iranian) had both
been hired by MSU in 1989.
4
for Dr. Hill) then wrote a letter to Robert Altenkirch, Dean of the
College of Engineering. The letter, dated September 20, 1993,
indicated the faculty's "unanimous agreement that they followed the
guidelines outlined in the relocation procedure, that they are
satisfied that they had maximum input into the process, and accept
the decision of the administration to hire or not hire the internal
faculty recommended as possible candidates in the letter of May 3,
1993 to Dr. Hill." R6:241-242;D-29.11
On April 22, 1994, the faculty of the Chemical Engineering
Department, including Dr. Hill, again wrote to Dean Altenkirch
expressing concern that it was not being appropriately heard with
respect to whether or not Dr. Vadie should join that faculty. The
faculty emphasized its desire for highly qualified colleagues and
that, because of friendships and their need to remain anonymous and
bypass personal embarrassment, it had been their intent that the
final recommendations for the position openings be made by Dr.
Hill. The faculty stated clearly that it did not want Dr. Vadie
in the chemical engineering program and that his presence would be
"highly counterproductive." It further clarified that "being
minimally qualified is not tantamount to being minimally
acceptable." D-21.
Ultimately, Dr. Vadie was not selected for any of the three
positions that had become vacant in April 1993. In fact, in June
11
Dr. Toghiani admitted, however, that the faculty had
never officially rescinded its May 3rd recommendation.
5
1994, the final position was filled by Dr. Nancy Losure, an
external applicant, who was hired as an assistant professor.12 It
is not disputed that Dr. Vadie's qualifications were superior to
those of Dr. Losure.13
Dr. Vadie appealed to MSU's Board which, on November 17, 1994,
sent him a letter reporting that it had unanimously voted to
support the University's decision. The letter stated that "the
matter is now final." P-10. The November 1994 newsletter of MSU's
chapter of the American Association of University Professors, THE
ADVOCATE, reported the non-selection and indicated that Dr. Vadie
had told THE ADVOCATE "that he will now seek a remedy in the courts."
P-19.
On January 24, 1995, Dr. Vadie filed a charge of
discrimination with the Equal Employment Opportunity Commission
("EEOC") alleging that MSU had not selected him for any of the
vacant positions because of his race and/or national origin. He
filed this lawsuit in June 1995, having received his right-to-sue
letter.
By letter dated April 24, 1995, Dr. Vadie was offered a
position as Senior Research Engineer in the Water Resources
12
The job had first been offered to Dr. Michael Harris, an
African-American who had graduated from MSU; but he had already
accepted another job elsewhere.
13
Losure, an American, had just gotten her Ph.D., had
little or no teaching experience and no research background. Even
she testified that she was no comparison to Dr. Vadie based on her
qualifications.
6
Research Institute at MSU, effective May 16, 1995. This was a
funded research position which was full-time but non-tenured.14
In August of 1995, a Chemical Engineering Department faculty
member died. This faculty member had possessed a doctorate in
chemical engineering. According to MSU, the loss of the decedent's
expertise in the department necessitated hiring someone who also
had a doctorate in chemical engineering.15 Although not possessing
the requisite degree, Dr. Vadie sought the position.16 He is of the
view that, in order to purposefully disqualify him, the
qualifications for this position were changed from requiring merely
a degree in "a related area" to requiring a Ph.D. in chemical
engineering.17 The faculty screening committee did not recommend
14
Due to this position, Dr. Vadie did not assert a claim
for lost income.
15
Dr. Hill testified that since persons without doctorates
in chemical engineering had been considered and hired for the 1993
vacancies, several faculty members felt that there were not enough
people to teach the basic subjects, that is, not enough "full-
fledged chemical engineers." R5:142. Therefore, when they
conducted their search for the 1995 position "there was renewed
emphasis on getting a hard core or at least a Ph.D. in chemical
engineering." Id. Dr. Hill admitted, however, that Dr. Vadie's
application was probably the only application on file that was
eliminated by adding the requirement of a Ph.D. in chemical
engineering. Dr. George confirmed that the faculty was concerned
that the person hired should be "real strong in chemical
engineering, because [the decedent] was that person to us."
R7:396-97.
16
Dr. Vadie’s application materials remained on file from
his 1993 application. R5:136, 143-44.
17
For the three openings in 1993, applicants were required
to have a Ph.D. in chemical engineering or a related field (such as
(continued...)
7
Dr. Vadie for the position and it was ultimately filled by Dr. Mark
Zappi, an Hispanic, who was hired as an associate professor.
On November 27, 1995, Dr. Vadie filed his second EEOC
complaint charging that MSU had not selected him for the 1995
vacancy either because of his national origin or in retaliation for
his having filed the first EEOC charge and this lawsuit.18
The case was tried to a jury which returned verdicts in Dr.
Vadie's favor, finding that MSU did not hire him in the Chemical
Engineering Department because of his race or national origin and
because of retaliation.19 The jury awarded $350,000 in compensatory
damages "for emotional pain, suffering, inconvenience, or mental
anguish." R4:799. Because of the statutory caps on compensatory
damages, 42 U.S.C. § 1981a(a)(1) & (b)(3)(D), the district judge
subsequently reduced this award to $300,000.20
MSU filed a post-judgment motion for judgment as a matter of
law and/or for a new trial. This motion was denied. Dr. Vadie
17
(...continued)
petroleum engineering -- Dr. Vadie's degree).
18
This second charge, unlike the charge relating to the
1993 positions, did not indicate race as a basis for the alleged
discrimination.
19
Although there were actually three substantive claims
(two for discrimination and one for retaliation), the jury was
given only two interrogatories relating to the claims and one
relating to damages. The district court lumped together the two
claims of discrimination, notwithstanding their separate factual
bases.
20
Dr. Vadie was also awarded interest on that sum at a rate
of 4.730% per annum.
8
filed a post-judgment motion for reinstatement to a position at
MSU. This motion was also denied. Both parties appealed.
II
On appeal, MSU contends that the district court erred in
denying its motions for judgment as a matter of law made at the
close of Dr. Vadie's case, at the close of all the evidence, and
after the verdict was returned, at which time it alternatively
sought a new trial. MSU first argues that Dr. Vadie's claim of
discrimination with respect to the 1993 faculty positions was time-
barred. MSU further asserts that, in any event, it was entitled to
judgment as a matter of law because none of Dr. Vadie's claims were
supported by sufficient evidence. Finally, MSU contends that the
compensatory damages award was excessive. Dr. Vadie, on the other
hand, appeals the district court's denial of his motion for
reinstatement.
A
We begin with the question of the timeliness of Dr. Vadie's
claim as to the 1993 position openings. Title VII requires persons
claiming discrimination to file a charge with the EEOC within 180
days after the allegedly discriminatory practice occurs. 42 U.S.C.
§ 2000e-5(e). The period begins to run from the time the
complainant knows or reasonably should have known that the
challenged act has occurred. Hamilton v. General Motors Corp., 606
F.2d 576, 579 (5th Cir. 1979), reh'g denied, 611 F.2d 882 (5th
9
Cir.), cert. denied, 447 U.S. 907, reh'g denied, 449 U.S. 913
(1980).
MSU argues that the alleged adverse employment action occurred
in May 1993 when Dr. Vadie was first notified of his non-selection.
Since his EEOC charge was not filed until January 1995, MSU is of
the view that it was not timely. Both the district court and Dr.
Vadie used November 17, 1994, the date of the letter from MSU's
Board, as the date which started the 180-day clock running. We
conclude that neither MSU nor the district court selected the
correct date.
Dr. Vadie received a letter from Dr. Hill dated May 20, 1993,
which stated: "We appreciated the opportunity to discuss with you
an available faculty position in the Department of Chemical
Engineering. While we are unable to extend an offer to you at this
time, we will continue to consider your application along with
those of other candidates, unless you indicate a desire for us not
to do so." P-8. At the time, MSU had been considering only
internal candidates, such as Dr. Vadie, who were being displaced by
the closing of the Petroleum Engineering Department. Two of the
three open positions were filled in that manner. Dr. Hill informed
Dr. Vadie that he was not one of those chosen; however, it is clear
that he was to remain under consideration as MSU broadened its
search to include outside applicants.
10
The third faculty vacancy in the Chemical Engineering
Department was ultimately filled in June 1994 by an outside
applicant, Dr. Nancy Losure. There is nothing in the record to
suggest that Dr. Vadie received any formal rejection letter at that
time; however, it is apparent that he knew Dr. Losure had been
chosen to fill the third position because he appealed to MSU's
Board of Trustees. On November 17, 1994, he received a letter from
the Board's counsel indicating that in executive session the Board
had "voted unanimously to support the position of [MSU]." P-10.
Prior to the June 1994 hiring of Dr. Losure, notwithstanding
the May 20, 1993 letter of Dr. Hill, Dr. Vadie could still have
held the legitimate expectation that he might be selected for the
third position. Once Dr. Losure was hired, Dr. Vadie knew or
should have known that he had lost his bid for any of the three
faculty vacancies. Since he believed that he had been passed over
due to considerations of race and/or national origin, it was then
that his claim accrued and the 180-day clock began to run. Dr.
Vadie's filing of his EEOC charge in January of 1995 was simply too
late.
It was error for the district court to permit Dr. Vadie's
claim of discrimination related to the 1993 position openings to
proceed. That claim should have been dismissed early on and should
never have reached the jury.
11
Accordingly, we vacate the judgment of the district court
against MSU with respect to Dr. Vadie's claim of discrimination
relating to the 1993 position openings and remand with instructions
to dismiss that claim.
B
MSU also challenges the judgment with respect to the position
vacancy in 1995. MSU is of the view that it was entitled to
judgment as a matter of law on that claim because there was
insufficient evidence to prove either discrimination or
retaliation.
"A motion for judgment as a matter of law ... in an action
tried by jury is a challenge to the legal sufficiency of the
evidence supporting the jury's verdict." Hiltgen v. Sumrall, 47
F.3d 695, 699 (5th Cir.), reh'g and suggestion for reh'g en banc
denied, 49 F.3d 730 (5th Cir. 1995). "On review of the district
court's denial of such a motion, the appellate court uses the same
standard to review the verdict that the district court used in
first passing on the motion." Id.
A jury verdict must be upheld unless "there is no legally
sufficient evidentiary basis for a reasonable jury to find" as it
did. Fed. R. Civ. P. 50(a)(1). "We test jury verdicts for
sufficiency of the evidence under the standards set forth in Boeing
Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc),
overruled on other grounds, Gautreaux v. Scurlock Marine, Inc., 107
12
F.3d 331 (5th Cir. 1997) (en banc), viewing all of the evidence and
drawing all reasonable inferences in the light most favorable to
the verdict." Scott v. University of Mississippi, 148 F.3d 493,
504 (5th Cir. 1998) (citing Rhodes v. Guiberson Oil Tools, 75 F.3d
989, 993 (5th Cir. 1996) (en banc), quoting Boeing, 411 F.2d at
374).21
1
"The 'factual inquiry' in a Title VII case is '[whether] the
defendant intentionally discriminated against the plaintiff.'"
U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 715
(1983) (quoting Texas Dept. of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981)); see also, Barnes v. Yellow Freight Systems,
Inc., 778 F.2d 1096, 1099 (5th Cir. 1985) (the question is whether
the employer's action "was discriminatory and a violation of Title
VII"). "The ultimate burden of persuading the trier of fact that
the defendant intentionally discriminated against the plaintiff
remains at all times with the plaintiff." Burdine, 450 U.S. at
253. An employer is entitled to judgment as a matter of law on
this ultimate question "if the evidence taken as a whole would not
21
Under Boeing, "there must be a conflict in substantial
evidence to create a jury question." 411 F.2d at 375. Substantial
evidence is "evidence of such quality and weight that reasonable
and fair-minded men in the exercise of impartial judgment might
reach different conclusions." Boeing, 411 F.2d at 374; see also
Krystek v. University of Southern Mississippi, 164 F.3d 251, 255
(5th Cir.1999).
13
allow a jury to infer that the actual reason for the [employer's
decision] was discriminatory." Rhodes, 75 F.3d at 994.
With respect to the 1995 discrimination claim,22 the specific
question the jury had to resolve was whether MSU's decision-makers
denied a faculty position to Dr. Vadie because of his national
origin. Dr. Vadie offered absolutely no evidence of national
origin discrimination. In fact, the record shows that the faculty
that made the decision in 1995 was ethnically diverse and the
applicant chosen over Dr. Vadie was of Hispanic origin.
The only evidence which Dr. Vadie offered is that he made a
prima facie case by establishing his Iranian ancestry. However,
once a case has been fully tried, the presumption created by a
prima facie showing "drops from the case," and "the factual inquiry
proceeds to a new level of specificity." Aikens, 460 U.S. at 715
(quoting Burdine, 450 U.S. at 255).
Viewing the evidence as a whole, as we must, there is nothing
probative anywhere in the record of the ultimate question of
national origin discrimination. Dr. Vadie argued that Dr. Zappi,
who had no teaching experience, was not qualified for the 1995
position and was certainly no match for Dr. Vadie's own record of
success in research and teaching. He further asserted that when
MSU advertised for the 1993 positions, a Ph.D. in chemical
22
We need not consider the merits of any discrimination
claim relating to the 1993 positions because, as already noted, any
such claim was time-barred.
14
engineering was not required and that the addition of such a
requirement for the 1995 position was pretextual.
We will assume, of course, that this was believed by the jury.
All that it proves, however, is that MSU's decision-makers had some
unidentifiable reason for not wanting to hire Dr. Vadie. The
evidence has no probative value with respect to the ultimate
question before the jury of whether there was discrimination based
on national origin, an essential element for Dr. Vadie to prove.
There simply is not a scintilla of evidence that Dr. Vadie’s
national origin played any role in any decision that the defendant
made with respect to him during his tenure.23 There is no
23
We have considered the application of the Supreme Court's
recent decision in Reeves v. Sanderson Plumbing Prods., No. 99-536,
2000 WL 743663 (U.S. June 12, 2000) and find that it does not
affect the law applicable to this case. Our study of Reeves
convinces us that our panel opinion in that case was simply
inconsistent with our en banc decision in Rhodes v. Guiberson Oil
Tools, 75 F.3d 989, 993-94 (5th Cir. 1993) (en banc), and that the
Supreme Court, in deciding Reeves, plainly affirmed that en banc
precedent. Indeed, in Rhodes we specifically stated:
The factfinder may rely on all the evidence in the record
to draw this inference of discrimination. In tandem with
a prima facie case, the evidence allowing rejection of
the employer's proffered reasons will often, perhaps
usually, permit a finding of discrimination without
additional evidence. Thus, a jury issue will be
presented and a plaintiff can avoid summary judgment and
judgment as a matter of law if the evidence taken as a
whole (1) creates a fact issue as to whether each of the
employer's stated reasons was what actually motivated the
employer and (2) creates a reasonable inference that age
was a determinative factor in the actions of which
plaintiff complains.
(continued...)
15
evidence in the record that the defendant ever adversely considered
23
(...continued)
75 F.3d at 994. This holding is consistent with Reeves. See,
e.g., Reeves, 2000 WL 743663 at *9 ("Thus, a plaintiff's prima
facie case, combined with sufficient evidence to find that the
employer's asserted justification is false, may permit the trier of
fact to conclude that the employer unlawfully discriminated.").
Furthermore, as the Supreme Court held in Reeves:
This is not to say that such a showing by the plaintiff
will always be adequate to sustain a jury's finding of
liability. Certainly there will be instances where,
although the plaintiff has established a prima facie case
and set forth sufficient evidence to reject the
defendant's explanation, no rational factfinder could
conclude that the action was discriminatory. For
instance, an employer would be entitled to judgment as a
matter of law if the record conclusively revealed some
other, nondiscriminatory reason for the employer's
decision, or if the plaintiff created only a weak issue
of fact as to whether the employer's reason was untrue
and there was abundant and uncontroverted independent
evidence that no discrimination had occurred.
Id. We made a similar observation in Rhodes. See 75 F.3d at 994.
We hold therefore that Rhodes is consistent with Reeves and
continues to be the governing standard in this circuit. This
appeal falls within the exception noted by Reeves and Rhodes.
Moreover, the facts of this appeal are clearly distinguishable
from the facts in Reeves. Indeed, this case falls within the
exception noted above in which the plaintiff fails to make an
adequate showing. In Reeves the Supreme Court reversed on the
basis that the appellate panel failed to take into account the
plaintiff’s evidence supporting his prima facie case when
considering the overall sufficiency of the evidence to support his
age discrimination claim. The Supreme Court noted substantial
evidence demonstrating that the employer's explanation for his
firing was patently false, id. at *7, and pointed to comments and
conduct of the defendant's supervisor reflecting an age-related
animus. Id. at *12. Here, there is no comparable evidence to call
into question MSU's 1995 hiring decision. Thus, Vadie fails to
meet the standard of Reeves that "the ultimate burden of persuading
the trier of fact that the defendant intentionally discriminated
against the plaintiff remains at all times with the plaintiff."
Id. at *6.
16
national origin with respect to any of its faculty. To the
contrary, the chemical engineering faculty was diverse.
MSU was entitled to judgment as a matter of law on this claim
and it was error for the district court to deny MSU's motion.
Accordingly, we vacate the judgment of the district court
against MSU with respect to Dr. Vadie's claim of discrimination
relating to the 1995 position opening and remand with instructions
to enter judgment in favor of MSU on that claim.
2
MSU also challenges the sufficiency of the evidence to support
a claim of retaliation with respect to the 1995 position.24 Dr.
Vadie argues that he was not selected for that position in
retaliation for his having filed charges of discrimination and for
filing this lawsuit.
Title VII makes it unlawful for an employer to discriminate
against an employee "because [that employee] has opposed any
practice made un unlawful employment practice by this subchapter,
or because he has made a charge ... under this subchapter." 42
U.S.C. § 2000e-3(a). The plaintiff has the ultimate burden of
"showing that 'but for' the protected activity, the [adverse
24
There is no requirement that a plaintiff must prevail on
any underlying claim of intentional discrimination in order to
prevail on a claim of retaliation. Similarly, evidence sufficient
to support a claim of retaliation is not necessarily sufficient to
support a claim of discrimination. Shackelford v. Deloitte &
Touche LLP, 190 F.3d 398, 405 n.4 (5th Cir. 1999).
17
employment action] would not have occurred, notwithstanding the
other reasons advanced by the defendant." McMillan v. Rust
College, Inc., 710 F.2d 1112, 1116 (5th Cir. 1983); see also Long
v. Eastfield College, 88 F.3d 300, 305 n.4 (5th Cir. 1996) ("even
if a plaintiff's protected conduct is a substantial element in a
defendant's [adverse employment] decision ..., no liability for
unlawful retaliation arises if the [same decision would have been
made] even in the absence of the protected conduct").
We look again at the record as a whole to determine whether
there is sufficient evidence to support a jury verdict of
retaliation. The ultimate question is whether a reasonable jury
could conclude that Dr. Vadie would have been selected for the 1995
faculty position had he not sued MSU. In other words, does the
evidence support a finding that "but for" Dr. Vadie's protected
activity, he would have gotten the job?
MSU asserts that Dr. Vadie would not have been selected for
the 1995 position regardless of whether or not he had engaged in
any protected activity because he did not meet one of the
requirements: namely, he did not have a doctorate in chemical
engineering. Dr. Vadie is of the view that this position
requirement was manufactured as a retaliatory means of eliminating
him from the field of applicants.
We agree that a reasonable jury, drawing all inferences in Dr.
Vadie's favor, could reach that same conclusion on the evidence
18
contained in this record, which shows that (1) after Dr. Vadie was
notified in May of 1993 that he had not been selected for any of
the three open positions, he filed a grievance with the University
Board; (2) the faculty, excluding Dr. Hill, who had the role of
making the final hiring recommendation to the Dean, wrote a letter
to the Dean of the College of Engineering in September 1993
protesting the raising of "certain questions" as to its wishes with
respect to the "relocation of tenured faculty and untenured faculty
members to the chemical engineering department" and insisting that
it was satisfied with and accepted the administration's hiring
decisions in that regard; (3) the faculty, including Dr. Hill,
wrote an even more pointed letter to the Dean dated April 22, 1994
criticizing the "rumor mill [which] continues to grind out the
rhetoric[ ]" and clearly stating that the faculty and the head of
the department "do NOT want Dr. Alex Vadie in this program[;]" (4)
although this April 1994 letter also makes reference to three
specific "Hall of Fame members" who would be "less than pleased" if
Dr. Vadie were hired, Dr. Toghiani, a faculty member who signed the
letter and who personally knew each of the three named people,
testified that she had no idea why that had been included in the
letter since there was never any discussion at any faculty meeting
about this subject; (5) Dr. Hill testified that he did not recall
who actually drafted the April 22nd letter, but Dr. Toghiani
indicated that each faculty member was give a copy prior to the
19
faculty discussion finalizing the letter's wording and was then
asked to stop by Dr. Hill's office to sign it; (6) in November of
1994, MSU's Board confirmed its support for Dr. Vadie's non-
selection for any of the 1993 position openings; (7) the November
1994 issue of the ADVOCATE reported the Board's decision and
indicated Dr. Vadie's declared intent to pursue legal remedies; (8)
Dr. Hill testified that this article had had an "emotional impact"
on the faculty; (9) in January 1995, Dr. Vadie filed his first
charge of discrimination with the EEOC; (10) in June 1995, Dr.
Vadie filed his lawsuit; (11) in August 1995, a chemical
engineering faculty member died, leaving a new opening in the
department; (12) Dr. Hill testified that the entire faculty met to
identify the qualifications to be included in the advertisement for
the position opening and specifically decided to require a
doctorate in chemical engineering, unlike the advertisements for
the 1993 job openings which required a doctorate only in a related
field; (13) as a result of this new requirement, Dr. Vadie, whose
application remained on file from 1993 and who had made known his
interest in the new job opening, was the only applicant who was
"disqualified" for the 1995 opening; (14) the list of recommended
applicants for the 1995 job given by the search committee to Dr.
Hill did not include Dr. Vadie; (15) a position that was open in
the department at the time of the trial once again did not require
a doctorate in chemical engineering; (16) MSU had a policy of
20
hiring displaced faculty members but, inexplicably, failed to apply
that policy to Dr. Vadie, a man who indisputedly had a significant
record of teaching and research at the University; and (17)
although Dr. Vadie technically did not have the requisite doctorate
in chemical engineering, he was as close to that degree as one
could get.
Examining all of this evidence in a light most favorable to
Dr. Vadie, a reasonable jury could conclude that, more likely than
not, "but for" his protected activity and the negative reaction to
it by Dr. Hill and the chemical engineering faculty, the University
would have found that Dr. Vadie's strengths greatly outweighed the
technical lack of a chemical engineering degree and would have
awarded him the 1995 position in the Chemical Engineering
Department.
Accordingly, we conclude that the district court did not err
in denying judgment as a matter of law on the retaliation claim.
The judgment of the district court against MSU on that claim is
affirmed.
C
The final challenge by MSU is to the compensatory damages
awarded to Dr. Vadie. MSU asserts that the award, even as reduced
by the district court, was excessive and contrary to the evidence.
Our review of mental anguish damages is for abuse of discretion.
Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1046 (5th Cir. 1998).
21
The jury returned a verdict of $350,000, which the district
court reduced to $300,000 in light of the statutory caps. See 42
U.S.C. § 1981a(b)(3)(D). Ordinarily, a jury verdict will be
considered excessive only if it is "contrary to right reason" or
"entirely disproportionate to the injury sustained." Eiland v.
Westinghouse Elec. Corp., 58 F.3d 176, 183 (5th Cir. 1995). Here,
the jury found that Dr. Vadie was the victim of both discrimination
and retaliation and, presumably, awarded damages based on that.
Since we have overturned any verdict of discrimination, to
withstand appeal, the $300,000 award must be able to be supported
on the evidence of injury related to the retaliation claim alone.25
Our analysis must be guided by Carey v. Piphus, 435 U.S. 247,
248 (1978), where the Supreme Court held that to recover more than
nominal damages for emotional harm there must be "proof of actual
25
On a related point, the $300,000 award might also be
sustained despite the elimination of the discrimination claim if it
could be found to include a claim for lost future income. In fact,
when the district court denied Dr. Vadie's post-judgment motion for
reinstatement, it noted that an alternative to reinstatement would
be front pay but that such an award here "would be inappropriate --
and excessive -- considering the Plaintiff's large award of
compensatory damages." The district court implied that it let
stand the large award because of the possibility that it
encompassed lost future income. The problem with this reasoning is
that Dr. Vadie has admitted that he made no claim for front pay
since he has been hired by MSU in a different capacity. In fact at
the conference which took place on the record in chambers where the
district court and counsel worked out the jury instructions, Dr.
Vadie's counsel was adamant that there was no claim for front pay
and, therefore, there should be no instruction on mitigation of
damages. Therefore, front pay cannot be used to justify the size
of the award.
22
injury" resulting from the illegal conduct. As recently discussed
in Brady v. Fort Bend County, 145 F.3d 691 (5th Cir. 1998), cert.
denied, 525 U.S. 1105 (1999), our court has "set out to clarify the
level of specificity required under Carey." Id. at 718 (citing
Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927 (5th Cir. 1996),
cert. denied, 519 U.S. 1091 (1997)). In Patterson, we addressed
two aspects of the proof necessary to support mental anguish
damages.26
First, we articulated the level of specificity
needed to prove a claim for mental damages
under Carey. We held that there must be a
"specific discernable injury to the claimant's
emotional state," Patterson, 90 F.3d at 940,
proven with evidence regarding the "nature and
extent" of the harm, id. at 938. We
acknowledged that "hurt feelings, anger and
frustration are part of life," and were not
the types of harm that could support a mental
anguish award. Id. at 940. And our language
describing the specificity standard was
unequivocal; that standard must be met before
mental anguish damages can be awarded. See
id. at 938 (holding that plaintiff "must"
present such evidence).
Second, we addressed the types of
evidence that may be used to clear that
hurdle. We observed that in proving mental
damages "a claimant's testimony alone may not
be sufficient to support anything more than a
nominal damage award." Id. at 938 (emphasis
added). We noted that Carey requires evidence
26
We noted in Patterson that although Carey addressed
damages awarded in actions brought under 42 U.S.C. § 1983, there
was no reason to confine its reasoning solely to those cases.
Rather, Carey is applied to all "cases involving federal claims for
emotional harm." Patterson, 90 F.3d at 938 n.11.
23
that "may include corroborating testimony or
medical or psychological evidence." Id. at
940 (emphasis added). Likewise, we turned to
the Equal Employment Opportunity Commission's
(EEOC) official guideline statement for
guidance. EEOC POLICY GUIDANCE NO. 915.002 §
II(A)(2) (July 14, 1992). That document
provides:
Emotional harm will not be presumed
simply because the complaining party
is a victim of discrimination. The
existence, nature, and severity of
emotional harm must be proved.
Emotional harm may manifest itself,
for example, as sleeplessness,
anxiety, stress, depression, marital
strain, humiliation, emotional
distress, loss of self esteem,
excessive fatigue, or a nervous
breakdown. Physical manifestations
of emotional harm may consist of
ulcers, gastrointestinal disorders,
hair loss, or headaches.... The
Commission will typically require
medical evidence of emotional harm
to seek damages for such harm in
conciliation negotiations.
Id. at 10-12 (footnotes omitted) (emphasis
added).
Brady, 145 F.3d at 718.27
In Brady, we cited with approval a sister circuit's "magnum
opus on the evidence needed to support compensatory damages for
emotional distress." Id. (citing Price v. City of Charlotte, 93
F.3d 1241 (4th Cir. 1996), cert. denied, 520 U.S. 1116 (1997)).
"The Price court ... conducted a comprehensive survey of circuit
27
The judgment in the instant case below was entered on
October 1, 1998, well after our decisions in Patterson and Brady.
24
case law addressing the circumstances in which a plaintiff's own
testimony was found sufficient, and the circumstances in which that
testimony was found insufficient." Brady, 145 F.3d at 718 (citing
Price 93 F.3d at 1251). The Fourth Circuit concluded:
... a plaintiff's testimony, standing alone,
can support an award of compensatory damages
for emotional distress based on a
constitutional violation; however, the
testimony must establish that the plaintiff
suffered demonstrable emotional distress,
which must be sufficiently articulated;
neither conclusory statements that the
plaintiff suffered emotional distress nor the
mere fact that a constitutional violation
occurred supports an award of compensatory
damages, In marshaling the evidence necessary
to establish emotional distress resulting from
a constitutional violation, Carey instructs us
that "genuine injury" is necessary. Carey,
435 U.S. at 264, 98 S.Ct. at 1052.
Price, 93 F.3d at 1254.
In this case, Dr. Vadie's own testimony is the sole source of
evidence on emotional injury. His brief testimony was as follows:
Q. All right. Dr. Vadie, let me ask you this:
When you did not get this job as a professor
in the Chemical Engineering Department -- you
were saying you love Mississippi State
University -- how did it affect you or how did
it make you feel so far as your worrying and
anxiety over that was concerned? Describe
that for the jury.
A. ... It destroyed me. It totally ruined me,
and I become sick, totally ill, physically,
mentally, and everything. I took many
doctors, many pills.
I did not know what to do, where to go,
what to say. I did not know whether it was
nighttime or daytime. I could not sleep for
25
months at a time. Headache, nausea. Still I
am under severe doctor surveillance because of
what they have done to me. ...
R6:263-64. Although none of Dr. Vadie's testimony was corroborated
by medical evidence or any other witness, such failure is not
necessarily fatal if the evidence is otherwise sufficient to
support an award of damages. See, e.g., Migis v. Pearle Vision,
Inc., supra ($5000 compensatory damages award upheld on the
strength of plaintiff's testimony alone).
Dr. Vadie's testimony was sufficient to support a finding of
actual injury. It was, however, insufficient to support damages of
the magnitude awarded here, especially in view of the fact that
there has been no claim for front pay. In other words, the award
is entirely disproportionate to the injury sustained. Therefore,
it was error for the district court to deny MSU's motion for a new
trial.
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. See, e.g., McDonald v.
Bennett, 674 F.2d 1080, 1092 (5th Cir.), on rehearing, 679 F.2d 415
(5th Cir. 1982).
Since the $300,000 award of compensatory damages on the
retaliation claim alone cannot withstand scrutiny, we vacate that
26
judgment. On this record, which is devoid of any medical evidence
supporting any injury and which is devoid of any specific evidence
whatsoever supporting Dr. Vadie’s broad assertions of emotional
injury, we find that an award greater than $10,000 would be
excessive. At a new trial, perhaps Dr. Vadie can make a better
record substantiating his claims of injury.28 Therefore, we will
remand for a new trial on retaliation damages unless Dr. Vadie
accepts a remittitur in the amount of $290,000, reducing the
damages award to $10,000.
D
Dr. Vadie has appealed the district court's denial of his
post-judgment motion for reinstatement. We find no error to the
extent that the district court ruled that "reinstatement" would be
inappropriate and, therefore, we affirm that ruling.29
III
For the reasons stated above, we VACATE the judgment of the
district court to the extent that it found illegal discrimination
on the basis of race and/or national origin and we REMAND with
instructions to dismiss the 1993 claim and to enter judgment in
28
MSU has also challenged various evidentiary rulings made
by the district court. We find no error in any of those rulings.
However, in the event of a new trial on remand, we see no reason
why either party could not ask the district court to reconsider its
rulings on those matters bearing on the specific question of
retaliation damages and/or mitigation of those damages.
29
As already noted, we overrule the district court's order
of December 10, 1998, with respect to its finding that the damages
award was not excessive.
27
MSU’s favor on the 1995 claim. We AFFIRM the judgment with respect
to the retaliation claim. We VACATE the compensatory damages award
of $300,000 and we REMAND for a new trial on retaliation damages
unless Dr. Vadie accepts, within twenty (20) days of the date of
the mandate, a remittitur in the amount of $290,000, reducing the
compensatory damages award against MSU to $10,000. Finally, we
AFFIRM the district court's denial of reinstatement.
28
DeMOSS, Circuit Judge, concurring in part and dissenting in part:
I concur in part II.A. of the majority opinion, which
determines that Vadie’s claim of racial or national origin
discrimination relating to the 1993 position openings was not
timely filed and should have been dismissed by the district court
and never submitted to the jury. I also concur in part II.B.1. of
the majority opinion, which determines that no reasonable jury
could conclude on the record in this case that intentional national
origin discrimination was the basis for the denial of the 1995
faculty position to Vadie and that it was error for the district
court to deny MSU’s motion for judgment as a matter of law on this
claim. I also concur in that part of part II.C. of the majority
opinion, which determines that the jury’s award of $350,000 (which
the district court reduced to $300,000 in light of the statutory
caps) as compensatory damages "for emotional pain, suffering,
inconvenience, or mental anguish" was disproportionate to the
injuries sustained and that, therefore, it was error for the
district court to deny MSU’s motion for a new trial on this ground.
Finally, I concur in part II.D. of the majority opinion, which
affirms the district court ruling that Vadie was not entitled to
reinstatement under the facts of this case.
29
I am not able to concur and therefore respectfully dissent as
to the majority’s determination in part II.B.2. that the evidence
in this case was sufficient to support the jury finding that MSU
retaliated against Vadie and as to that portion of part II.C.
holding that Vadie’s testimony as to emotional injury was
sufficient to support an award of $10,000 as damages for emotional
injuries resulting from the retaliation claim. I write, therefore,
in detail to set forth my dissenting views.
The Retaliation Claim
In his complaints filed herein, Vadie asserted two, and only
two, protected activities as the basis for his retaliation claim:
first, his filing of a charge of discrimination under Title VII
with the EEOC in January 1995, and second, his filing of his first
complaint in this lawsuit in June 1995. Regarding those two
asserted activities, Title VII provides in relevant part that "[i]t
shall be an unlawful employment practice for an employer to
discriminate against any of his employees . . . because he has made
a charge . . . or participated in any manner . . . in a[] hearing
under this subchapter." 42 U.S.C. § 2000e-3(a) (emphasis added).
A retaliation claim, therefore, has three elements: (1) the
employee engaged in an activity protected by Title VII; (2) the
employer took adverse employment action against the employee; and
(3) a causal connection exists between that protected activity and
30
the adverse employment action. See Mattern v. Eastman Kodak Co.,
104 F.3d 702, 705 (5th Cir. 1997) (citing Shirley v. Chrysler
First, Inc., 970 F.2d 39, 42 (5th Cir. 1992)). There is no dispute
in this case that Vadie’s filing of a discrimination charge with
the EEOC in January 1995 and his filing of this suit in June 1995
are protected activities. Likewise, there is no dispute in this
case that MSU’s decision not to hire Vadie to fill the faculty
vacancy that occurred in August 1995 can be considered an adverse
employment decision. The validity or not of the retaliation claim
turns then on whether Vadie proved that the adverse employment
decision was causally related to the protected activity.
It is very clear under our case law that Vadie has the
ultimate burden of showing "that ‘but for’ the protected activity,
the [adverse employment action] would not have occurred,
notwithstanding the other reasons advanced by the defendant
(employer)." McMillan v. Rusk College, Inc., 710 F.2d 1112, 1116
(5th Cir. 1983); see also Long v. Eastfield College, 88 F.3d 300,
305 & n.4 (5th Cir. 1996) ("[E]ven if a plaintiff’s protected
conduct is a substantial element in a defendant’s [adverse
employment] decision . . ., no liability for unlawful retaliation
arises if [the same decision would have been made] even in the
absence of the protected conduct.").
Dr. Vadie argues that he was not selected for the position
that became available in 1995 in retaliation for his having filed
31
charges of discrimination and for filing this lawsuit. MSU asserts
that Dr. Vadie was not selected in 1995 because he did not possess
the requisite doctorate in chemical engineering, and that this
legitimate, non-discriminatory and non-retaliatory reason would
have been applied even if Dr. Vadie had not filed his charges of
discrimination or this lawsuit. Vadie responds that MSU changed
the position requirements in 1995 solely to exclude him from
consideration; in other words, he argues that MSU’s articulated
reason for this non-selection is a mere pretext for retaliation.
From my review of this record, I am satisfied that there is no
basis whatsoever for a finding of pretext as to the doctorate in
chemical engineering requirement. The testimony from the members
of the faculty selection committee is uncontradicted that this
requirement was determined to be necessary by the faculty committee
in order to replace the academic credentials of the professor whose
death created the vacancy in 1995, that this requirement was
expressly stated in public notices about this opening, that this
requirement was routinely applied to all applications for this 1995
vacancy, that the individuals selected by the faculty selection
committee to be recommended to the Dean of the Engineering School
each satisfied this requirement of a doctorate in chemical
engineering, and that Dr. Zappi who was ultimately selected by the
Dean of Engineering did in fact have a doctorate in chemical
engineering.
32
Vadie did not produce any testimony or record evidence upon
which a jury could find that the requirement for a doctorate in
chemical engineering was false or not truthful or was not in fact
applied. Likewise, Vadie did not produce any evidence, either oral
or documentary, that the faculty selection committee that
established the requirement of a doctorate in chemical engineering
considered or talked about the facts that Vadie had filed a claim
with the EEOC or had filed this lawsuit. Each of the members of
the faculty selection committee testified that during the selection
committee’s deliberations, no one talked about Vadie, nor about
Vadie’s having filed an EEOC claim, nor about Vadie’s having filed
this lawsuit. There is, in short, no evidence or testimony that
contradicts in any way the evidence of the faculty selection
committee as to the need for the doctorate in chemical engineering
requirement and the absence of retaliatory actions insofar as Dr.
Vadie’s application was concerned. As the majority notes in part
II.B. of its opinion, "’there must be a conflict in substantial
evidence to create a jury question.’" Majority opinion at footnote
21 (quoting Boeing, 411 F.2d at 375). For the same reason that we
disposed of Vadie’s national origin discrimination claim and
concluded that such claim fits easily within the exceptions
contemplated by both Rhodes and Reeves,30 I would conclude that his
retaliation claims should also be denied.
30
See footnote 23 of Majority Opinion.
33
Given the absence of a substantial conflict as to pretext or
retaliation, I think the majority errs in relying upon inferences
that might be drawn in order for a reasonable jury to reach a
conclusion that the doctorate in chemical engineering requirement
"was manufactured as a retaliatory means of eliminating [Vadie]
from the field of applicants." See Majority opinion, part II.B.2.
The majority comes up with a laundry list of 17 items of evidence
that it claims supports a conclusion in Dr. Vadie’s favor on the
retaliation claim. The first eight items relate to events which
occurred in 1993 and 1994, prior to the filing by Vadie of his EEOC
charge in January 1995, and more critically revolve around the
initiation by Vadie of a grievance under internal procedure of the
University which he never identified as being a protected activity
under Title VII.31 I frankly disagree with the majority’s assertion
that these events, all of which occurred before Vadie engaged in
any protected activity, can nonetheless support a reasonable
inference that MSU retaliated against Vadie because he later
engaged in a protected activity.32 The next four (9-12) of these
17 items simply recite the time frame in which certain events
31
The record is completely void of any evidence that
Vadie’s internal grievance was premised upon anything made unlawful
by Title VII, and therefore does not support the inference that
Vadie’s retaliation claim could be based on this conduct.
32
Some retaliation cases have relied upon testimony
indicating a prospective threat: i.e. "If you want to keep your job
here you shouldn’t file any claim with the EEOC over this
incident." No such testimony exists in this record.
34
occurred and are absolutely neutral as to any inferences to be
drawn therefrom. The remainder of these 17 items describe
circumstances that have meaning insofar as retaliation is concerned
only if you assume that the requirement of a doctorate in chemical
engineering was a false one, or if you assume that a faculty
selection committee must have one and only one criteria for filling
faculty vacancies which cannot be changed in light of the
individual circumstances of each particular decision.
I must also register my dissent from the ultimate conclusion
of the majority set forth on page 20 of the Majority Opinion, that
a jury could reasonably find that MSU "would have found that Dr.
Vadie’s strengths greatly outweighed the technical lack of a
chemical engineering degree and would have awarded him the 1995
position in the Chemical Engineering Department ‘but for’ his
protected activity." That conclusion is directly in conflict with
the content of the April 22, 1994 letter from the faculty of the
Chemical Engineering Department to the Dean of the Engineering
School and with the November 17, 1994 letter from MSU’s Board to
Vadie, both of which are described in the majority opinion. Both
of these communications were sent prior to the date of Vadie’s
first protected activity, i.e. Vadie’s January 1995 EEOC claim, and
could not possibly reflect any retaliatory motive on the part of
the faculty selection committee in late 1995. These communications
indicate a decision on the part of the faculty that it did not want
35
Dr. Vadie in the chemical engineering program and that his presence
would be "highly counterproductive;" and a decision on the part of
the Board that it unanimously supported the faculty decision. To
conclude as the majority does that, if Dr. Vadie had not filed his
EEOC claim or filed this lawsuit he would have been awarded the
1995 position, is just flatly contradicted by these letters; and no
reasonable jury could reach such a conclusion on the basis of this
record.
Simply put, I do not believe that Dr. Vadie has put forth
sufficient evidence for the jury to use in rejecting MSU’s
proffered legitimate, non-discriminatory and non-retaliatory reason
for not selecting Dr. Vadie for the 1995 faculty position. See St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507-508 (1993); Texas
Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Finally, I note that in this case, counsel for Vadie gave only
a perfunctory discussion of the retaliation claim in his opening
argument to the jury, and in his closing argument to the jury,
counsel for Vadie did not discuss the elements of a retaliation
claim nor did he comment on evidence and testimony which would
support a finding on the retaliation claim. From my reading of
this record, I am convinced that this case was tried on the basis
of Vadie’s claims for racial or national origin discrimination and
that the retaliation claim was an incidental, tag-along claim that
counsel for Vadie never pressed either factually or legally.
36
Likewise, I note that the district court, in its order denying
MSU’s post-trial motions, did not even mention, let alone address,
MSU’s contention that the jury’s verdict with respect to
retaliation was unsupported by the evidence. Instead, the district
court stated rather succinctly "the Court is of the opinion that a
jury could reasonably conclude that Mississippi State University
discriminated against the plaintiff based on his national origin or
race." Accordingly, I register my dissent from the rationale and
reasoning utilized by the majority to breathe life into this
unavailing retaliation claim.
Emotional Damages
Early on in its discussion of damages, the majority states:
Since we have overturned any verdict of
discrimination, to withstand appeal, the $300,000
award must be able to be supported on the evidence
of injury related to the retaliation claim alone.
If the majority had truly adhered to this statement, they would
have concluded that the evidence of injury and damage resulting
from the retaliation claim is totally absent. The majority
recognizes that Vadie’s own testimony is the sole source of
evidence on emotional injury and that emotional injury is the sole
basis on which Vadie claims damages. The majority’s quotation from
Vadie’s testimony is the sum total of all testimony on emotional
injury and damages in this record. In my view, this case should be
controlled by the opinion of this Court in Brady v. Fort Bend
37
County, 145 F.3d 691 (5th Cir. 1998), cert. denied, 119 S. Ct. 873
(1999). In that case, the majority of the panel affirmed the
district court’s decision eliminating jury awards for mental
anguish damages ranging from $10,000 to $25,000. See id. at 717-
720. In Brady, we established the test for reviewing an award of
damages for mental anguish, when that award is based solely upon
the plaintiff’s own testimony. That test is:
Under Patterson, it does not matter what type of
evidence is used to satisfy Carey’s specificity
requirement, so long as that standard is
successfully met. When a plaintiff’s testimony is
particularized and extensive, such that it speaks
to the nature, extent, and duration of the claimed
emotional harm in a manner that portrays a specific
and discernable injury, then that testimony alone
may be sufficient.
Id. at 720. In my view, Vadie’s testimony in this case is just
like the testimony of the plaintiffs described in Brady, and we
should, therefore, hold as we did in Brady:
In sum, the Plaintiff’s testimony in this case is
vague, conclusory, and uncorroborated. Under
Carey, Patterson, and Price, it cannot legally
support mental anguish damages.
Id. at 720.
Not only is Vadie’s damage testimony in this case insufficient
under Carey, Patterson and Price, it clearly does not speak to any
damages whatsoever arising from the retaliation claim. I note that
the majority’s quote of Vadie’s testimony contains an ellipsis
indicating omitted text. That omitted text reads as follows:
38
I worked for six years in the Mississippi State
University and I worked very hard to get my tenure
and during that time and even after that I rejected
offers from oil industries because I wanted to be
in Mississippi State University and I wanted a
secure future. And that’s exactly what I did. But
in 1992, 1993, when because of no fault of your’s
they throw you out, they fire you, because of some
-- some problem with the department or whatever
then obviously you see no future. Everything that
you worked for for years and years and years
totally destroyed.
In context, therefore, Vadie’s testimony about emotional
damages relates to the decision of MSU to close down the Department
of Petroleum Engineering in 1992 and 1993 and the decisions made in
1993 which resulted in Vadie not being hired on in the Chemical
Engineering Department. There is no later testimony whatsoever by
Vadie as to emotional injuries or damages resulting from his
failure to be hired in 1995 as a replacement for the professor in
the Chemical Engineering Department who died, nor is there any
later testimony by Vadie as to his emotional injuries and damages
relating to his claim of retaliation. Consequently, there is no
evidence whatsoever to support any finding of emotional damages
from his retaliation claim, and I respectfully dissent from the
decision of the majority to remand for a new trial on retaliation
damages unless Vadie accepts a remittitur in the amount of
$290,000, reducing the damages award to $10,000. Likewise, I
dissent from the gratuitous statement included in the majority’s
opinion that perhaps Vadie can make a better record substantiating
his claims of injury at a new trial. In my view, Vadie has already
39
had his day in court, and his proof on both liability and damages
in connection with his retaliation claim is not sufficient.
For all the foregoing reasons, I would reverse the judgment of
the district court and render judgment that Vadie take nothing from
MSU in this cause of action.
40