Carleen Black v. Pan American Laboratories

Case: 09-51092 Document: 00511535564 Page: 1 Date Filed: 07/11/2011

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

July 11, 2011

No. 09-51092 Lyle W. Cayce

Clerk

CARLEEN BLACK

Plaintiff - Appellee Cross-Appellant

v.

PAN AMERICAN LABORATORIES, L.L.C.; PAMLAB, L.L.C.

Defendants - Appellants Cross-

Appellees

Appeals from the United States District Court

for the Western District of Texas

Before JONES, Chief Judge, and DENNIS and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Carleen Black sued her former employer, Pamlab, alleging various sex

discrimination claims and a retaliatory termination claim under Title VII, 42

U.S.C. § 2000e et seq., and the Texas Commission on Human Rights Act

(TCHRA), TEXAS LAB. CODE §§ 21.001-21.556. A jury rendered a verdict in

Black’s favor and awarded her $3,450,000 in back pay and compensatory and

punitive damages. Applying Title VII’s damages cap, the district court reduced

the jury’s award to a total of $500,000, representing $300,000 in back pay and

$200,000 in compensatory and punitive damages. Pamlab appeals, arguing that

there was insufficient evidence to support the jury’s liability and punitive

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damages findings. Black cross-appeals, arguing that the district court erred in

its application of Title VII’s damages cap. For the reasons set forth below, we

AFFIRM the jury’s verdict and the district court’s application of Title VII’s

damages cap. We REVERSE in part the jury’s back pay award and REMAND

for recalculation.

I. Facts and Proceedings

Black worked as a sales representative for Pamlab, a pharmaceutical

company, from February 2003 until her employment was terminated in April

2006. As a sales representative, Black’s job was to meet with physicians and

pharmacists and to convince them to prescribe or stock Pamlab’s products. Each

Pamlab sales representative is responsible for making office visits within an

assigned geographic sales territory.

From the beginning of her employment until June 2005, Black was

assigned a territory covering a large portion of Las Vegas, Nevada. Pamlab had

split the Las Vegas area into two sales territories along I-15, resulting in an

eastern territory and a western territory. Black was assigned the eastern

territory while Shane Livingston (“Livingston”), a male sales representative,

covered the western territory. Livingston began working the Las Vegas area

approximately three months before Black and departed in the latter part of

2004.

Black testified that when she first started at Pamlab she was told by

Pamlab’s management that she would not have a sales quota. Approximately

120 days after she began at Pamlab, however, she received a sales quota.

Livingston was also told that he would not have a sales quota, but he also

received a quota. It is undisputed that, from February 2003 to the end of 2004,

Black’s sales quota was higher than Livingston’s. Black complained to her

supervisor about her quota, who directed her complaints to Stephen Camp,

Pamlab’s Vice-President of Sales and Marketing. Black testified that, when she

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complained to Stephen Camp, he replied that the quota “shouldn’t matter to you,

[because] you’re not the breadwinner anyway.”

In June 2004, Black notified Pamlab that she planned to move to Texas

the following summer. In order to keep Black at the company, Pamlab offered

her a sales representative position in San Antonio, Texas, which Black accepted.

In June 2005, Black began working in Texas, reporting to district manager Jody

Redding.

In April 2006, Black attended Pamlab’s National Sales Meeting, a week-

long annual event held in Orlando, Florida. During this convention, Black failed

to appear when her name was called for an award at a banquet and failed to

attend a “send off” breakfast the following morning. The following week, Barry

LeBlanc (Pamlab’s CEO), Samuel Camp (Pamlab’s President), Stephen Camp,

Tracy Johnson (Pamlab’s Director of Sales for the Western United States), and

Lee Ingles (Pamlab’s Human Resources Director) met and decided to terminate

Black. On April 14, 2006, Pamlab terminated Black’s employment. Ingles

testified that Black was terminated for missing meetings at the National Sales

Meeting and for complaining about her sales territory.

Throughout her tenure at Pamlab, Black had objected to a number of

sexually charged comments made by Pamlab’s management to her or in her

presence. Black testified that Samuel Camp, Johnson, and Redding had made

sexually explicit comments about various parts of Black’s body.1 Black also

testified that Redding requested to go back with her to her hotel room at a

1

Specifically, Black testified that, during a training session where he was role-playing

a doctor client, Johnson stated: “I don’t care what you’re selling. I’ll buy it[] because I can’t

keep my eyes off your boobs.” Black also heard Redding tell another male employee that “he

wanted to know what it was like to touch [Black’s] breasts.” Another witness testified that

Samuel Camp stated that Black’s body was “rocking and hot but her face doesn’t match her

body.”

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national sales meeting. Black made informal complaints about these comments

to her supervisors (who were also the individuals who made the comments).

Following her termination, Black filed suit in Texas state court under Title

VII and the TCHRA, alleging that: (1) Pamlab discriminated against her on the

basis of gender in assigning her sales quota (“quota claim”); (2) Pamlab

discriminated against her on the basis of sex by terminating her (“termination

claim”); and (3) Pamlab retaliated against her for making complaints regarding

its discriminatory activities by terminating her (“retaliation claim”). Pamlab

removed the case to federal court and the case proceeded to a jury trial.2 After

Black presented her case-in-chief, Pamlab moved for judgment as a matter of

law (“JMOL”), which the district court denied. The jury returned a verdict in

Black’s favor on all three discrimination claims. It awarded Black: (1) $200,000

in compensatory damages for each claim; (2) $150,000 in back pay for each claim;

and (3) a total of $2,400,000 in punitive damages.

After trial, Pamlab renewed its JMOL motion, which the district court

again denied. Pamlab also filed a motion for remittitur, which the court granted

in part. Because the jury’s verdict resulted in double recovery of back pay

resulting from Black’s termination, the court reduced the $300,000 in total back

pay awards for her termination and retaliation claims to $150,000. It then

reduced Black’s total compensatory/punitive damages award to $200,000

pursuant to Title VII’s and the TCHRA’s damages cap.3 See 42 U.S.C.

§ 1981a)(b)(3); TEX. LAB. CODE § 21.2585(d). Pamlab timely appeals and Black

cross-appeals.

2

Black also raised a hostile-work environment claim, an intentional infliction of

emotional distress claim, and other theories of discrimination. The district court entered a pre-

trial order that Black take nothing on these claims. Black does not appeal this pre-trial order.

3

Although Title VII and the TCHRA contain independent damages cap provisions, we

have previously held that we view the two caps as coextensive, not cumulative. Giles v. Gen.

Elec. Co., 245 F.3d 474, 492 (5th Cir. 2001).

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II. Standard of Review

We review the district court’s denial of a renewed JMOL motion de novo.

Perez v. Tex. Dep’t of Crim. Justice, 395 F.3d 206, 215 (5th Cir. 2004). When

reviewing jury verdicts, the court views all the evidence and draws all

reasonable inferences in the light most favorable to the verdict. Wyvill v. United

Cos. Life Ins. Co., 212 F.3d 296, 301 (5th Cir. 2000). If “the facts and inferences

point so strongly in favor of [Pamlab] that a rational jury could not arrive at a

contrary verdict,” then Pamlab’s JMOL motion should be granted. Waymire v.

Harris Cnty., 86 F.3d 424, 427 (5th Cir. 1996) (quotation omitted).

“The decision to grant or deny a motion for . . . remittitur rests in the

sound discretion of the trial judge; that exercise of discretion can be set aside

only upon a clear showing of abuse.” Consol. Cos. v. Lexington Ins. Co., 616 F.3d

422, 435 (5th Cir. 2010) (quotation omitted). “A trial court abuses its discretion

when it bases its decision on an erroneous view of the law or a clearly erroneous

assessment of the evidence.” United States v. Caldwell, 586 F.3d 338, 341 (5th

Cir. 2009).

III. Discussion

Pamlab argues that the district court erred in denying its renewed JMOL

because there was insufficient evidence to support the jury’s findings of liability

on the quota, termination, and retaliation claims. It also argues that the

evidence did not support either the jury’s $150,000 back pay award for the quota

claim or the jury’s punitive damages award for all claims. Black cross-appeals

the district court’s application of Title VII’s damages cap to her award.

A. Whether Black presented sufficient evidence to support the

jury verdict on her termination claim.

Pamlab argues that there was insufficient evidence to support the jury’s

finding that it discriminated against Black on the basis of sex when it

terminated her in 2006.

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To establish a prima facie case of discrimination under Title VII and the

TCHRA, a plaintiff must show that: “(1) the plaintiff is a member of a protected

group; (2) the plaintiff was qualified for the job that was held; (3) the plaintiff

was discharged; and (4) after the employer discharged the plaintiff, the employer

filled the position with a person who is not a member of a protected group.”

Valdez v. San Antonio Chamber of Commerce, 974 F.2d 592, 596 (5th Cir. 1992).

After the plaintiff establishes a prima facie case, the burden shifts to the

employer to show a legitimate, nonretaliatory reason for the adverse

employment action. McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir.

2007). The employer’s burden is one of production, not persuasion, and does not

involve a credibility assessment. Id. at 559. The burden then shifts back to the

plaintiff to show either: “(1) that the defendant’s reason is not true, but is

instead a pretext for discrimination (pretext alternative); or (2) that the

defendant’s reason, while true, is only one of the reasons for its conduct, and

another ‘motivating factor’ is the plaintiff’s protected characteristic

(mixed-motive[s] alternative).” Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312

(5th Cir. 2004) (alteration in original); see also Smith v. Xerox Corp., 602 F.3d

320, 326 (5th Cir. 2010). Under the pretext alternative, the plaintiff “bears the

ultimate burden of proving that the employer’s proffered reason is not true but

instead is a pretext for the real discriminatory . . . purpose. To carry this

burden, the plaintiff must rebut each nondiscriminatory . . . reason articulated

by the employer.” McCoy, 492 F.3d at 557. Under the mixed-motive alternative,

if the plaintiff shows that the plaintiff’s protected characteristic was a

motivating factor, then the burden shifts to the employer to show that the

adverse employment decision would have been made regardless of the

characteristic. See Rachid, 376 F.3d at 312.

But because this case has been fully tried on the merits, we “need not

address the sufficiency of [Black’s] prima facie case, and may instead proceed

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directly to the ultimate question of whether [Black] ha[s] produced sufficient

evidence for a jury to find that discrimination has occurred.” Wyvill, 212 F.3d

at 301; see also, e.g., Palasota v. Haggar Clothing Co., 342 F.3d 569, 574 (5th Cir.

2003) (“Where a case has been fully tried . . . the panel should examine whether

the plaintiff has met his ultimate burden of proving that the employer

terminated him because of age.”). The jury stated in its verdict form that it

found “from the preponderance of the evidence that Carleen Black’s sex was a

motivating factor in Pamlab’s decision to terminate her employment.” The issue

before the court is therefore whether Black produced sufficient evidence for a

jury to conclude that her sex was a motivating factor in Pamlab’s decision to fire

her. Id.

We conclude that there was ample evidence to support the jury’s finding

of sex discrimination. Black presented evidence that several Pamlab

management members who were party to the decision to terminate her had

previously made sexist comments. Black testified that Samuel Camp told her

that women were a detriment to the company and that Black had taken a

position from a male. He also stated his concern that women “get hired on, get

married, and/or get pregnant and they leave.” Stephen Camp made similarly

charged comments when he stated that Black did not need to worry about her

quota because she was not the “breadwinner anyway.” Johnson and Stephen

Camp also made a considerable number of sexually inappropriate comments

about Black’s body and what it would be like to have sex with her. Black also

presented evidence that her immediate supervisors made sexist comments.

Redding made inappropriate comments about Black’s body and propositioned her

at a national sales meeting. Gary Waters–Redding’s direct boss–told Black that

he did not want a female in his region.

In sum, there was ample evidence by which the jury could conclude that

Pamlab had a corporate culture hostile to women, that this discriminatory

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animus extended to Pamlab’s management, and that Black’s sex was a

motivating factor in Pamlab’s decision to terminate her.4 Under the weight of

this evidence, we conclude that Pamlab has not met its burden of showing that

a “rational jury could not arrive” at a verdict in Black’s favor. The district court

did not err in denying Pamlab’s JMOL on Black’s discrimination termination

claim.

We next turn to the jury’s damages award. Under Title VII, a jury may

award a prevailing plaintiff compensatory and punitive damages. 42 U.S.C. §

1981a(a). Here, the jury awarded Black $200,000 in compensatory damages for

her termination claim. As discussed above, Black presented sufficient evidence

to support the jury verdict in her favor on her termination claim; she was

therefore eligible for a compensatory damage award. Pamlab does not contest

the amount that the jury awarded Black in compensatory damages on this claim.

We therefore affirm the jury’s $200,000 compensatory damages award for

Black’s termination claim.

Further, as we hold below, Title VII’s damages cap limits Black’s recovery

to $200,000 in total compensatory and punitive damages for all of her claims.

See 42 U.S.C. § 1981a(b). Black’s compensatory damages award for her

termination claim reaches this limit. The damages cap therefore moots Pamlab’s

arguments regarding whether sufficient evidence supported punitive damages

for Black’s claims.

Under Title VII, a jury may also award a prevailing plaintiff back pay. 42

U.S.C. § 2000e-5(g)(1). Here, the jury awarded Black $150,000 in back pay for

4

Pamlab’s assertion that it is entitled to the “same actor” inference because Stephen

Camp had hired Black does not undermine this conclusion, since a number of individuals were

involved in the decision to terminate her. Lee Ingles, Stephen Camp, Samuel Camp, Tracy

Johnson, and Barry LeBlanc were involved in the meeting where the decision to terminate

Black was made.

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her termination claim. Pamlab does not contest this award. We therefore affirm

the jury’s $150,000 back pay award for Black’s termination claim.

In addition, as the district court correctly held, the Supreme Court’s

prohibition on double recovery prevents Black from recovering back pay for both

her termination claim and her retaliation claim. EEOC v. Waffle House, Inc.,

534 U.S. 279, 297 (2002) (“[I]t goes without saying that the courts can and

should preclude double recovery by an individual.” (quotation omitted)). Because

Black could not recover additional back pay or compensatory damages for her

retaliation claim, our holding on her termination claim moots Pamlab’s

arguments as to that claim as well.

B. Whether Black presented sufficient evidence to support the

jury verdict on her quota claim.

Pamlab argues that Black did not present sufficient evidence to support

the jury verdict on her quota claim. It argues that the evidence does not support

any of the three theories Black presented at trial supporting her quota claim: (1)

that Black was the only sales representative at Pamlab with a sales quota on

Pamlab’s Foltx product (“Exclusive Quota Theory”); (2) that Pamlab promised

her that she would have no sales quota at all but later gave her a quota as an act

of discrimination (“Zero Quota Theory”); and (3) that Livingston, a male Las

Vegas-based sales representative, had a lower sales quota than Black

(“Disparate Treatment Theory”).

We decline to address whether the evidence supports an Exclusive Quota

Theory or a Zero Quota Theory because Black did not advance these theories of

recovery at trial. The precise issue presented to the jury was whether “Pamlab

discriminated against [Black] on the basis of her sex . . . by giving her a higher

sales quota than a similarly situated male employee.” To prevail on this claim,

the jury was required to find that “Pamlab gave [Black] a higher sales quota

than a similarly situated male employee.” Thus, the only quota theory about

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which the jury was instructed was the Disparate Impact Theory. Further,

Black’s counsel did not present a Zero Quota Theory or an Exclusive Quota

Theory, either in the proposed jury instructions or during closing argument.5 In

summarizing Black’s quota claim during closing argument, Black’s counsel

argued that Pamlab’s proffered non-discriminatory method for setting quotas

was pretextual and that “they arbitrarily, because she’s a woman, . . . assigned

her a higher sales quota thinking she would fail, only she didn’t. . . . [S]he had

a higher quota than any employee out there.” Counsel then repeated the

instructions given to the jurors, urging them to impose liability on Pamlab by

finding that they “gave Carleen Black a higher sales quota than a similarly

situated male employee.”

The dissent errs by making arguments on Black’s behalf which her own

lawyers failed to pursue at trial.6 Thus, even if the dissent is correct that

“[t]here are many ways to prove that an employment decision was

discriminatory” and that “comparator evidence is not necessary,” Dissent Op. at

22, the instructions here required it. Accordingly, we decline the invitation to

validate a theory of recovery abandoned at trial. Cf. Armstrong ex rel.

Armstrong v. Brookdale Univ. Hosp. & Med. Ctr., 425 F.3d 126, 138 (2d Cir.

2005) (declining to consider argument on alternate theory of negligence because

5

We note that even if the jury was instructed on an Exclusive Quota Theory, Pamlab

presented undisputed evidence that other sales representatives had Foltx quotas. The

evidence was thus insufficient to support an Exclusive Quota Theory.

6

Although Pamlab refers to a “zero-quota Quota Claim” by Black in its Renewed

Motion for Judgment as a Matter of Law and appellate briefs, our review of the trial transcript

shows that Black never presented such a claim at trial. Black’s complaint alleged that “when

Ms Black was in Las Vegas, her partner’s salary was considerably higher than Ms. Black’s

salary; he had less of a required quota.” Further, Black argued at trial that judgment as a

matter of law was inappropriate because she had shown that she was “treated differently from

a similarly situated employee,” Shane Livingston. Pamlab’s misunderstanding of Black’s

argument does not change the fact that Black waived any Title VII claim based on a Zero-

Quota Theory.

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“the abandonment of a theory of recovery is a decision well within the normal

range of strategic trial decisions and does not prevent a jury from reaching a

rational conclusion.”); Galena v. Leone, 638 F.3d 186, 201-02 (3d Cir. 2011)

(party waived arguments related to a theory not presented to the jury at trial,

where that party failed to request the court to present them in the instructions

and failed to object to their not having been presented); see also Saucier v.

Plummer, 611 F.3d 286, 288 (5th Cir. 2010) (holding that plaintiff “cannot

recover damages that she asked the jury not to award.”).

Even assuming arguendo that the Zero Quota Theory is not waived, we

cannot ignore the jury instructions, which explicitly tethered the issue to “a

similarly situated male employee” and which Black does not challenge on appeal.

In light of this, Black’s testimony that Livingston, her proffered male

comparator, had also been told that he would not have a quota but was still

given a quota is highly relevant. And because Black offered no evidence of

another comparator who was given a promise of a zero quota and was given no

quota, there was insufficient evidence to support a Zero Quota Theory based on

the instructions to the jury.

The record does, however, support the jury’s discrimination verdict under

Black’s Disparate Treatment Theory. In order to establish a claim of disparate

treatment, Black must show that she was treated differently than Livingston

“under nearly identical circumstances.” Wyvill, 212 F.3d at 304. “The

employment actions being compared will be deemed to have been taken under

nearly identical circumstances when the employees being compared held the

same job or responsibilities, shared the same supervisor or had their

employment status determined by the same person, and have essentially

comparable violation histories.” Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 260

(5th Cir. 2009). If, however, a difference between Black and Livingston

“accounts for the difference in treatment received from the employer, the

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employees are not similarly situated for the purposes of an employment

discrimination analysis.” Id. (citation omitted) (emphasis in original).

It is undisputed that Livingston and Black both: (1) had the same job

(pharmaceutical sales representative), (2) worked for Pamlab, (3) reported to the

same supervisors, and (4) sold at least some of the same drugs/pharmaceutical

products. Pamlab acknowledges the similarities between Black and Livingston,

but argues that differences in Black’s and Livingston’s territories and sales

histories accounted for the different quotas. To support its argument, Pamlab

presented the testimony of Bruce Holt, Pamlab’s Director of Sales Information

and Analytics, who stated that he set the quotas. Holt testified that a “group of

zip codes defines a territory” and that quotas were based on the prior sales in

each respective territory. Holt indicated that since there were pre-existing sales

in Black’s Las Vegas territory, a quota based on those sales would be associated

with that territory. Moreover, since the Las Vegas two territories were “totally

. . . different” and had different levels of sales, he would “expect them to have

different quotas.”

Pamlab’s argument fails because, viewing the evidence in the light most

favorable to the verdict, a jury could conclude that the differences in Black’s and

Livingston’s territories did not account for their different quotas. Although Holt

testified that he alone set the quotas, Black presented testimony that Stephen

Camp had a role in setting the quotas. Lance Whatley, national account

manager for Pamlab, testified that quotas were set by Stephen Camp and Holt.

Holt also testified that he had the authority to change a quota if the Camps “so

deemed.” As detailed above, Black presented evidence showing that Stephen

Camp made a number of sexist comments to her. Under our very deferential

standard of review, there was sufficient evidence for the jury to conclude that

Black’s higher sales quota was motivated, at least in part, by her gender. The

district court did not err in denying Pamlab’s JMOL on Black’s quota claim.

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Although there was sufficient evidence to support the jury’s verdict as to

liability on the quota claim, there was insufficient evidence to support its back

pay award. Because Black only presented sufficient evidence to prevail under

her Disparate Treatment Theory, she is only entitled to back pay equal to the

difference between her actual commissions and the commissions that she would

have earned with Livingston’s quota. The jury’s award of $150,000, however,

was calculated based on the difference between Black’s actual commissions and

what her commissions would have been if she had zero quota. On remand, the

district court should calculate a proper back pay award based on what Black’s

commission would have been if she would have had Livingston’s quota. “Because

back pay is an equitable remedy, the district court need not empanel an advisory

jury but can decide the back pay issue itself absent the parties’ agreement to the

correct amount.” West v. Nabors Drilling USA, Inc., 330 F.3d 379, 394-95 (5th

Cir. 2003) (internal quotation and citations omitted).

C. Whether the district court erred in applying Title VII’s

compensatory and punitive damages cap.

Title VII caps compensatory and punitive damages awards at $200,000.

See 42 U.S.C. § 1981a(b)(3)(C). Following Title VII’s damages cap, the district

court reduced the jury’s award of $600,000 in compensatory damages and $2.4

million in punitive damages to a total of $200,000. In her cross-appeal, Black

argues that the district court abused its discretion in applying Title VII’s

damages cap to her entire compensatory and punitive damages award as

opposed to capping each claim at $200,000, for a total of $600,000. She argues

that she suffered two kinds of harms—harm flowing from “discrimination that

did not result in termination” and harm flowing from “discrimination that did

directly result from” her termination—such that she will not obtain a double

recovery if given separate awards for each claim. She also argues that the court

should have applied the cap on a per-claim basis because her three claims “are

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separate, distinct and independent causes of action–each of which could have

been brought on its own.”

In relevant part, 42 U.S.C. § 1981a(a)(1) states that “[i]n an action brought

by a complaining party [under Title VII] . . . the complaining party may recover

compensatory and punitive damages.” However, “[t]he sum of the amount of

compensatory damages awarded under this section for future pecuniary losses,

emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of

life, and other nonpecuniary losses, and the amount of punitive damages

awarded under this section, shall not exceed, for each complaining party . . .

$200,000.” 42 U.S.C. § 1981a(b)(3).

This issue is one of first impression in the Fifth Circuit. However, several

of our sister circuits have addressed the issue of whether Title VII’s damages cap

applies on a “per claim” or a “per party” basis. In Hudson v. Reno, the Sixth

Circuit held that the plain language of the statute dictated applying the cap on

a “per party” basis:

Under the plain language of the statute, the cap on compensatory

damages applies to each complaining party in an “action”. An

“action” is simply a “lawsuit brought in court.” Similarly, the

Federal Rules of Civil Procedure use the term “action” or “civil

action” to describe all claims for relief alleged in a single lawsuit.

Put simply, the § 1981a caps apply to each party in an action, not to

each claim, and there is nothing in the language of the statute to

indicate otherwise. The face of the statute is conclusive and this is

the reading of it that the Court must apply.

130 F.3d 1193, 1200 (6th Cir. 1997) (internal citations omitted), abrogated on

other grounds, Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 847-48

(2001). Other courts have uniformly held that Title VII’s damages cap applies

to each party in an action, not to each claim. See Fogg v. Ashcroft, 254 F.3d 103,

106-08 (D.C. Cir. 2001); Smith v. Chi. Sch. Reform Bd. of Trs., 165 F.3d 1142,

1150 (7th Cir. 1999) (agreeing with Sixth Circuit’s holding that “the cap applies

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per plaintiff, per suit (rather than per claim)”); Baty v. Willamette Indus., Inc.,

172 F.3d 1232, 1245-46 (10th Cir. 1999) (same).

We find the reasoning of our sister circuits compelling and hold that the

plain language of § 1981a(b)’s cap applies to each party in an action. Because

the plain meaning of the statute dictates this result, we need not address Black’s

other arguments in support of her reading of the statute. Dunn-McCampbell

Royalty Interest, Inc. v. Nat’l Park Serv., 630 F.3d 431, 438 (5th Cir. 2011)

(“[W]hen the plain language of a statute is unambiguous and does not lead to an

absurd result, our inquiry begins and ends with the plain meaning of that

language.” (quotation omitted)). For the purposes of Title VII’s damages cap, the

relevant “unit of accounting is the litigant, not the legal theory.” Smith, 165

F.3d at 1150. Because the district court reduced Black’s damages based on a

correct interpretation of § 1981a, it did not err in reducing Black’s damages.

IV. Conclusion

For the foregoing reasons, the jury’s $150,000 back pay award for Black’s

quota claim is REVERSED and REMANDED for recalculation. The remainder

of district court’s judgment is AFFIRMED.

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DENNIS, Circuit Judge, dissenting in part and specially concurring in part.

A jury found that Carleen Black’s former employer, Pamlab, LLC,

discriminated against her on the basis of her sex, in violation of Title VII, by

assigning Black a sales quota, which limited the commissions that Pamlab paid

her for selling Pamlab’s pharmaceutical products. The jury also found that

Pamlab would not have made the same decision regarding Black’s sales quota

in the absence of the impermissible motivating factor of Black’s sex.

Accordingly, the jury awarded Black back pay for her lost commissions due to

the discriminatory sales quota, and the district court sustained that award.

Unlike the majority, I would uphold the jury’s back pay award also.

It is undisputed that if the evidence was adequate for a reasonable jury to

find that Pamlab would not have assigned Black any sales quota, absent

discrimination, the back pay award should be sustained. Based on Reeves v.

Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), the following two

categories of evidence alone are adequate to support this finding: (1) Black

established a prima facie case of discrimination, viz., there was direct evidence

that the decision to give Black a sales quota was motivated by her sex; and (2)

there was sufficient evidence for the jury to disbelieve Pamlab’s

nondiscriminatory explanation for why it assigned Black a sales quota, viz., that

it assigned sales quotas based on a neutral formula derived from prior sales: As

Pamlab now concedes, there was evidence that Samuel Camp, Pamlab’s

President, and his son, Stephen Camp, Pamlab’s Vice President of Sales and

Marketing, had the authority to adjust sales quotas; also, Pamlab did not

explain how its neutral formula led to Black’s having a sales quota, and yet,

numerous male employees had no sales quotas. Moreover, there was additional

evidence that Samuel Camp and Stephen Camp were motivated by sex-based

animus and were principally responsible for Black’s discriminatory sales quota.

On a substantially similar record, the Reeves Court concluded that it was

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“apparent” that there was adequate evidence to sustain the jury’s finding of

discrimination. It is equally apparent here that there was adequate evidence to

support a finding that absent discrimination, Black would not have had any

sales quota; and it is undisputed that the jury’s back pay award should be

sustained if there was adequate evidence to support such a finding. Therefore,

I respectfully dissent from Part III.B of the majority’s opinion, which concludes

that the back pay award should be reversed.

Instead of addressing this issue, the majority has decided that neither the

district court nor the parties actually understand which theories of

discrimination were presented to the jury. The majority argues that Black did

not advance at trial the theory that absent discrimination, Pamlab would not

have assigned her any sales quota. See Majority Op. at 9-10. However, it is

undisputed that Black advanced this theory: Indeed, Pamlab has consistently

conceded that Black based her discriminatory quota claim on the fact that she

was assigned any sales quota because of her sex.1 Moreover, Pamlab

acknowledges that the district court understood Black to have advanced a no-

quota theory when the court upheld the jury’s back pay award based on a

calculation of the commissions that Black would have received had she been

given “quota-less commissions.” See Pamlab Br. 19 (“[E]ven the Trial Court’s

Order denying Pamlab’s post-trial motions recognized that [the jury] could arrive

1

See Defs.’ Renewed Mot. for J. as a Matter of Law & Alternative Mot. for New Trial 2

(“[Black] first argues that her having a quota in the first place is discriminatory due to the

alleged zero-quota promise by Stephen Camp . . . .”); id. at 2-5 (discussing the evidence

supporting Black’s zero-quota theory); Pamlab’s Br. 13 (“Black advanced three theories at trial

supporting her quota-based claim discrimination/retaliation claim. Specifically, she testified

. . . [that] she should not have had any . . . sales quota whatsoever (her ‘Zero-Quota’ theory).”);

id. 17 (“[Black’s] ‘zero-quota theory’ is based upon an alleged promise Stephen Camp made

before Black was hired.” (citing R. at 3247, 3259)); Pamlab’s Br. 3 (“Black advanced three

theories at trial to support her quota-based discrimination/retaliation claim: . . . she should

not have had any . . . sales quota whatsoever (her “Zero-Quota” theory).”); id. 3-4 (“The

Zero-Quota theory was based on an alleged promise by Stephen Camp that Black would have

no quota . . . .” (citing R. at 3247, 3259)).

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at a $150,000 number only if it applied ‘quota-less commissions.’” (quoting R. at

2647)). There is simply nothing in the record to support the majority’s sudden

revision of the entire trial.2 No one can seriously doubt that the zero-quota

theory was presented to the jury: One of the central pillars in Black’s quota

claim was the fact that Pamlab executives promised her that she would not have

a sales quota when they hired her, and yet, she was later assigned a sales quota;

Pamlab unsuccessfully attempted to persuade the jury in its closing statement

to discount the argument that the no-quota promise demonstrated that Black

would not have had a sales quota absent discrimination; and the district court,

which presided over a three-day trial, recognized Black’s zero-quota theory when

it sustained the jury’s back pay award.

Moreover, the majority’s argument—that the jury’s finding that “Pamlab

gave [Black] a higher sales quota than a similarly situated male employee” can

only mean that the jury found that Black’s sales quota was discriminatory

insofar as it was higher than that of Shane Livingston, a male Pamlab

employee—misreads the jury’s verdict. There is no question that the jury’s

finding that “Pamlab gave [Black] a higher sales quota than a similarly situated

male employee” meant that the jury found that Pamlab gave Black a higher

sales quota than it would have given a male employee in her situation. Indeed,

we know the jury found that absent discrimination, Pamlab would not have

given Black a sales quota because, as Pamlab concedes, the jury calculated the

back pay award based on Black having no sales quota. Pamlab Br. 19. The

majority’s mistaken view of the jury’s verdict is not faithful to what it correctly

recognizes is the “very deferential standard of review” that we must apply to a

2

The majority’s only support is a remark by Black’s attorney in her closing statement

that Pamlab “‘assigned [Black] a higher sales quota.’” Majority Op. 10. Obviously, though,

anything above zero is “higher” and it is absurd to say that Black’s attorney abandoned a

central theory of her case with that single remark.

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jury’s verdict. Majority Op. 12; see, e.g., Garcia v. City of Houston, 201 F.3d 672,

675 (5th Cir. 2000) (“We give great deference to a jury’s verdict . . . .”).

Additionally, I concur in the majority’s holding that Title VII’s cap on

compensatory and punitive damages is properly applied here to limit Black’s

total recovery for such damages because, under the familiar rules of claim

preclusion, Black could not have brought her claims in separate lawsuits. I

write separately to clarify that in a case in which the plaintiff has raised claims

that, under the rules of claim preclusion, could have been brought in separate

suits, the damages cap should be applied separately to each distinct claim or

each related group of claims. This will avoid the absurd result that would ensue

from applying Title VII’s damages cap to limit the total recovery for all of the

plaintiff’s claims—that is, it will avoid encouraging litigants with distinct Title

VII claims from bringing separate lawsuits to recover the maximum statutory

damages available to them, which would waste judicial resources and

unnecessarily run up attorney’s fees. Accordingly, I concur in the majority’s

opinion in Part III.C for these reasons.

I.

From 2003 to 2006, Carleen Black worked as a sales representative for

Pamlab, which manufactures and distributes pharmaceutical products. During

that time, Black endured a litany of sexually inappropriate comments from

Pamlab executives, including the company’s president, Samuel Camp, and his

son, Stephen Camp, who was Pamlab’s Vice President of Sales. Notably, during

her first training session, Samuel Camp asked Black if she planned to have more

children and when she said “no” he responded, “Well, good, because usually

females get hired on, get married, and/or get pregnant and they leave us”; at

that same training session, Samuel Camp said that “women were a detriment

to the company” and that Black “was taking a position from a male”; and on

numerous occasions, Pamlab executives made sexually-derogatory comments

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about Black—for instance: Tracy Johnson, Pamlab’s Director of Sales for the

Western United States, said to Black in front of other Pamlab employees, “I don’t

care what you’re selling. I’ll buy it, because I can’t keep my eyes off your boobs”;

Jody Redding, a district manager for Pamlab, was heard to say about Black,

“love the rack,” “[p]robably they’re bought and paid for,” and “[t]hey’re not real”;

during a company retreat, Redding asked Black in front of other Pamlab

employees if he could come back to Black’s hotel room with her; Stephen Camp

was heard making comments about Black’s “tits” and saying about Black, “Great

body, but [I] wouldn’t want to look at her while I’m having sex with her.” Black

complained frequently about these comments to her superiors at Pamlab; but her

complaints were met with no response. Shortly after a national sales meeting

at which Pamlab honored Black with an award for her outstanding sales figures,

Pamlab abruptly and unexpectedly terminated Black.

Black sued Pamlab and the case was tried to a jury on three claims under

Title VII.3 Specifically, those claims were: (1) that Pamlab terminated Black

because of her sex; (2) that Pamlab terminated Black in retaliation for her

sexual harassment complaints; and (3) that Pamlab discriminated against Black

on the basis of her sex by assigning her a sales quota.

With regards to her third claim, Black asserted that when she interviewed

for the job with Pamlab, several Pamlab executives, including Stephen Camp,

told her that in addition to a base salary, she would be paid commissions based

on her sales. These executives told her that she would not have a sales quota

that she would be required to reach before being paid commissions, viz., she

3

Black also brought parallel state-law claims under the Texas Commission on Human

Rights Act (THRCA), Tex. Labor Code § 21.001 et seq., but the parties do not discuss the

THRCA claims in their briefs and limit their arguments solely to Title VII. For the purposes

of this appeal, there is no difference between the state and federal law. See Giles v. Gen. Elec.

Co., 245 F.3d 474, 492 (5th Cir. 2001) (the THRCA “damages limitation provision,” Tex. Labor

Code § 21.2585, is “identical to that in [Title VII,] § 1981a(b)(3)”).

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would receive commissions starting from her first dollar of sales. However, four

months into her job, Black discovered that she had been given a $150,000 sales

quota. This meant that Black was not being paid commissions on her first

$150,000 in sales. Black also discovered that Shane Livingston, a Pamlab sales

representative working in an adjacent sales territory in Las Vegas, had a

significantly lower sales quota. When Black complained to Stephen Camp about

her quota, he told her, “Well, it shouldn’t matter to you, you’re not the

breadwinner anyway[,] . . . isn’t your husband the one that makes the money.”

Black also spoke with Richard Rypkema, the head of Pamlab’s Sales Information

and Analytics department, who told her that he had reviewed the quotas directly

with Samuel Camp, and that they, Rypkema and Camp, felt that Black’s quota

was fair. At trial, Pamlab contended that it set sales quotas based on a non-

discriminatory formula derived from prior sales. However, Pamlab did not show

how its formula led to Black’s quota, nor did it explain how that formula resulted

in no sales quotas for several other male Pamlab sales representatives; and

Black introduced evidence that Stephen Camp and Samuel Camp had authority

to dictate the sales quotas at Pamlab.

The jury returned a verdict in Black’s favor on all three claims. As

relevant here, the jury found that Black’s sex was a motivating factor in

Pamlab’s decision to assign her a sales quota. The jury also found that Pamlab

would not have made the same decision regarding Black’s quota if it had not

considered Black’s sex. For each of Black’s three claims—discriminatory

termination, retaliatory termination, and discriminatory sales quota—the jury

awarded Black $200,000 in compensatory damages and $150,000 in back pay.

The jury also awarded $2,400,000 in total punitive damages.

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Following the jury’s verdict, Pamlab renewed its earlier motion for

judgment as a matter of law under Federal Rule of Civil Procedure 50,4 and

made an alternative motion for a new trial. Pamlab argued, as relevant here,

that the evidence was insufficient to support the jury’s verdict and back pay

award for Black’s quota claim. Pamlab also argued that the jury’s compensatory

and punitive damages award should be reduced pursuant to Title VII’s damages

cap, which limits compensatory and punitive damages “for each complaining

party” in “an action brought” under Title VII. See 42 U.S.C. § 1981a(a)(1), (b)(3).

Pamlab took the position that the cap should be applied to limit Black’s total

recovery for compensatory and punitive damages for all of Black’s claims, and

Black argued that the cap should be applied separately to each of her three

claims, so that she could recover the maximum amount allowed for each claim.

The district court denied Pamlab’s motion for judgment as a matter of law

in part, upholding the jury’s verdict and back pay award for Black’s quota claim.

The court concluded that the evidence was sufficient for the jury to find that

Pamlab discriminated against Black on the basis of her sex when it assigned her

a sales quota because there was evidence that: Stephen Camp had promised

Black that she would have no quota; Pamlab executives could manipulate the

quotas; and when Black complained to Stephen Camp about her quota, he told

her “don’t worry about it—you’re not the breadwinner in your family.” The

district court also sustained the jury’s $150,000 back pay award for the quota

claim. It determined that the jury could reasonably have found that based on

Pamlab’s commissions formula applied to Black’s gross sales, without a sales

4

“Under Rule 50, a court should render judgment as a matter of law when ‘a party has

been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable

jury to find for that party on that issue.’” Reeves, 530 U.S. at 149 (quoting Fed. R. Civ.

P. 50(a)).

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quota, Black’s commissions would have totaled $150,000 for the time that she

worked for Pamlab.

The district court also granted Pamlab’s motion in part and reduced

Black’s compensatory and punitive damages award to $200,000 based on Title

VII’s damages cap. See 42 U.S.C. § 1981a(b)(3)(C) (“[I]n the case of [an

employer] who has more than 200 and fewer than 501 employees in each of 20

or more calendar weeks in the current or preceding calendar year,” the cap on

compensatory and punitive damages is “$200,00.”). The district court looked to

the plain language of the statute, which applies the cap “for each complaining

party,” and noted that the cap did not apply “to each claim asserted by a party.”

Citing decisions from other circuits that have held that in a case with multiple

Title VII claims, the cap applies per party and not per claim, the district court

only allowed Black to recover the maximum amount under the cap for her suit.

Pamlab appealed and Black cross-appealed.

II.

Contrary to the majority, I believe that there was adequate evidence to

support the jury’s back pay award for Black’s claim that Pamlab discriminated

against Black on the basis of her sex in violation of Title VII by assigning Black

a sales quota, which limited the commissions she was paid. The jury found that

Black’s sex was a motivating factor in Pamlab’s decision to assign Black a sales

quota.5 The jury also found that Pamlab would not have made the same decision

regarding Black’s quota absent the impermissible motivating factor of Black’s

5

Title VII makes it “an unlawful employment practice . . . to discriminate against any

individual with respect to [her] compensation, terms, conditions, or privileges of employment,

because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Title VII also provides that

“an unlawful employment practice is established when the complaining party demonstrates

that . . . sex . . . was a motivating factor for any employment practice, even though other

factors also motivated the practice.” Id. § 2000e-2(m).

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sex, and awarded Black $150,000 in back pay.6 The district court sustained the

jury’s back pay award for the quota claim based on a calculation of Black’s

commissions without any sales quota. Pamlab concedes that if the evidence was

adequate to support a finding that Black would not have had any quota absent

discrimination—what Pamlab and the majority refer to as Black’s “zero quota

theory”—the jury’s $150,000 back pay award is supported by adequate evidence.7

Therefore, if there was adequate evidence for a reasonable jury to find that

absent discrimination, Pamlab would not have given Black any sales quota, the

jury’s back pay award should be sustained.

A.

i.

Our inquiry into the adequacy of the evidence supporting a jury’s verdict

in a discrimination case, such as this, is controlled by Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133 (2000). See Russell v. McKinney Hosp.

Venture, 235 F.3d 219, 222 & 223 n.4 (5th Cir. 2000) (“Reeves is the authoritative

statement regarding the standard for judgment as a matter of law in

6

Title VII allows for back pay damages, “[i]f the court finds that the [employer] has

intentionally engaged in or is intentionally engaging in an unlawful employment practice.”

42 U.S.C. § 2000e-5(g)(1). In a case, such as this, where “the complaining party demonstrates

that [an impermissible motivating factor such as sex] was a motivating factor for any

employment practice,” id. § 2000e-2(m), an employer will avoid liability for back pay damage

if it “demonstrates that [it] would have taken the same action in the absence of the

impermissible motivating factor,” id. § 2000e-5(g)(2)(B).

7

In its renewed motion for judgment as a matter of law, Pamlab admitted that if there

was “sufficient evidence of liability for [Black’s] zero-quota Quota Claim, Defendants

acknowledge that the [district court’s] calculation could provide a proper non-quota basis to

support the amount of the award for a motion for judgment as a matter of law.” For the first

time on appeal, Pamlab argues that even if the evidence supported a finding that Black would

have received no quota absent discrimination, the evidence is still insufficient to support the

amount of the back pay award because Bruce Holt was only asked about Pamlab’s

commissions formula for 2004 and 2005, and not for 2003. Pamlab waived this argument,

however, by not raising it below. Martco Ltd. P’ship v. Wellons, Inc., 588 F.3d 864, 877 (5th

Cir. 2009) (“[A]rguments not raised before the district court are waived and cannot be raised

for the first time on appeal.”).

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discrimination cases.”). Reeves involved a claim that Sanderson Plumbing

Products, Inc., had violated the Age Discrimination in Employment Act (ADEA),

29 U.S.C. § 621 et seq., by firing Roger Reeves because of his age. 530 U.S. at

137-38.8 Reeves, who was 57 years old, had been a supervisor in a department

at Sanderson known as the “Hinge Room,” and was responsible for “recording

the attendance and hours of those under his supervision, and reviewing a weekly

report that listed the hours worked by each employee.” Id. Joe Oswalt, who was

in his mid-30s, supervised another part of the Hinge Room; and Russell

Caldwell, who was 45, supervised both Oswalt and Reeves. “Caldwell informed

Powe Chesnut, the director of manufacturing and the husband of company

president Sandra Sanderson, that ‘production was down’ in the Hinge Room

because employees were often absent and were ‘coming in late and leaving

early.’” Id. at 137-38. “Chesnut ordered an audit of the Hinge Room’s

timesheets,” and “[a]ccording to Chesnut’s testimony, that investigation revealed

‘numerous timekeeping errors and misrepresentations on the part of Caldwell,

Reeves, and Oswalt.’” Id. at 138. “Following the audit, Chesnut,” and two other

Sanderson executives, “recommended to company president Sanderson that

[Reeves] and Caldwell be fired. . . . Sanderson followed the recommendation and

discharged both [Reeves] and Caldwell.” Id.

Reeves sued, claiming that Sanderson fired him because of his age, in

violation of the ADEA, and the case was tried to a jury. Id. Sanderson

“contended that it had fired [Reeves] due to his failure to maintain accurate

8

Although Reeves involved a claim under the ADEA, it controls this Title VII case. The

Reeves Court assumed without deciding that “the McDonnell Douglas framework, developed

to assess claims brought under . . . Title VII of the Civil Rights Act of 1964, [42 U.S.C. §

2000e-2(a)(1)], also applies to ADEA actions,” id. at 142, and went on to decide the case within

the context of the McDonnell Douglas framework. The Supreme Court and this court have

applied Reeves in the context of a Title VII case. See, e.g., Burlington N. & Santa Fe Ry. Co.

v. White, 548 U.S. 53, 70 (2006); Laxton v. Gap Inc., 333 F.3d 572 (5th Cir. 2003).

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attendance records, while [Reeves] attempted to demonstrate that [Sanderson’s]

explanation was pretext for age discrimination,” by “introduc[ing] evidence that

he had accurately recorded the attendance and hours of the employees under his

supervision, and that Chesnut, whom Oswalt described as wielding ‘absolute

power’ within the company, had demonstrated age-based animus in his dealings

with” Reeves. Id. (citation omitted). The jury returned a verdict for Reeves,

finding that “age was a determinative or motivating factor in the decision to

terminate him.” Id. at 138-39 (internal quotation marks omitted). Sanderson

renewed its earlier motion for judgment as a matter of law, which the district

court denied. Id. at 139. However, the Court of Appeals reversed, “holding that

[Reeves] had not introduced sufficient evidence to sustain the jury’s finding of

unlawful discrimination.” Id. (citing 197 F.3d 688, 694 (5th Cir. 1999)). The

Court of Appeals said that the fact that Reeves had “offered sufficient evidence

for ‘a reasonable jury [to] have found that [Sanderson’s] explanation for its

employment decision was pretextual’” was not enough to sustain the jury’s

finding of intentional discrimination. Id. (quoting 197 F.3d at 693).

The Supreme Court reversed and upheld the jury’s verdict. Id. at 154.

The Court reviewed the evidence within the familiar framework explained in

McDonnell Douglas v. Green, 411 U. S. 792 (1973). Id. at 142. Under this

framework, “the plaintiff must [first] establish a prima facie case of

discrimination.” Id. at 142. Once the plaintiff meets this burden, the employer

next bears the burden “‘to produc[e] evidence of a legitimate, nondiscriminatory

reason’” for its challenged employment practice. Id. (alteration in original)

(quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U. S. 248, 254 (1981)). If the

employer meets this burden, “‘the McDonnell Douglas framework—with its

presumptions and burdens’—disappear[s], and the sole remaining issue” is

whether the plaintiff has met his “‘ultimate burden of persuading the trier of fact

that the defendant intentionally discriminated against’” him. Id. at 143 (quoting

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St. Mary’s Honor Cntr. v. Hicks, 509 U. S. 502, 510 (1993); Burdine, 450 U. S. at

253)). The Reeves Court explained that “the plaintiff may attempt to establish

that he was the victim of intentional discrimination “‘by showing that the

employer’s proffered explanation is unworthy of credence,’” because “[i]n

appropriate circumstances, the trier of fact can reasonably infer from the falsity

of the explanation that the employer is dissembling to cover up a discriminatory

purpose.” Id. (quoting Burdine, 450 U. S. at 253). That is, “once the employer’s

justification has been eliminated, discrimination may well be the most likely

alternative explanation, especially since the employer is in the best position to

put forth the actual reason for its decision.” Id. at 147-48. The Court noted that

in deciding “whether the defendant’s explanation is pretextual,” the jury “may

still consider the evidence establishing the plaintiff’s prima facie case ‘and

inferences properly drawn therefrom.’” Id. at 143 (quoting St. Mary’s Honor

Cntr., 509 U. S. at 511; Burdine, 450 U. S. at 253).

The Court concluded that the Court of Appeals had erred in setting aside

the jury’s finding because, in “‘determin[ing] whether Reeves presented

sufficient evidence that his age motivated [Sanderson’s] employment decision,’

. . . [the lower court had] ignored the evidence supporting [Reeves’] prima facie

case and challenging [Sanderson’s] explanation for its decision.” Id. (quoting 197

F.3d at 693). The Supreme Court unanimously held that “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.” Id. at 148; see also id. at 154 (Ginsburg, J.,

concurring) (“The Court today holds that an employment discrimination plaintiff

may survive judgment as a matter of law by submitting two categories of

evidence: first, evidence establishing a ‘prima facie case,’ as that term is used in

[McDonnell Douglas Corp.]; and second, evidence from which a rational

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factfinder could conclude that the employer’s proffered explanation for its actions

was false.”).

The Court went on to decide that the evidence was adequate to sustain the

jury’s verdict. Id. at 151-54. According to the Court, Reeves had met his burden

of establishing a prima facie case by showing that “(i) at the time he was fired,

he was a member of the class protected by the ADEA . . . , (ii) he was otherwise

qualified for the position of Hinge Room supervisor, (iii) he was discharged by

[Sanderson], and (iv) [Sanderson] successively hired three persons in their

thirties to fill [Reeves’] position.” Id. at 142. The Court also explained that

Reeves had “creat[ed] a jury issue as to the falsity of [Sanderson’s] explanation.”

Id. at 151. Sanderson had argued “that [Reeves] was fired because of his failure

to maintain accurate attendance records” and for “fail[ing] to discipline absent

and late employees.” Id. at 142, 143-44. In response, Reeves “offered evidence

that he had properly maintained the attendance records”: Reeves and Oswalt

“testified that the company’s automated time clock often failed to scan

employees’ timecards, so that the timesheets would not record any time of

arrival,” in which case Reeves and Oswalt “would visually check the

workstations and record whether the employees were present at the start of the

shift,” and if they were, Reeves and Oswalt would record the starting time of the

shift on the employees’ timecard. Id. at 144-45. Also, Reeves had “cast doubt on

whether he was responsible for any failure to discipline late and absent

employees”: Reeves testified that “disciplinary writeups were based on the

monthly reports, which were reviewed by Caldwell,” and “Sanderson admitted

that Caldwell . . . was responsible for citing employees for violations of the

company’s attendance policy”; Reeves also testified that Chesnut told him he was

fired for not reporting the absence of an employee on two days when Reeves was,

in fact, in the hospital, and Reeves “stated that on previous occasions” when an

employee’s hours had been misreported, “the company had simply adjusted those

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employees’ next paychecks to correct the errors.” Id. at 145. According to the

Court, this evidence met its test that “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.” Id. at 148.

Nonetheless, the Court went on to explain that “it [was] apparent that

[Sanderson] was not entitled to judgment as a matter of law” because “in

addition to establishing a prima facie case of discrimination and creating a jury

issue as to the falsity of the employer’s explanation, [Reeves] [had] introduced

additional evidence that Chesnut was motivated by age-based animus and was

principally responsible for [Reeves’] firing.” Id. at 151. The Court explained this

“additional evidence” as follows:

[Reeves] testified that Chesnut had told him that he “was so

old [he] must have come over on the Mayflower” and, on one

occasion when [Reeves] was having difficulty starting a machine,

that he “was too damn old to do [his] job.” According to [Reeves],

Chesnut would regularly “cuss at me and shake his finger in my

face.” Oswalt, roughly 24 years younger than [Reeves], corroborated

that there was an “obvious difference” in how Chesnut treated them.

He stated that, although he and Chesnut “had [their] differences,”

“it was nothing compared to the way [Chesnut] treated [Reeves].”

Oswalt explained that Chesnut “tolerated quite a bit” from him even

though he “defied” Chesnut “quite often,” but that Chesnut treated

[Reeves]“[i]n a manner, as you would . . . treat . . . a child when . .

. you’re angry with [him].” [Reeves] also demonstrated that,

according to company records, he and Oswalt had nearly identical

rates of productivity in 1993. Yet [the defendant employer]

conducted an efficiency study of only the regular line, supervised by

[Reeves], and placed only [Reeves] on probation. Chesnut conducted

that efficiency study and, after having testified to the contrary on

direct examination, acknowledged on cross-examination that he had

recommended that [Reeves] be placed on probation following the

study.

Further, [Reeves] introduced evidence that Chesnut was the

actual decisionmaker behind his firing. Chesnut was married to

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Sanderson, who made the formal decision to discharge [Reeves].

Although Sanderson testified that she fired [Reeves] because he had

“intentionally falsif[ied] company pay records,” [the defendant

employer] only introduced evidence concerning the inaccuracy of the

records, not their falsification. A 1994 letter authored by Chesnut

indicated that [Chesnut] berated other company directors, who were

supposedly his coequals, about how to do their jobs. Moreover,

Oswalt testified that all of [the defendant employer’s] employees

feared Chesnut, and that Chesnut had exercised “absolute power”

within the company for “[a]s long as [he] can remember.”

Id. at 151-52 (citations omitted).

The Court faulted the Court of Appeals for discounting this evidence

because in so doing, it “misapplied the standard of review dictated by Rule 50.”

Id. at 152. The Court explained the proper standard of review in entertaining

a Rule 50 motion for judgment as a matter of law as follows:

[Courts] must draw all reasonable inferences in favor of the

nonmoving party, and . . . not make credibility determinations or

weigh the evidence. “Credibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from the facts are

jury functions, not those of a judge.” Thus, although [we] should

review the record as a whole, [we] must disregard all evidence

favorable to the moving party that the jury is not required to

believe. That is, [we] should give credence to the evidence favoring

the nonmovant as well as that “evidence supporting the moving

party that is uncontradicted and unimpeached, at least to the extent

that that evidence comes from disinterested witnesses.”

530 U.S. at 150-51 (citations omitted) (quoting Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 254 (1986); 9A Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 2529, at 297-301 (2d ed. 1995)). According to the Court,

the Court of Appeals improperly discounted Chesnut’s age-related comments

because they “‘were not made in the direct context of Reeves’ termination’” and

erroneously “discredited [Reeves’] evidence that Chesnut was the actual

decisionmaker by giving weight to the fact that” there were other

decisionmakers involved. Id. at 153-54 (quoting 197 F.3d at 693-94). The Court

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also said that “the other evidence on which the [Court of Appeals] relied—that

Caldwell and Oswalt were also cited for poor recordkeeping, and that

[Sanderson] employed many managers over age 50—although relevant, [was]

certainly not dispositive.” Id. at 153. By “concluding that these circumstances

so overwhelmed the evidence favoring [Reeves] that no rational trier of fact could

have found that [Reeves] was fired because of his age, the Court of Appeals

impermissibly substituted its judgment concerning the weight of the evidence

for the jury’s.” Id.

In concluding its opinion in Reeves, the Court reminded us that “[t]he

ultimate question in every employment discrimination case involving a claim of

disparate treatment is whether the plaintiff was the victim of intentional

discrimination. . . . Given that [Reeves] established a prima facie case of

discrimination, introduced enough evidence for the jury to reject [Sanderson’s]

explanation, and produced additional evidence of age-based animus, there was

sufficient evidence for the jury to find that [Sanderson] had intentionally

discriminated.” Id. at 153-54. We are bound to follow this analysis in

determining the sufficiency of the evidence here.

ii.

Black established her prima facie case of discrimination. While the case

law notes various formulations of what constitutes a prima facie case of

discrimination, the Supreme Court has said that there is no strict formula.

McDonnell Douglas, 411 U.S. at 802 n.13 (“The facts necessarily will vary in

Title VII cases, and the specification . . . of the prima facie proof required [of the

plaintiff in this case] is not necessarily applicable in every respect to differing

factual situations.”); see also Burdine, 450 U.S. at 253 n.6. “[T]he prima facie

case raises an inference of discrimination only because we presume these acts,

if otherwise unexplained, are more likely than not based on the consideration of

impermissible factors.” Burdine, 450 U.S. at 253-54. Therefore, the prima facie

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case requires the plaintiff to show that the challenged employment decision was

made “under circumstances which give rise to an inference of unlawful

discrimination.” Id. at 253.

Black established her prima facie case of discrimination by showing that:

(i) Pamlab executives, including Stephen Camp, promised Black that she would

not have a sales quota; (ii) Black was later given a sales quota; (iii) Stephen

Camp and Samuel Camp had authority to adjust sales quotas at Pamlab; and

(iv) when Black asked Stephen Camp why she was given a sales quota, he told

her, “Well, it shouldn’t matter to you, you’re not the breadwinner anyway[,] . . .

isn’t your husband the one that makes the money.”

The comment by Stephen Camp is particularly significant because, as

Judge Wisdom explained in Brown v. CSC Logic, Inc., 82 F.3d 651 (5th Cir.

1996), “[s]uch remarks may serve as sufficient evidence of . . . discrimination”

to establish a plaintiff’s prima facie case “if the offered comments are: 1) [sex]

related; 2) proximate in time to the [employment decision]; 3) made by an

individual with authority over the employment decision at issue; and 4) related

to the employment decision at issue.” 82 F.3d at 655-56 (footnotes omitted).

Stephen Camp’s comment meets the Brown test: (1) The comment is undeniably

sex-related, viz., it reflects a patent sex-based stereotype, which, parenthetically,

was not true for Black, who worked while her husband was retired. (2) The

comment was proximate in time to the decision to give Black a sales quota.

Compare Trial Tr. vol. 1, 241, June 8, 2009 (Black’s testimony that she

discovered she had been given a sales quota four months after working for

Pamlab), with Palasota v. Haggar Clothing Co., 342 F.3d 569, 576 (5th Cir. 2003)

(relying on discriminatory comment made within two months of employment

decision as sufficiently proximate in time). (3) The comment was made in

response to Black’s inquiry about her sales quota and is directly related to

Black’s quota. (4) The evidence supports the fact that Stephen and Samuel

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Camp had authority to dictate sales quotas at Pamlab. Indeed, Pamlab

expressly concedes this point. See Pamlab’s Reply Br. 5 (Black “identifies

testimony stating the Camps have the authority to adjust quotas”).9

Accordingly, Black has established a prima facie case of discrimination.

Therefore, we must decide if there was “sufficient evidence to find that the

employer’s asserted justification is false.” Reeves, 530 U.S. at 148.

iii.

There was sufficient evidence for the jury to disbelieve Pamlab’s

nondiscriminatory justification for why Black was given any sales quota.

Pamlab contended that the company assigned sales quotas based on a

nondiscriminatory formula derived from prior sales of pharmaceutical products

sold in a given territory. The evidence supporting this explanation consisted of

the testimony of Bruce Holt, Pamlab’s Director of Sales Information and

Analytics, that he was solely responsible for setting the company’s sales quotas

and employed this formula in doing so, and that neither Stephen Camp nor

9

Although Pamlab now concedes this, even if Pamlab continued to argue that there was

no evidence that the Camps had the authority to set sales quotas, that argument would fail.

We are required to “draw all reasonable inferences in favor of” Black, and “disregard all

evidence favorable to [Pamlab] that the jury is not required to believe,” Reeves, 530 U.S. at

150-51. Lance Whatley, a national accounts manager for Pamlab, was asked, “who sets the

commission in the company and quotas?” and he testified, “At the time it was usually Stephen

[Camp] and Bruce Holt.” Further, immediately after Holt testified that the Camps did not

have the authority to set the sales quotas, he was asked, “Do you have the authority to change

the quotas after you set them?” and Holt responded, “If they so deemed, yes.” Holt’s answer,

viewed in the light most favorable to Black, indicates that “they,” Stephen Camp and Samuel

Camp, had the authority to direct Holt to change the sales quotas. This is unsurprising

considering Samuel Camp was Pamlab’s President and Stephen Camp was Samuel Camp’s

son and Pamlab’s Vice President of Sales. Finally, Black testified that when she spoke with

Richard Rypkema, an executive in Pamlab’s Sales Information and Analytics Department,

Rypkema told her that he conferred with Samuel Camp about the sales quotas and set them

according to what Samuel Camp and Rypkema believed was fair. This contradicts Holt’s and

Stephen Camp’s testimony that the Camps were not involved in the quota decisions.

Therefore, the evidence that we must credit supports the fact that Stephen Camp and Samuel

Camp had the authority to set the sales quotas. See id. at 152-53.

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Samuel Camp had the authority to set quotas; and Stephen Camp’s testimony

that he did not have the authority to set the company’s sales quotas.

However, Black made “a substantial showing” that Pamlab did not always

set sales quotas based on a neutral formula, and she “cast doubt” on whether

Pamlab’s justification explained Black’s particular sales quota. See Reeves, 530

U.S. at 144-45. First, as described supra note 7, Pamlab now concedes that there

was evidence that Pamlab’s sales quotas were not always set based on a neutral

formula, but that Stephen Camp and Samuel Camp had the authority to set

sales quotas “as they so deemed.” Further, Black testified that Richard

Rypkema told her that he consulted with Samuel Black in setting Black’s sales

quotas, and that he, Rypkema, set Black’s quota based on what he and Samuel

Camp felt was fair.10 Second, Pamlab never explained specifically how its

formula resulted in Black’s particular sales quota. Also, its own evidence

includes numerous examples of Pamlab sales representatives who had no quotas,

see Def.’s Trial Ex. 7, and Pamlab never explained how its supposedly neutral

formula resulted in no sales quota for those employees. Parenthetically, most,

if not all, of those employees were men. See id. This is significant because

according to Reeves, “the plaintiff may attempt to establish that he was the

victim of intentional discrimination ‘by showing that the employer’s proffered

explanation is unworthy of credence.’” 530 U.S. at 143 (quoting Burdine, 450

U.S. at 256). Together, this evidence “creat[ed] a jury issue as to the falsity of

[Pamlab’s] explanation” for Black’s sales quota. Id. at 151.

Thus, Black “established a prima facie case of discrimination[] [and]

introduced enough evidence for the jury to reject [Pamlab’s] explanation” for why

10

Even though this evidence was part of Black’s prima facie case, “the trier of fact may

still consider the evidence establishing the plaintiff's prima facie case and inferences properly

drawn therefrom . . . on the issue of whether the defendant’s explanation is pretextual.”

Reeves, 530 U.S. at 143 (alteration in original) (internal quotations marks omitted).

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Black was given a sales quota. Id. at 153. According to Reeves, these two

showings “may permit the trier of fact to conclude that the employer unlawfully

discriminated.” Id. at 148. Since there is no dispute that the jury’s back pay

award was justified if the evidence was adequate for a reasonable jury to find

that Pamlab discriminated against Black by giving her any sales quota, and,

under Reeves, the evidence was adequate to support such a finding, we should

sustain the jury’s back pay award.11

iv.

Moreover, there was additional evidence here that Stephen and Samuel

Camp were motivated by sex-based animus and that they were principally

responsible for Black’s sales quota. Again, Reeves made perfectly clear that “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.” Id. at 148. Nevertheless, in

concluding that it was “apparent” that the evidence was adequate to sustain the

jury’s verdict in Reeves, the Court noted that, “in addition to establishing a

prima facie case of discrimination and creating a jury issue as to the falsity of

the employer’s explanation, [Reeves had] introduced additional evidence that

Chesnut was motivated by [discriminatory] animus and was principally

responsible for [Reeves’] firing.” Id. at 151. Accordingly, we should consider

whether there was similar “additional evidence” here, and indeed, there was: the

11

The Reeves Court noted that “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.” 530

U.S. at 148. The Court illustrated those instances as follows: “[I]f 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. (emphasis added) (internal quotation marks and citations omitted). It is clear that this

case does not present one of those “rare” instances. See Russell, 235 F.3d at 222.

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evidence showed that Stephen Camp and Samuel Camp were motivated by sex-

based animus and were primarily responsible for Black’s sales quota.

The evidence of the Camps’ sex-based animus is analogous to the age-

based comments that the Reeves Court said demonstrated a motivation of

discriminatory animus. First, Black and two other Pamlab employees testified

about sexually derogatory remarks made by Stephen Camp, such as, “[Black has

a] [g]reat body, but [I] wouldn’t want to look at her while I’m . . . having sex with

her.” See id. (“[Reeves] testified that Chesnut had told him that he ‘was so old

[he] must have come over on the Mayflower’ . . . .”). Further, Black testified that

both Samuel Camp and Stephen Camp made comments that women were a

detriment to the company and that Black was taking a job away from a man.

See id. (Reeves testified that “on one occasion when [Reeves] was having

difficulty starting a machine, [Chesnut said] that he ‘was too damn old to do [his]

job,’” and “Chesnut would regularly ‘cuss at me and shake his finger in my

face.’”). Also, Black testified that during her first training session at Pamlab,

Samuel Camp told her that it was “good,” that she didn’t plan to have more

children “because usually females get hired on, get married, and/or get pregnant

and they leave us.” Therefore, Black introduced relevant evidence that Stephen

Camp and Samuel Camp were motivated by sex-based animus.

There was also evidence that the Camps were principally responsible for

Black’s sales quota: Samuel Camp was the President of Pamlab, and Stephen

Camp was Samuel Camp’s son and Pamlab’s Vice President of Sales; Bruce Holt

testified that the Camps could set the company’s sales quota “if they so deemed”;

Lance Whately testified that Bruce Holt and Stephen Camp set the quotas; and

Black testified that when she spoke with Richard Rypkema about her quota, he

told her that he consulted with Samuel Camp and set the quota based on what

he and Camp thought was fair. This evidence is at least as probative of the

Camps’ responsibility for assigning Black a quota as the evidence that the Reeves

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Court concluded was sufficient to show that Chesnut was “the actual

decisionmaker behind [Reeves’] firing.” Id. at 152.12

Therefore, “[g]iven that [Black] established a prima facie case of

discrimination, introduced enough evidence for the jury to reject [Pamlab’s]

explanation, and produced additional evidence of [sex]-based animus, there was

sufficient evidence for the jury to find that [Pamlab] had intentionally

discriminated.” See id. at 153-54. The undisputed fact is that the jury’s

$150,000 back pay award for Black’s quota claim was justified so long as the

evidence was adequate for a reasonable jury to find that Pamlab was motivated

by Black’s sex in assigning her any quota, and thus, we must sustain the jury’s

back pay award. Accordingly, unlike the majority, I would uphold the jury’s

back pay award for Black’s quota claim.

B.

In my view, the majority falls into error by accepting Pamlab’s inapposite

argument that the evidence was insufficient to support the jury’s back pay

award for Black’s quota claim “because Black offered no evidence of another

comparator who was given a promise of a zero quota and was given no quota.”

Majority Op. 11.13 Such comparator evidence is not necessary to support the

12

The evidence cited by the Reeves Court as showing that Chesnut was the “the actual

decisionmaker behind [Reeves’] firing” was, in its entirety, as follows: “Chesnut was married

to Sanderson, who made the formal decision to discharge [Reeves]. Although Sanderson

testified that she fired [Reeves] because he had ‘intentionally falsif[ied] company pay records,’

[the defendant employer] only introduced evidence concerning the inaccuracy of the records,

not their falsification. A 1994 letter authored by Chesnut indicated that he berated other

company directors, who were supposedly his coequals, about how to do their jobs. Moreover,

Oswalt testified that all of [the defendant employer’s] employees feared Chesnut, and that

Chesnut had exercised ‘absolute power’ within the company for ‘[a]s long as [Oswalt could]

remember.’” 530 U.S. at 152 (third alteration in original).

13

Pamlab argues that “Black failed to establish even a prima facie claim of

discrimination under the zero-quota theory . . . and, therefore, there is no basis in the Record

to support $150,000 in Back Pay commissions.” Pamlab’s Br. 18-19. This argument, of course,

is beside the point. See Postal Serv. Bd. of Governors v. Aikens, 360 U.S. 711, 713-14 (1983)

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jury’s award. The plain language of Title VII only requires showing that the

complained-of employment action was “because of” an impermissible factor, such

as sex, or that the impermissible factor was “a motivating factor” in the

employment decision. See 42 U.S.C. § 2000e-2(a)(1), (m). The statute does not

require evidence of a comparable employee whom the employer treated

differently than the Title VII plaintiff. To the contrary, “[t]he ultimate question

in every employment discrimination case involving a claim of disparate

treatment is whether the plaintiff was the victim of intentional discrimination.”

Reeves, 530 U.S. at 153; see also Palasota, 342 F.3d at 574 (“Where a case has

been fully tried, . . . the panel should examine whether the plaintiff has met his

ultimate burden of proving that the employer terminated him because of” an

impermissible factor. (citing Aikens, 360 U.S. at 714)); Carson v. Bethlehem

Steel Corp., 82 F.3d 157, 158-59 (7th Cir. 1996) (“The central question in any

employment-discrimination case is whether the employer would have taken the

same action had the employee been of a different race (age, sex, religion,

national origin, etc.) and everything else had remained the same.”).

As already explained, “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,”

Reeves, 530 U.S. at 148, and the Supreme Court has never said that a plaintiff’s

prima facie case requires evidence that a comparable employee was treated

differently. Indeed, in the seminal case of McDonnell Douglas, the Court first

described a prima facie case of discrimination under Title VII as a showing “(i)

that [the plaintiff] belongs to a racial minority; (ii) that he applied and was

(“Because this case was fully tried on the merits, it is surprising to find the parties . . . still

addressing the question whether [the plaintiff] made out a prima facie case. . . . [B]y framing

the issue in these terms, they have unnecessarily evaded the ultimate question of

discrimination vel non.”).

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qualified for a job for which the employer was seeking applicants; (iii) that,

despite his qualifications, he was rejected; and (iv) that, after his rejection, the

position remained open and the employer continued to seek applicants from

persons of complainant’s qualifications.” 411 U.S. at 802. Thus, the McDonnell

Douglas Court endorsed a prima facie case that did not include comparator

evidence. Id. Likewise, this court has held that a prima facie case of sex

discrimination can be established without comparator evidence. See, e.g.,

Rutherford v. Harris Cnty., Tex., 197 F.3d 173, 179 (5th Cir. 1999) (“to establish

a prima facie case” the plaintiff must “demonstrate that (1) she was not

promoted, (2) she was qualified for the position she sought, (3) she was within

the protected class at the time of the failure to promote, and (4) either the

position she sought was filled by someone outside the protected class or she was

otherwise not promoted because of her sex” (emphasis added)).14

Instead, comparator evidence is only one form of circumstantial evidence

that may be useful, but is not necessary, to prove the ultimate question of

discrimination vel non, and circumstantial evidence itself is not required where

there is direct evidence. See, e.g., Trans World Airlines, Inc. v. Thurston, 469

U.S. 111, 622-23 (1985) (“[T]he McDonnell Douglas test is inapplicable where the

plaintiff presents direct evidence of discrimination. The shifting burdens of

proof set forth in McDonnell Douglas are designed to assure that the plaintiff

14

One treatise offers a similar, “one-size-fits-all,” version of the prima facie case, which

does not include comparator evidence:

Ordinarily, a plaintiff must first establish a prima facie case of discrimination

by showing that (1) he is a member of a protected class; (2) he is competent to

perform the job or is performing his duties satisfactorily; (3) he suffered an

adverse employment decision or action; and (4) the decision or action occurred

under circumstances giving rise to an inference of discrimination based on his

membership in the protected class.

1 Charles A. Sullivan & Lauren M. Walter, Employment Discrimination Law & Practice

§ 2.09[F], at 122 (4th ed. 2009) (citing Dawson v. Bumble & Bumble, 398 F.3d 211, 216 (2d Cir.

2005); Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 959 (4th Cir. 1996)).

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has his day in court despite the unavailability of direct evidence.” (internal

quotation marks and brackets omitted) (citing Teamsters, 431 U.S. at 358 n.44));

see also Rutherford, 197 F.3d at 180 n.4 (“a plaintiff must ordinarily use

circumstantial evidence to” establish her prima facie case but, “[o]f course, a

plaintiff can rely on direct evidence” (internal quotation marks omitted));

1 Charles A. Sullivan & Lauren M. Walter, Employment Discrimination Law &

Practice § 2.01, at 59 (4th ed. 2009) (describing “the various proof structures the

courts have developed” to prove discrimination, and identifying “proving

discrimination through use of ‘comparators’” as “an alternative proof structure”).

There are many ways to prove that an employment decision was

discriminatory. The majority is simply mistaken that Black needed to introduce

evidence that another employee was promised no quota and received no quota,

in order for a reasonable jury to find that Pamlab would not have assigned Black

a sales quota if she was not a woman. As discussed supra, because there was

sufficient evidence, without a comparator, for a reasonable jury to find that

Pamlab would not have assigned Black a sales quota absent discrimination, we

must sustain the jury’s back pay award.

III.

Regarding the application of Title VII’s cap on compensatory and punitive

damages, I concur in the majority’s decision that the cap is properly applied here

to limit Black’s total recovery for such damages for all three of her claims, viz.,

that Pamlab: (1) discriminated on the basis of sex in assigning Black a sales

quota, (2) terminated Black because of her sex, and (3) terminated Black in

retaliation for complaining about sexual harassment. Specifically, I concur

because under the familiar rules of claim preclusion, Black could not have

brought her claims in separate lawsuits. I write separately to point out that this

would be a different case if Black had raised claims that were sufficiently

distinct that Black could have brought her claims in separate suits. In that case,

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Title VII’s cap on compensatory and punitive damages should be applied

separately to each distinct claim or each group of related claims in order to avoid

an absurd result, viz., if plaintiffs with claims that are sufficiently distinct that

they can be brought in separate suits are forced to bring different suits for each

distinct claim or each group of related claims to recover the maximum amount

of compensatory and punitive damages provided by Title VII, judicial resources

will be wasted and attorney’s fees will be needlessly inflated.

Title VII provides that “[i]n an action brought by a complaining party

[under Title VII], . . . the complaining party may recover compensatory and

punitive damages.” 42 U.S.C. § 1981a(a)(1). The statute limits, however, the

amount of compensatory and punitive damages that can be awarded, depending

on the number of employees that the defendant employer has: For an employer

like Pamlab with more than 200 employees, “[t]he sum of the amount of

compensatory damages awarded under this section for future pecuniary losses,

emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of

life, and other nonpecuniary losses, and the amount of punitive damages

awarded under this section, shall not exceed, for each complaining party . . .

$200,000.” Id. § 1981a(b)(3). The district court applied this provision to limit

the total compensatory and punitive damages that Black could recover to

$200,000. Black argues that the court erred because the cap should be applied

separately to each of her three claims since the claims “are separate, distinct and

independent causes of action—each of which could have been brought on its

own,” and because she suffered separate harms from the discrimination related

to each claim. Black argues that Congress intended Title VII to allow a plaintiff

to fully recover damages for each distinct harm that the plaintiff has suffered,

and therefore, she is entitled to $200,000 for each of her three claims.

Even if Black is correct that the congressional purpose of Title VII was to

ensure full recovery for every distinct harm caused by unlawful discrimination

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and that she has suffered separate harms from the discrimination related to

each of her three claims, “[w]e may not look beyond the text of the statute except

in those rare instances where using the plain meaning of the text creates an

‘absurd result.’” Peter v. GC Servs. L.P., 310 F.3d 344, 351 (5th Cir. 2002)

(quoting In re Hammers, 988 F.2d 32, 34 (5th Cir. 1993)). “The statute plainly

states that ‘[i]n an action brought by a complaining party . . . the complaining

party may recover compensatory and punitive damages’ in a sum not to exceed

‘for each complaining party . . . $[2]00,000.’” Baty v. Willamette Indus., Inc., 172

F.3d 1232 (10th Cir. 1999) (emphasis in original) (quoting 42 U.S.C. § 1981a),

overruled on other grounds Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101

(2002). Accordingly, “[t]he unit of accounting is the litigant, not the legal

theory.” Smith v. Chi. Sch. Reform Bd. of Trs., 165 F.3d 1142, 1150 (7th Cir.

1999). Further, applying the plain meaning of the statute here, to limit Black’s

total recovery for compensatory and punitive damages for all of her claims, will

not lead to an absurd result: Since all of Black’s claims had to asserted in the

same litigation according to the familiar rules of claim preclusion,15 applying the

cap to limit Black’s total recovery does not cause Black to recover any less than

exactly what Title VII provides.

15

This court applies the “transactional test” to determine if later-brought claims are

precluded by an earlier-brought lawsuit. See Davis v. Dallas Area Rapid Transit, 383 F.3d

309, 313 (5th Cir. 2004). “The critical issue under the transactional test is whether the two

actions are based on the ‘same nucleus of operative facts.’” Id. (quoting Petro-Hunt, L.L.C. v.

United States, 365 F.3d 385, 396 (5th Cir. 2004)) (“What grouping of facts constitutes a

‘transaction’ or a ‘series of transactions’ must ‘be determined pragmatically, giving weight to

such considerations as whether the facts are related in time, space, origin, or motivation,

whether they form a convenient trial unit, and whether their treatment as a unit conforms to

the parties’ expectations or business understanding or usage.” (quoting Petro-Hunt, 365 F.3d

at 395-96, in turn quoting Restatement (Second) of Judgments § 24(2) (1982))). It is clear that

Black’s discriminatory termination, discriminatory sales quota, and retaliatory firing claims

are based on the same nucleus of operative facts, and therefore, Black had to assert all three

claims in the same suit to avoid claim preclusion. See id.

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However, this would be a different case if Black had asserted claims that

were not based on the same nucleus of operative facts and could have been

brought in separate lawsuits. In that case, it would lead to an absurd result to

not apply Title VII’s damages cap separately, to each distinct claim or each

related group of claims, viz., a plaintiff with distinct claims would be forced to

bring separate lawsuits for each claim or each related group of claims, in order

to recover the full amount of compensatory and punitive damages that Title VII

provides. This, of course, would waste precious judicial resources and result in

exponentially higher attorney’s fees than would otherwise be necessary. See

Barroso v. Gonzales, 429 F.3d 1195, 1207 (9th Cir. 2005) (“when interpreting [a

federal statute], we avoid an interpretation that would lead to an absurd result,

such as the expenditure of unnecessary judicial resources” (internal quotation

marks omitted)). Indeed, the Sixth, Seventh, and D.C. Circuits, have recognized

the absurdity of such a result and have posited that the law of claim preclusion

would provide a practical rule for distinguishing separate claims. See Fogg v.

Ashcroft, 254 F.3d 103, 109-10 (D.C. Cir. 2001); Smith, 165 F.3d at 1150; Hudson

v. Reno, 130 F.3d 1193, 1200 (6th Cir. 1997), abrogated on other grounds, Pollard

v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 847-48 (2001).16

Therefore, I concur in Part III.C of the majority’s opinion with the

additional explanation that in a different case, with claims that are distinct for

the purposes of claim preclusion, Title VII’s damages cap should be applied

separately for each distinct claim or each related group of claims.

16

The Tenth Circuit also considered the question of the proper application of Title VII’s

damages cap in Baty. See 172 F.3d 1232. However, the Baty court did not need to address the

specific issue of whether, in a case with claims that were unrelated according to the rules of

claim preclusion, the cap applied separately to each claim because the claims in that case were

clearly sufficiently related for the purposes of claim preclusion. Id.

43

Case: 09-51092 Document: 00511535564 Page: 44 Date Filed: 07/11/2011

No. 09-51092

CONCLUSION

For the foregoing reasons, I respectfully dissent from Part III.B and concur

in Part III.C of the majority’s opinion.

44