Giles v. General Electric Co.

Revised

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

m 99-11059

_______________

CHARLES M. GILES,

Plaintiff-Appellee-

Cross-Appellant,

VERSUS

GENERAL ELECTRIC COMPANY,

Defendant-Appellant-

Cross-Appellee.

_________________________

Appeals from the United States District Court

for the Northern District of Texas

_________________________

March 19, 2001

Before JOLLY, JONES, and SMITH, favor of Giles. GE further appeals the award

Circuit Judges. of attorneys’ fees. Giles cross-appeals the

quantum of damages and the dismissal of his

JERRY E. SMITH, Circuit Judge: retaliation claim under state law. We affirm in

part, reverse in part, and remand for further

This appeal arises out of a disability dis- proceedings.

crimination suit filed by Charles Giles against

General Electric Company (“GE”), which ap- I.

peals the denial of its motion for judgment as Beginning in 1978, Giles worked as a

a matter of law (“j.m.l.”) following a verdict in

Class A Machinist.1 In April 1995, he injured interference with his relationship with Coliga-

his back lifting toolboxes while traveling home do, Giles thereafter sought treatment from Dr.

from a customer location. Although he tried John Milani, who performed surgery in March

to work thereafter, the pain forced him, in a 1996 and thereafter prescribed a second FCE.

few days, to seek treatment from Dr. Eric In light of the FCE results, Milani

Coligado, who in July 1995 released him to recommended in June 1996 that Giles limit his

return to GE, where he attempted to work for work to a “medium physical demand level”

approximately a week before succumbing and shortly thereafter released him to work but

again to back pain. imposed a permanent lifting restriction of fifty

pounds.

The following month, Coligado prescribed

a functional capacity evaluation (“FCE”), on On August 6, 1996, Milani informed GE

the basis of which2 he concluded that Giles had that the restrictions would not allow Giles to

attained maximum medical improvement and return to work as a Class A Machinist.3 In an

rated him as nine percent impairedSSmeaning August 13 meeting with GE representatives,

Giles exhibited ninety-one percent of the phys- Giles learned that, based at least in part on

ical capacity of an unimpaired person. In Sep- Milani’s findings, GE would not allow him to

tember 1995, Coligado released Giles to work return to work.

once again, this time under permanent lifting

restrictions. Giles filed an application for disability pen-

sion GE in November 1996. As a condition of

On October 12, Coligado released Giles to eligibility for the pension, Giles asserted that

a transitional work program with a twenty- he was “permanently incapacitated for further

pound lifting restriction but, five days work.” GE approved the application, and

laterSSapparently at the urging of a nurse in Giles began receiving payments under the

the employ of GESSrescinded the restriction. pension plan in April 1997. Giles further

Giles refused to work, however, contending sought long term disability (“LTD”) benefits,

that he was unable to lift even twenty pounds. which GE agreed to pay through April 1997,

Upset with what he regarded as GE’s backdated to October 1995. After Giles’s

LTD benefits expired, he filed with GE in July

1997 a written request for accommodation un-

1

As a Class A Machinist, Giles repaired com- der the Americans with Disabilities Act

ponents of power-generating equipment produced (“ADA”), 42 U.S.C. § 12101 et seq.

by GE. The position required occasional travel to

customer locations and the lifting of objects

weighing up to ninety pounds. According to Giles

3

and GE, the position “entailed a lot of crawling Giles testified that Milani’s conclusion re-

around into steam turbines” and represented “very garding his inability to return to work was based on

physical and heavy work.” an erroneous job description GE had given to

Milani. According to Giles, GE furnished to Mi-

2

The FCE results indicated that Giles lani the job description for a welder, which

frequently could lift twenty to twenty-five pounds required, inter alia, lifting equipment that weighed

and occasionally fifty pounds. Coligado interpret- over sixty-seven pounds, and lifting parts that

ed these results as indicating that Giles could not weighed up to one hundred pounds to a height of

“safely go back to his regular duty work.” forty inches.

2

Giles submitted to a third FCE, which qual- the close of Giles’s case in chief. First, GE

ified him to work only at “medium duty” argued that Giles had failed to prove that he

positions. Failing to secure an unqualified re- was a qualified individual under the ADA and

lease to work, he applied for Social Security that he was judicially estopped from claiming

Disability Insurance (“SSDI”) in September qualified individual status. Second, GE

1997. The Social Security Administration asserted that Giles had failed to prove the

rejected the application, however, finding that elements of a retaliation claim under the ADA.

“[his] condition does not prevent [him] from The court denied the motion with respect to

performing [his] previous job as a machinist as Giles’s status as a qualified individual5 and

it is generally performed.” granted it with respect to the retaliation claim.

II. The jury made the following findings via

Giles sued in November 1997, asserting special verdict: (1) Giles is a qualified

claims for discrimination under the ADA and individual with a disability; (2) his disability

the Texas Commission on Human Rights Act was a motivating factor in GE’s refusal to

(“TCHRA”), TEX. LAB. CODE § 21.001 et seq. rehire him; (3) the reasonable accommodation

He followed with an amended complaint, ad- requested by Giles would not impose an undue

ding a claim for retaliation under the ADA, a burden on GE; (4) GE failed to make a good

claim for retaliation under TEX. LAB. CODE faith effort reasonably to accommodate Giles’s

Ann. § 451.001,4 and state tort claims. The disability; (5) Giles is entitled to $400,000 in

court granted GE’s motion for summary judg- compensatory damages; (6) GE violated

ment on the state tort and retaliation claims Giles’s rights under the ADA with malice or

and reserved judgment on GE’s contention reckless indifference; and (7) Giles is entitled

that Giles’s SSDI and LTD benefit to $800,000 in punitive damages. Citing 42

applications estopped him from asserting that U.S.C. § 1981a(3)(D), the court limited the

he was a qualified individual for purposes of award to $300,000,6 denied Giles’s motion for

the ADA. The court considered the impact of back pay, awarded front pay of $141,110, and

Cleveland v. Policy Management Systems granted Giles attorneys’ fees of $150,837.

Corp., 526 U.S. 795 (1999), then denied sum-

mary judgment on the estoppel issue, ruling GE filed a post-judgment motion for j.m.l.

that Giles had sufficiently explained the under FED. R. CIV. P. 50(a), contending that

discrepancies between his assertions on the ap-

plications and his contention that he was a

5

qualified individual. See Giles v. Gen. Elec. The court stated that it was “going to deny the

Co., Civ. Ac. No. 3-97-CV-2774-H, 1999 motion [with respect to Giles’s status as a qualified

U.S. Dist. LEXIS 9369 (N.D. Tex. June 9, individual] . . . and we’ll see how we do on that.”

1999). 6

The district court characterized the limited

award wholly as compensatory damages,

GE moved for j.m.l. on several issues after neglecting any punitive award, because the jury’s

compensatory award alone exceeded the statutory

cap. We reject this characterization for the

4

The amended complaint did not cite the rel- purpose of evaluating whether Giles’s injuries

evant Texas statute but merely referenced “Federal supported the compensatory award. See infra part

and State anti-retaliation laws.” IV.A.

3

(1) Giles’s statements on his SSDI and benefit Scurlock Marine, Inc., 107 F.3d 331 (5th Cir.

applications estop him from asserting his status 1997) (en banc).

as a “qualified individual with a disability” un-

der the ADA; (2) Giles is not a qualified If the facts and inferences point so

individual with a disability, because he could strongly and overwhelmingly in favor of

not have performed his job even with one party that the Court believes that

reasonable accommodation; (3) Giles is not reasonable men could not arrive at a

disabled for purposes of the ADA, because he contrary verdict, granting of the

was not restricted from a broad class of jobs; motion[] is proper. On the other hand,

(4) GE does not regard Giles as disabled;7 if there is substantial evidence opposed

(5) GE has a policy of not allowing restricted to the motion[], that is, evidence of such

individuals to return to work and could not be quality and weight that reasonable and

required to act contrary to that policy;8 fair-minded men in the exercise of

(6) Giles is not entitled to an award of front impartial judgment might reach different

pay; and (7) the attorneys’ fee award is conclusions, the motion[] should be

excessive. The court denied the motion in all denied, and the case submitted to the

respects. jury.

GE appeals the denial of the rule 50 Id. Accord Piotrowski v. City of Houston,

motion, the magnitude of the damage award, 237 F.3d 567, 576 n.9 (5th Cir. 2001).

and the order awarding attorneys’ fees. Giles

cross-appeals the refusal to award back pay, The court denied GE’s motion for j.m.l.

the limitation of the compensatory and made at the close of Giles’s case. Under rule

punitive awards, and the order setting off 50(b), if a party moves for j.m.l. at the close of

Giles’s disability benefits against his award. all the evidence, it may renew its motion after

judgment. The right to renew the motion

III. post-judgment can be waived, however: “[B]y

We turn first to GE’s arguments. When re- introducing its own evidence after the

viewing the denial of j.m.l., we “consider all of plaintiff’s case in chief, and by failing to renew

the evidence . . . in the light and with all rea- the motion for [j.m.l.], the defense waive[s] its

sonable inferences” in favor of the party motion for judgment after the verdict.” Tamez

opposing the motion. Boeing Co. v. Shipman, v. City of San Marcos, 118 F.3d 1085, 1089

411 F.2d 365, 374 (5th Cir. 1969) (en banc), (5th Cir. 1997).9 Nonetheless, we “ha[ve]

overruled on other grounds by Gatreaux v. been willing to excuse certain ‘de minimis’ de-

partures from technical compliance with Rule

50(b),” McCann, 984 F.2d at 671, if the

7

purposes of the rule have been met;10 thus, we

We need not address this argument, because

the verdict is sufficiently supported by the finding

that Giles in fact was disabled for purposes of the

9

ADA. See infra part III.B. See rule 50(b); McCann v. Tex. City Refining,

Inc., 984 F.2d 667, 673 (5th Cir. 1993).

8

Although, in its motion for j.m.l., GE argued

10

that its policy preempts liability under the ADA, it Rule 50(b) serves two purposes:

does not pursue that issue on appeal. (continued...)

4

generally have excused violations of rule 50(b) Cir. 1978)). GE failed to comply with rule

only where 50(b) in moving for j.m.l after judgment. Be-

cause the post-judgment motion for j.m.l.

the trial court had reserved a ruling on argued several issues, we analyze each

an earlier motion for directed verdict separately to determine whether GE’s

(made at the close of the plaintiff’s shortcoming can be considered de minimis.

evidence); the defendant called no more

than two witnesses before closing; only A.

a few minutes elapsed between the 1.

motion for directed verdict and the The first issue GE raised in its post-

conclusion of all the evidence; and the judgment motion for j.m.l. is whether the

plaintiff introduced no rebuttal evidence. statements on Giles’s SSDI and LTD

applications operate judicially to estop him

Id.11 being a claimant under the ADA. We

conclude that, with respect to this issue, GE’s

If a defendant has waived its right to move failure to comply with the strictures of rule

for j.m.l. after judgment, we review merely for 50(b) are excusable.

plain error and reverse only if the judgment

works a “manifest miscarriage of justice.” Mc- First, the court arguably reserved ruling on

Cann, 984 F.2d at 673 (quoting Coughlin v. that issue when it was raised at the close of

Capitol Cement Co., 571 F.2d 290, 297 (5th Giles’s case. Although the court denied the

motion, it added, “we’ll see how we do on

that,” indicating a willingness to revisit the

10 issue at the close of all the evidence. Second,

(...continued)

GE’s only witness, Bob Scaggs, had first been

to enable the trial court to re-examine the

question of evidentiary insufficiency as a called by Giles. Importantly, his testimony

matter of law if the jury returns a verdict was unrelated to the issue of Giles’s SSDI and

contrary to the movant, and to alert the op- LTD applications; furthermore, GE

posing party to the insufficiency before the contendsSSand Giles does not disputeSSthat

case is submitted to the jury, thereby Scaggs testified for only an hour.12 Third, as

affording it an opportunity to cure any in the cases cited in McCann, the plaintiff here

defects in proof should the motion have mer- presented no rebuttal case.

it.

Most importantly, allowing GE to seek

Bohrer v. Hanes Corp., 715 F.2d 213, 216 (5th j.m.l. on the estoppel issue does not thwart the

Cir. 1983). purposes of rule 50(b). The issue of estoppel

11 was well-litigated. Both parties briefed it, and

But see Tamez, 118 F.3d at 1091 (upholding

j.m.l. despite fact that defendant’s case in chief

the court tendered a ruling before trial. In

included five witnesses and lasted over five hours,

because the court had discussed the j.m.l.

12

extensively with the parties and expressly had Although Giles does not dispute GE’s

reserved ruling on the motion at the close of assertion that Scaggs testified for only an hour, he

plaintiff’s case, so plaintiff was not unfairly notes that Scaggs’s direct testimony comprises

surprised). fifty-three pages of transcript.

5

addition, in cross-examination and redirect tes- [A] plaintiff's sworn assertion in an

timony, Giles discussed his SSDI and LTD ap- application for disability benefits that she

plications. After moving for j.m.l. at the close is, for example, “unable to work” will

of Giles’s case, GE did not address the issue in appear to negate an essential element of

its own case in chief, and Giles presented no her ADA caseSSat least if she does not

rebuttal evidence. Thus, the issue had offer a sufficient explanation. For that

developed no further by the close of the reason, we hold that an ADA plaintiff

evidence than it had when GE first moved for cannot simply ignore the apparent

j.m.l. Therefore, Giles could not have been contradiction that arises out of the

unfairly surprised by the motion for j.m.l. on earlier SSDI total disability claim. Rath-

this issue after judgment. We thus review the er, she must proffer a sufficient

issue of estoppel under the Boeing standard. explanation.

2. ...

To present a prima facie case of

discrimination under the ADA, Giles must . . . When faced with a plaintiff's

prove that “[he] is a qualified individual with a previous sworn statement asserting “to-

disability and that the negative employment tal disability” or the like, [a] court

action occurred because of the disability.” should require an explanation of any ap-

Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, parent inconsistency with the necessary

1119 (5th Cir. 1998); see 42 U.S.C. § elements of an ADA claim. To defeat

12112(a). A “qualified individual with a summary judgment, that explanation

disability” is defined by the ADA as someone must be sufficient to warrant a rea-

who has a disability, but who, “with or without sonable juror’s concluding that,

reasonable accommodation, can perform the assuming the truth of, or the plaintiff's

essential functions of the employment position good faith belief in, the earlier

that such individual holds or desires.” 42 statement, the plaintiff could nonetheless

U.S.C. § 12111(8). “perform the essential functions” of her

job, with or without “reasonable

GE contends that Giles failed sufficiently to accommodation.”

explain the apparent inconsistencies between

the statements on his benefit applications and Cleveland, 526 U.S. at 806-07. Under

his asserted status as a qualified individual to Cleveland, unless Giles properly explained the

enable a reasonable juror to conclude that he discrepancy between his earlier sworn

could perform the essential functions of his assertions in his SSDI application, he failed to

job, even with reasonable accommodation. demonstrate a material issue of fact with

According to GE, Giles therefore is estopped respect to his status as a qualified individual,

from claiming he is able to work with and the district court should have granted

reasonable accommodation, by virtue of the summary judgment or j.m.l. in favor of GE on

fact that his applications for SSDI and LTD that issue.

benefits asserted that he was completely

disabled. As an initial matter, the assertions in Giles’s

SSDI application do not operate judicially to

6

estop him from asserting qualified individual he has “recurrent disk herniation, resulting

status only because he failed to obtain benefits with [sic] leg pain & numbness,” “inability to

under SSDI. Without an award of SSDI walk more than 1½ blocks,” and a

benefits, the inconsistency between Giles’s “perm[anent] [weight] restriction.” The ap-

prior statements and his assertions in this plication also stated that Giles has “[c]hronic

litigation does not give rise to judicial pain” and that he “can’t walk or stand long,”

estoppel: although he contends that he did not make

those assertionsSSinstead, he claims, the con-

[I]f an individual has merely applied for, sultant hired by GE inserted them after he had

but has not been awarded, SSDI completed the form.

benefits, any inconsistency in the theory

of the claims is of the sort normally tol- Before trial, the court requested briefs on

erated by our legal system. Our the issue, then ruled that, because “Giles as-

ordinary rules recognize that a person serts he can perform the job with reasonable

may not be sure in advance upon which accommodation, and none of the disability

legal theory she will succeed, and so programs he applied for account for

permit parties to “set forth two or more reasonable accommodations, . . . Plaintiff has

statements of a claim or defense offered a sufficient explanation to [survive

alternately or hypothetically,” and to summary judgment].” Giles, 1999 U.S. Dist.

“state as many separate claims or LEXIS 9369, at *3. Similarly, Giles testified

defenses as the party has regardless of that none of the benefit applications at issue

consistency.” anticipated reasonable accommodation and

that he felt he could perform the job with such

Id. at 805. The doctrine of judicial estoppel accommodation. Giles therefore sufficiently

therefore is inappropriate in this case. explained the assertions on his SSDI

application to allow a reasonable juror to

Even without the operation of judicial es- conclude that, notwithstanding his prior

toppel, however, the statements on Giles’s representations, he is a qualified individual

SSDI application properly could provide the

basis for summary judgment if they undermine

the factual assertions necessary to his ADA

claim.13 Giles’s SSDI application asserted that

13

(...continued)

undermined by the plaintiff's previous sworn state-

13

See Albertson v. T.J. Stevenson & Co., 749 ments.”). Although Cleveland dealt with the

F.2d 223, 228 (5th Cir. 1984) (“[A] nonmovant interplay between an ADA plaintiff’s assertions at

cannot defeat a motion for summary judgment by trial and her earlier SSDI application, the Court

submitting an affidavit which directly contradicts, limited itself to the question of judicial estoppel;

without explanation, his previous testimony.”); see with respect to “factual contradictions,” the Court

also Feldman v. Am. Mem’l Life Ins. Co., 196 “[did] not necessarily endorse [existing] cases, but

F.3d 783, 791-92 (7th Cir. 1999) (“Judicial estop- [left] the law as we found it.” Cleveland, 526 U.S.

pel of an ADA claim, however, is distinguishable at 807. Cleveland is instructive, however, in that

from summary judgment against the plaintiff when it borrowed from prior “factual contradiction” cas-

factual assertions essential to the claim are es, including Albertson, the requirement that a

(continued...) plaintiff explain an apparent contradiction.

7

under the ADA.14 Parker than to Reed or Feldman. The

This case is more similar to Cleveland and plaintiff’s application in Reed described

specific symptoms that, if accepted as true,

would render her unable to obtain a

14

Compare Cleveland, 526 U.S. at 807 government license necessary for the

(reasoning that the facts that the assertions on performance of her old position. The court in

plaintiff's SSDI application “were made in a forum Reed, 218 F.3d at 480, ruled that such

which does not consider the effect that reasonable assertions could not be cured merely by

workplace accommodations would have on the

testifying that the assertions did not account

ability to work” and that the injury apparently

for reasonable accommodation. In Feldman,

improved between the time she filed the SSDI ap-

plication and the time she asserted her status as a the plaintiff failed to provide any explanation

qualified individual under the ADA, provided suf- for the factual inconsistencies.15

ficient explanation to survive summary judgment)

and Parker v. Columbia Pictures Indus., 204 F.3d In contrast, Giles’s SSDI application is sim-

326, 334 (2d Cir. 2000) (opining that statement on ilar to those in Cleveland and Parker, in that it

SSDI application that plaintiff was “still disabled contains no specific assertions resisting his

does not dictate the factual conclusion that he was explanation that he could perform his job with

incapable of returning on a part-time basis or with reasonable accommodation;16 moreover, like

other accommodation,” and plaintiff’s explanation the plaintiffs in Cleveland and Parker, he

to that effect precluded summary judgment), with provided such an explanation. While Giles

Reed v. Petroleum Helicopters, Inc., 218 F.3d conceded at trial that he suffers pain and labors

477, 480 (5th Cir. 2000) (reasoning that although under a permanent lifting restrictionSSthe two

general statement of total disability may not have

primary assertions in his applicationSShe

been incompatible with qualified individual status,

contends that a reasonable accommodation

pilot’s specific assertions on SSDI application that

“she could not sit for extended periods of time and would enable him to work at his old position,

that her back problems made her ‘totally despite those impairments. He therefore suf-

unpredictable’ were properly considered in ficiently explained any factual inconsistencies

determining that she could not fly a helicopter or to survive either summary judgment or j.m.l.

obtain a valid airmen’s certificate,” and bare

assertions that plaintiff spoke little English and that

SSDI application failed to anticipate reasonable

accommodation were insufficient to survive sum-

mary judgment) and Feldman, 196 F.3d at 791-92

(concluding that plaintiff’s utter failure to explain 15

See Feldman, 196 F.3d at 792 (“Unlike the

why sworn statement that she was “completely and plaintiff in Cleveland, Feldman failed to offer any

totally disabled” on SSDI application was not explanation for the contradiction between her SSDI

inconsistent with her asserted status as a qualified and ADA statements.”)

individual rendered summary judgment

16

appropriate). Because Giles’s explanations The one assertion on Giles’s SSDI

encompass both his SSDI application and his other application that might preclude a jury from finding

benefit applications, we do not reach the issue of that he could perform his prior job with reasonable

whether any unexplained inconsistencies between accommodation is the statement that he has chronic

the unsworn statements in those applications and pain and cannot walk or stand long. A reasonable

his assertions in this litigation might properly form jury, however, could believe Giles’s contention that

the basis for summary judgment on this issue. he did not make those assertions.

8

B. Under the ADA, “‘qualified individual with

GE argues that, apart from the issues of es- a disability’ means an individual with a

toppel and factual inconsistency, the district disability who, with or without reasonable ac-

court should have found as a matter of law commodation, can perform the essential func-

that Giles could not have performed his job tions of the employment position that such

even with reasonable accommodation, individual holds or desires.” 42 U.S.C.

negating Giles’s status as a “qualified § 12111(8). In determining what constitutes

individual” under the ADA. With respect to the essential functions of a position,

this issue, GE’s rule 50(b) violations cannot be “consideration shall be given to the employer’s

considered de minimis. judgment as to what functions of a job are

essential, and if an employer has prepared a

Although GE called only one witness as written description before advertising or

part of its case in chief, that witness testified interviewing applicants for the job, this

extensively regarding the nature of the Class A description shall be considered evidence of the

Machinist position, whether a person with essential functions of the job.” Id.

Giles’s disabilities would be able to perform

the duties required, and whether any GE contends that Giles cannot bend, climb,

accommodation would be feasible. GE relies or lift to the degree required by the Machinist

heavily on the testimony of that witness in its Class A position, and it introduced testimony

post-judgment motion for j.m.l. and on appeal. indicating that those skills are essential to the

In light of the close nexus between the issue position. Nonetheless, Giles produced a pub-

on which GE sought j.m.l. and the extensive lished list of “Job Classifications and Descrip-

testimony of its lone witness, to entertain GE’s tions” from GE’s Dallas Service Center that

post-judgment motion on this issue despite included a description of the Machinist Class A

GE’s failure to comply with rule 50(b) would position:

unfairly surprise Giles and thereby would

thwart one of the purposes of rule 50(b). See Performs miscellaneous operations in-

Bohrer v. Hanes Corp., 715 F.2d 213, 216 volving broad machine shop experience.

(5th Cir. 1983). Consequently, we cannot ex- Operates all types of machine tools, in-

cuse GE’s failure to follow the procedures volving close tolerance work, intricate

outlined by the rule, so GE waived its motion setups and development. Dismantles,

for j.m.l. with respect to this issue. assembles, diagnoses and corrects

mechanical trouble on electrical and

Thus, we review only for plain error the mechanical equipment such as turbines,

verdict with respect to whether Giles is a qual- motors, generators, transformers, etc.

ified individual under the ADA. Under that Machines or builds parts from samples

standard, “our inquiry is limited to whether or drawings. Performs related duties as

there was any evidence to support the jury’s assigned. May direct others.

verdict, irrespective of its sufficiency, or

whether plain error was committed which, if Though the description “does not purport

not noticed, would result in a manifest to be all-inclusive or exhaustive of the actual

miscarriage of justice.” Coughlin, 571 F.2d at requirements of [the] job,” it nowhere

297 (internal quotation marks omitted). indicates that climbing, bending, or lifting is

9

essential. The description may not be the issue.17 By failing to raise the issue at any time

bestSSor even sufficientSSevidence of the es- before its post-judgment motion, GE waived

sential requirements of the Machinist Class A it, so we refuse to consider it now.18

position to survive under a more stringent

standard of review, but it does provide, under IV.

§ 12111(8), some evidence supporting the A.

verdict. The jury awarded $400,000 as

compensatory damages and $800,000 as

Furthermore, Giles introduced evidence punitive damages pursuant to 42 U.S.C. §

that Milani’s final determination finding him 1981a, which authorizes compensatory and

unable to return to work as a Class A punitive damages for discrimination under the

MachinistSSa determination that apparently ADA.19 The court limited the damages to

influenced GE’s decision not to rehire $300,000 under the limitation provisions of 42

GilesSSwas based on an incorrect job U.S.C. § 1981a(b)(3) and characterized the

description pro vided to Milani by GE. This entire award, so limited, as compensatory.20

discrepancy ameliorates GE’s assertion that GE argues that the award is unsupported by

medical experts determined that Giles could

not perform the essential elements of the Class

A Machinist position. Finally, the SSA’s 17

In its April 1999 summary judgment order,

determination that Giles’s disability “does not the court noted that “Defendant does not dispute

prevent [him] from performing [his] previous that Plaintiff, who injured his back while working

job as machinist as it is generally performed” is for the Defendant in Mexico and has undergone

additional evidence supporting the verdict. back surgery and rehabilitation due to this injury,

We cannot conclude that there was no is in fact disabled for purposes of the ADA.”

evidence produced to support the verdict; the Moreover, the joint pretrial order fails to mention,

jury was no t plainly erroneous in finding that either as a defense or as a contested issue of law,

Giles’s alleged lack of disability for purposes of the

Giles was a qualified individual under the

ADA.

ADA.

18

See Portis v. First Nat’l Bank, 34 F.3d 325,

C. 331-32 (5th Cir. 1994). (holding that an issue not

In addition to arguing that Giles is not a raised in the district court will not be reviewed on

“qualified individual,” GE contends that he appeal, and determining that “[a] party has

failed to establish another element of his prima presented an issue in the trial court if that party has

facie case under the ADA; namely, that he raised it in either the pleadings or the pretrial order,

possessed a disability as defined by that or if the parties have tried the issue by consent.”).

statute. In denying GE’s post-judgment 19

motion on the issue, the district court Tracking the language of § 1981a(b)(3), the

charge defined compensatory damages to include

notedSSand GE does not disputeSSthat, before

“emotional pain and suffering, inconvenience, men-

filing its post-judgment motion, GE never tal anguish, loss of enjoyment of life, and other

raised the issue of whether Giles was disabled non-pecuniary losses.”

and, in fact, previously had conceded the

20

Giles contends that the court improperly ap-

plied the statutory cap. We consider that in

part V.A, infra.

10

competent evidence of actual injury. considerably on the demeanor of witnesses.”23

Nonetheless, to merit any award greater than

The capped amount for a damage award nominal damages, emotional distress damages

under §1981a is $300,000. When deciding must “be supported by competent evidence

whether a jury award is excessive, we consider concerning the injury.”24

the amount of the award after application of

the statutory cap, not the amount given by the There are two requirements to prove

jury. See Vadie v. Miss. State Univ., 218 F.3d emotional distress, the first of which is

365, 375-76 (5th Cir. 2000), cert. denied, 121 specificity with respect to the alleged injury:

S. Ct. 859 (2001), and cert. denied, 2001 U.S. “[T]here must be a specific discernable injury

LEXIS 1197 (U.S. Feb. 20, 2001) (No. 00- to the claimant’s emotional state, proven with

1007). evidence regarding the nature and extent of the

harm . . . . [H]urt feelings, anger and

In limiting Giles’ damages to $300,000, the frustration are part of life . . . and [are] not the

district court characterized those damages as types of harm that could support a mental

solely compensatory. Without passing on anguish award.” Id. Damages for emotional

whether it is appropriate in every case to char- distress may be appropriate, however, where

acterize limited damages as purely “the plaintiff suffers sleeplessness, anxiety,

compensatory,21 we note that the lack of stress, marital problems, and humiliation.”

evidence of malice or reckless indifference on Migis v. Pearle Vision, Inc., 135 F.3d 1041,

the part of GE justifies that delineation here.22 1047 (5th Cir. 1998).

We thus consider whether Giles produced

sufficient evidence to support a $300,000 Second, we require more than vague

compensatory judgment. allegations to establish existence of the injury.

Because “‘emotional distress [is] fraught with

We review with deference damage awards vagueness and speculation, [and] is easily sus-

based on intangible harm, because “the harm is ceptible to fictitious and trivial claims,’ we

subjective and evaluating it depends must ‘scrupulously analyze an award of

compensatory damages for a claim of

emotional distress predicated exclusively on

the plaintiff’s testimony.’” Brady, 145 F.3d at

21

See Quint v. A.E. Staley Mfg. Co., 172 F.3d

1, 13-14 & n.9 (1st Cir. 1999), petition for cert.

23

filed (June 21, 1999) (No. 98-9984) (refusing, in Patterson v. P.H.P. Healthcare Corp., 90

the face of substantial evidence supporting punitive F.3d 927, 937-38 (5th Cir. 1996) (quoting

damages, to accept the district court’s 1 HENRY H. PERRITT, JR., CIVIL RIGHTS IN THE

characterization of the limited award as purely WORKPLACE § 4.6, at 245 (2d ed. 1995)).

compensatory because “by its terms . . . section

24

1981a(b)(3) neither contemplates nor requires such Brady v. Fort Bend County, 145 F.3d 691,

a characterization.”). 718 (5th Cir. 1998) (quoting Carey v. Piphus, 435

U.S. 247, 264 n.20 (1978)). We use “emotional

22

A punitive award is justified only if the distress” to refer to Giles’s emotional pain and

defendant acted “with malice or with reckless suffering, mental anguish, and loss of enjoyment of

indifference to the federally protected rights” of the life, to the extent that those injuries formed the

plaintiff. 42 U.S.C. § 1981a(b)(1). basis for the compensatory award.

11

719. (quoting Price v. City of Charlotte, 93 the plaintiff chooses not to accept the remitted

F.3d 1241, 1250, 1251 (4th Cir. 1996)). award, a new trial on the issue of damages

Importantly, however, “we do not now hold, alone. See id. To determine the size of the re-

nor have we ever held, that a plaintiff may mittitur, we follow the “maximum recovery

never prove mental anguish damages with his rule,” reducing the damages to the maximum

own testimony alone. In certain cases a amount a reasonable jury could have awarded.

plaintiff’s testimony alone may be sufficient See Dixon v. Int’l Harvester Co., 754 F.2d

proof of mental damages.” Id. at 720.25 573, 590 (5th Cir. 1985). “Of course, our re-

assessment of damages cannot be supported

Giles relies primarily on his own testimony entirely by rational analysis, but involves an

to support his contention of emotional distress, inherently subjective component.” Eiland, 58

although he also cites the testimony of a co- F.3d at 183.

worker, Mike Joyner. Giles testified that he

has had trouble sleeping, suffered headaches The symptoms of which Giles complains

and marital difficulties, and lost the prestige do not support an award of $300,000. In

and social connections associated with his Forsyth v. City of Dallas, 91 F.3d 769, 774

position at GE and his service as treasurer of (5th Cir. 1996), we concluded that a jury

the local union. Joyner testified that Giles reasonably had awarded $100,000 for

appeared “despondent, depressed, down and emotional distress symptoms quite similar to

absolutely utterly discouraged about not being Giles’s.26 In our view, that amount properly

able to come back to work.” This testimony would compensate Giles for his emotional dis-

is specific enough to allow a jury to award tress. To avoid substituting our judgment for

compensatory damages. that of the jury, however, we augment that

amount by fifty percent to reach a maximum

We cannot say, however, that Giles is recovery. See Dixon, 754 F.2d at 590 (citing

entitled to the full $300,000. “There is a Caldarera v. E. Airlines, Inc., 705 F.2d 778,

strong presumption in favor of affirming a jury 784-85 (5th Cir. 1983)). We therefore reduce

award of damages. The damage award may be Giles’ compensatory award to $150,000, with

overturned only upon a clear showing of the option of a new trial if he chooses not to

excessiveness . . . . However, when this court accept the remittitur.

is left with the perception that the verdict is

clearly excessive, deference must be

abandoned.” Eiland v. Westinghouse Elec.

Corp., 58 F.3d 176, 183 (5th Cir. 1995)

(citation omitted). 26

Forsyth upheld emotional distress damages

of $100,000 to one plaintiff based on her testimony

In such a case, we grant a remittitur, or if

that “she suffered depression, weight loss,

intestinal troubles, and marital problems, that she

had been sent home from work because of her

25

See also Migis, 135 F.3d at 1047 (noting that depression, and that she had to consult a

an award for emotional distress “does not always psychologist,” and emotional distress damages of

require that the plaintiff offer medical evidence or $75,000 to a second plaintiff who “testified that he

corroborating testimony in addition to her own suffered depression, sleeplessness, and marital

testimony”). problems.” 91 F.3d at 774.

12

B. Giles had failed to mitigate his future damages.

The district court awarded front pay of The court therefore “decided to exercise its

$141,110.27 GE argues Giles failed to mitigate equitable discretion and award Plaintiff front

his damages by seeking further employment pay in an effort to make him whole.”

and that the court erred in awarding front pay

in light of this failure. We review front pay for The court did not abuse its discretion. The

abuse of discretion. See Rutherford v. Harris only evidence cited by GE to show that Giles

County, 197 F.3d 173, 188 (5th Cir. 1999). failed to mitigate his future damages is the fact

that he accepted employment as a park

In exercising that discretion, the district attendant and a finding by the Texas Workers’

court must consider whether an award of front Compensation Commission that he had “not

pay is reasonable under the facts of the case; made a good faith effort to obtain employment

because front pay is an equitable remedy em- equal to [his] ability to work” and suspended

ployed to account for future lost earnings, the his workers’ compensation benefit for that rea-

award “should reflect earnings in mitigation of son. Giles challenged the commission’s find-

damages.” Patterson, 90 F.3d at 937 n.8. Ac- ing and, after a hearing, persuaded that agency

cordingly, district courts “must consider [a that the benefits should not have been sus-

plaintiff’s] failure to mitigate . . . damages in pended because, in fact, he had diligently

determining the extent to which, if at all, front sought work. Moreover, although Giles is un-

pay is appropriate.” Hansard v. Pepsi-Cola able to detail specifically how he conducted his

Metro. Bottling Co., 865 F.2d 1461, 1470 (5th job search, he attributes that shortcoming to a

Cir. 1989). lack of adequate record-keeping, not of effort.

In support of its argument that Giles failed

to mitigate, GE cites primarily the refusal to Ultimately, this evidence is inconclusive.

award back pay, contending that the finding of Though the evidence of Giles’s failure to mit-

failure to mitigate damages in that context re- igate may have been sufficient to allow the

quires a similar finding with respect to front court to deny front pay, it was insufficient to

pay. The court considered that argument, require it to do so.28

however, and concluded that, notwithstanding

Giles’s failure to mitigate back pay damages,

28

GE had not met its burden of proving that Perhaps a thornier issue is whether front pay

is subject to the statutory cap embodied by

§ 1981a(b)(3), which limits “compensatory dam-

ages,” including, inter alia, “future pecuniary

27

“Front pay is awarded to compensate the losses.” Although the issue appears undecided in

plaintiff for lost future wages and benefits.” Shir- this circuit, the majority of circuits to confront it

ley v. Chrysler First, Inc., 970 F.2d 39, 44 (5th have concluded that front pay should not be limited

Cir. 1992). Reinstatement generally is preferable by § 1981a(b)(3) because, as an alternative to

to an award of front pay, and we customarily re- reinstatement, it is equitable in nature and therefore

quire the district court to articulate its reasons for falls outside the statutory limitation of “com-

finding reinstatement infeasible and awarding front pensatory damages.” Compare Pals v. Shepel Bu-

pay in lieu of reinstatement. See Weaver v. Amoco ick & GMC Truck, Inc., 220 F.3d 495, 499-500

Prod. Co., 66 F.3d 85, 88-89 (5th Cir. 1995). GE (7th Cir. 2000) (holding front pay exempt from

concedes that reinstatement is not feasible. (continued...)

13

C. Miller, 818 F.2d 1227, 1232 (5th Cir. 1987).

After a hearing, the court awarded “The ‘district court’s Johnson analysis . . .

attorneys’ fees of $150,837. Pursuant to 42 need not be meticulously detailed to survive

U.S.C. § 1988(b), courts may award fees to appellate review’, but it must articulate and

prevailing plaintiffs in civil rights actions. We clearly apply the Johnson criteria.” Riley, 99

review an award for abuse of discretion and F.3d at 760 (quoting Louisiana Power & Light

any factual findings supporting the award for Co. v. Kellstrom, 50 F.3d 319, 331 (5th Cir.

clear error. See Riley v. City of Jackson, 99 1995)).

F.3d 757, 759 (5th Cir. 1996). In exercising

that discretion, however, the district court GE complains that the court abused its

must heed the twelve-factor analysis of discretion and that the award was excessive,

Johnson v. Ga. Highway Express, Inc., 488 because Giles employed five lawyers, took no

F.2d 714 (5th Cir. 1974).29 See Cobb v. depositions, made no court appearances before

trial, and argued no novel issues. We disagree.

The court considered the Johnson factors

28

(...continued) carefully in determining the appropriate fee

cap); EEOC v. W & O, Inc., 213 F.3d 600, 618 & award.

n.10 (11th Cir. 2000) (same); Gotthardt v. Nat’l

R.R. Passenger Corp., 191 F.3d 1148, 1153-54 Specifically, the court found that Giles’s

(9th Cir. 1999) (same); Martini v. Fed. Nat’l attorneys’ lodestar value accurately reflected

Mortgage Ass’n, 178 F.3d 1336, 1348-49 (D.C. the complexity and novelty of the case;30

Cir. 1999) (same), cert. denied, 120 S. Ct. 1155 moreover, the court found that the ability and

(2000); Medlock v. Ortho Biotech, Inc., 164 F.3d reputation of Giles’s attorneys was accurately

545, 556 (10th Cir.) (same), cert. denied, 528 U.S.

813 (1999); Kramer v. Logan County Sch. Dist.,

157 F.3d 620, 626 (8th Cir. 1998) (same), with

29

Pollard v. E.I. du Pont de Nemours & Co., 213 (...continued)

F.3d 933, 945 (6th Cir. 2000) (reasoning that front customary fee, (6) whether the fee is fixed

pay is compensatory in nature and therefore subject or contingent, (7) time limitations imposed

to the cap), cert. granted, 121 S. Ct. 756 (2001); by the client or the circumstances, (8) the

Hudson v. Reno, 130 F.3d 1193, 1202-03 (6th Cir. amount involved and the results obtained,

1997) (same). Like the majority of circuits, we (9) the experience, reputation, and ability of

regard front pay as an equitable remedy, see the attorneys, (10) the undesirability of the

Walther v. Lone Star Gas Co., 952 F.2d 119, 127 case, (11) the nature and length of the

(5th Cir. 1992). By failing to argue that the professional relationship with the client, and

limitation applies, however, GE has waived the (12) awards in similar cases. Strong v.

issue on appeal, so we do not decide it. BellSouth Telecomms., Inc., 137 F.3d 844,

850 n.4 (5th Cir. 1998) (citing Johnson,

29

As we recently reiterated, 488 F.2d at 717-19).

30

[t]he twelve Johnson factors are: (1) the The lodestar value is the number of hours

time and labor required, (2) the novelty and worked by Giles’s attorneys multiplied by their

difficulty of the issues, (3) the skill required respective rates. It serves as the base value for any

to perform the legal services properly, (4) fee award, subject to enhancement or reduction

the preclusion of other employment, (5) the based on the Johnson factors. See Riley, 99 F.3d

(continued...) at 760.

14

reflected in their customary billing rates and Act of Texas, TEX. REV. CIV. STAT. ANN. art.

that the result obtainedSSa successful 4590i. There, we analyzed several factors in

judgment of over $1,000,000, reduced to over determining that the statutory limitation

$400,000 by the statutory capSSjustified the functioned as an affirmative defense that must

lodestar value.31 Finally, finding some of be pleaded under FED. R. CIV. P. 8(c).

Giles’s attorneys’ fees unreasonable, the court

reduced their hours and rates. We need not reach the issue of whether the

statutory cap of § 1981a(b)(3) must be plead-

Although GE complains about the number ed as an affirmative defense under Ingraham,32

of attorneys employed by Giles, it does not because even assuming the cap is an

take issue with any of the court’s Johnson affirmative defense, GE’s failure to plead the

analysis. We cannot conclude that the court cap did not waive the defense in this case. Al-

abused its discretion in determining the fee though failure to raise an affirmative defense

award. under rule 8(c) in a party’s first responsive

pleading “generally results in a waiver. . . . ,

V. [w]here the matter is raised in the trial court in

A. a manner that does not result in unfair surprise

In his cross-appeal, Giles contends that the . . . technical failure to comply precisely with

statutory limitation of § 1981a(b)(3) does not Rule 8(c) is not fatal.” Allied Chem. Corp. v.

apply to the damages in this case, arguing that Mackay, 695 F.2d 854, 855-56 (5th Cir.

the limitation is an affirmative defense; because 1983). Thus, a defendant does not waive an

GE failed to plead that defense, it waived its affirmative defense if he “raised the issue at a

right to argue for limitation of the judgment pragmatically sufficient time, and [the plaintiff]

after trial. Giles can marshal no authority was not prejudiced in its ability to respond.”

directly supporting his assertion, so he argues Id. at 856.

by analogy from Ingraham v. United States,

808 F.2d 1075 (5th Cir. 1987), in which we

considered the statutory limitation of the

Medical Liability and Insurance Improvement 32

The only court to have addressed the issue of

whether the limitation provision of § 1981a(b)(3)

functions as an affirmative defense reasoned per-

31

The district court correctly focused on the suasively that it does not; instead, the court opined,

weightier factors in the Johnson analysis, with em- the § 1981a cap is an integral part of the statutory

phasis on the most important factor, the result scheme under which the plaintiff sought

obtained. See Migis, 135 F.3d at 1047 (noting damagesSSthus, a plaintiff cannot have suffered

that, in conducting a Johnson analysis, a “court unfair surprise in the invocation of the cap, so the

should give special heed to the time and labor cap should not be waivable as a defense. See

involved, the customary fee, the amount involved Oliver v. Cole Gift Ctrs., Inc., 85 F. Supp. 2d 109,

and the result obtained, and the experience, 111-12 (D. Conn. 2000) (distinguishing Ingraham

reputation and ability of counsel,” and emphasizing as one of a number of cases in which “[t]he courts

that “[t]he Supreme Court has twice made clear . . . held that the caps were affirmative defenses in

that ‘the most critical factor’ in determining the order to prevent unfair surprise because the caps

reasonableness of a fee award in a civil rights suit were not evident on the face of the statutory

‘is the degree of success obtained’” (quoting schemes under which the plaintiffs had brought

Farrar v. Hobby, 506 U.S. 103, 114 (1992)). their claims.”)

15

GE asserted the defense as a contested is- identical to that in § 1981a(b)(3). See TEX.

sue of law in the joint pretrial order, and the LAB. CODE ANN. § 21.2585. The similarity is

court held a hearing on the issue before trial. unsurprising, given the Texas Legislature’s

Under these circumstances, Giles could not goal of “provid[ing] for the execution of the

have been unfairly surprised by the statutory policies embodied in Title I of the Americans

limitation. The court therefore properly with Disabilities Act of 1990 and its

allowed GE to use the cap as a defense despite subsequent amendments.” Id. § 21.001(3). In

GE’s failure to follow the strictures of rule the face of the similarities in the two statutory

8(c). caps and the legislature’s practice of

replicating the federal scheme, the legislative

B. policy would be better served by viewing the

Giles contends that the court should have two caps as coextensive, not cumulative. The

“reallocated” into his claim under the Texas court did not err in limiting Giles’s

Human Rights Act those damages in excess of compensatory damage award to $300,000

the federal statutory cap. We disagree. pursuant to § 1981a(b)(3).

The sole case relied on by Giles, Martini v. C.

Fed. Nat’l Mortgage Ass’n, 178 F.3d 1336 Giles argues that the court erred in denying

(D.C. Cir. 1999), cert. dismissed, 528 U.S. his request for back pay. Like front pay, back

1147 (2000), involved coextensive claims un- pay is an equitable remedy, the award of which

der both federal law and a District of Columbia we review for abuse of discretion.33 Because

law. The federal claim was subject to the it is an equitable remedy, back pay is subject to

limitations of § 1981a(b)(3), but the analogous a duty to mitigate damages. See Deffenbaugh-

claim under District of Columbia law carried Williams, 156 F.3d at 590.

no such limitation. The jury had received no

instruction on apportioning the damages be- The court surveyed the evidence of Giles’s

tween the two claims, and the court of appeals attempts to mitigate his damages and

held that the district court had improperly lim- concluded that he had failed to mitigate his

ited the damages, because there was no basis damages with respect to the back pay award,

for determining how the jury had apportioned based in particular on the fact that he could

the award. See id. at 1347-50. Further, the document very little of his asserted job search.

court of appeals reasoned, “[w]ere we not to Although Giles produced sufficient evidence to

treat damages under federal and local law as allow front pay, he failed to produce enough

fungible where the standards of liability are the evidence to compel the court to award back

same, we would effectively limit the local

jurisdiction’s prerogative to provide greater

remedies for employment discrimination than

those Congress has afforded under Title VII.”

Id. at 1350. 33

See Deffenbaugh-Williams v. Wal-Mart

Stores, Inc., 156 F.3d 581, 590 (5th Cir. 1998),

This case is distinct from Martini in that vacated for rehearing en banc, 169 F.3d 215 (5th

the state law undergirding Giles’s claim Cir.), reinstated in part, 182 F.3d 333 (5th Cir.

contains a damages limitation provision 1999) (per curiam) (en banc); Hadley v. VAM

P.T.S., 44 F.3d 372, 376 (5th Cir. 1995).

16

pay.34 The district court’s decision to deny affidavits, or by the depositions, answers to

back pay is therefore within its sound interrogatories, and admissions on file,

discretion. designate specific facts showing that there is a

genuine issue for trial.” Celotex, 477 U.S. at

D. 524 (internal quotation marks omitted).

The court granted summary judgment for

GE on Giles’s workers’ compensation Giles contends that the court improperly

retaliation claim. Giles contends the court granted summary judgment on his workers’

should have allowed the claim to proceed to compensation claim, because GE never moved

trial. We review a summary judgment de for summary judgment on that issue. The rec-

novo, applying the same standard as did the ord reflects, however, that GE did seek

district court, so we view all disputed facts in summary judgment on “all claims and causes

the light most favorable to the non-moving of action asserted by . . . Giles . . . ” and

party. See Waymire v. Harris County, 86 F.3d argued that “there is no evidence that . . . GE

424, 427 (5th Cir. 1996). took or refrained from any action based on

Giles’s workers’ compensation claim for

To survive a motion for summary benefits.” To the extent that Giles’s retaliation

judgment, the non-moving party must present claim fell outside the language of GE’s motion,

sufficient evidence to support the elements of it did so because, as the district court noted,

its prima facie case. See Celotex Corp. v. Ca- “no citation was made to the relevant statutory

trett, 477 U.S. 317, 321-23 (1986). “Conclu- provision in either the Plaintiff’s First

sory allegations unsupported by specific facts Amended Complaint . . . or the Plaintiff’s

. . . will not prevent an award of summary Response to Defendant’s Motion for Summary

judgment; ‘the plaintiff [can]not rest on his Judgment.”35

allegations . . . to get to a jury without any

significant probative evidence tending to sup- The court granted summary judgment on

port the complaint.” Nat’l Ass’n of Gov. the workers’ compensation retaliation claim

Employees v. City Pub. Serv. Bd., 40 F.3d because Giles failed to produce summary judg-

698, 713 (5th Cir. 1994) (quoting Anderson v. ment evidence establishing the nexus between

Liberty Lobby, Inc., 477 U.S. 242, 249 the filing of his workers’ compensation claim

(1986)) (modifications in original). Instead, and his termination. Giles apparently concedes

“Rule 56(e) . . . requires the nonmoving party that his response failed to “designate specific

to go beyond the pleadings and by her own facts showing that there [was] a genuine issue

for trial,” as required by Celotex, but instead

argues that GE’s summary judgment motion

34

provided insufficient notice for him properly to

Although it may seem anomalous that the

respond before summary judgment was grant-

district court can view the same evidence and reach

opposing conclusionsSSthat front pay is ap-

propriate while back pay is notSSthat court’s

35

discretion allows for such conclusions in the in- Giles’s first amended complaint merely al-

terest of equity. Such a result is the functional leged that he “was subject to adverse actions as

equivalent of a reduction in both front pay and prohibited by anti-retaliation laws because . . . he

back pay, another action well within the court’s . . . was injured on the job and filed workers’

discretion. compensation claims.”

17

ed. E.

In awarding damages, the court offset,

Giles unsuccessfully moved for from the front pay award, an amount equal to

reconsideration, asserting the same argument the sum of the LTD and disability pension

before the district court. Because Giles filed benefits Giles had already received from GE.

his motion for reconsideration within ten days Giles argues that this is error, because GE

of the original summary judgment order, we failed to plead the offset as an affirmative de-

treat the motion for reconsideration as a fense under rule 8(c). GE concedes that it

motion to amend the judgment under FED. R. failed to assert the affirmative defense36 but

CIV. P. 59(e). See Trust Co. Bank v. United argues that this should be excused. As we

States Gypsum Co., 950 F.2d 1144, 1147 (5th have said, a court may excuse a violation of

Cir. 1992). We review such a motion for rule 8(c) in the absence of prejudice to the

abuse of discretion. See Midland W. Corp. v. other party.

FDIC, 911 F.2d 1141, 1145 (5th Cir. 1990).

On appeal, Giles alleges no prejudice other

Dealing first with the summary judgment, than the assertion that his expert was

we agree with the district court that Giles did “ambushed” by GE’s questioning about

not carry his burden under Celotex. By failing benefits at trial. Giles was not unfairly

specifically to set forth facts that could present prejudiced by the defense, however, because

a triable issue, he neglected to support his the parties each addressed t he issue before

claim sufficiently to survive summary trial.

judgment. To the extent that he asks us to

revisit the summary judgment because GE’s Giles raised the issue in a motion in limine

motion did not provide him with proper notice, and proceeded to object on the merits to sev-

we treat that as an appeal of the motion to eral of GE's trial exhibits before trial. GE filed

reconsider, because the court addressed that a brief before trial addressing Giles’s

argument in refusing to reconsider its summary objections and indicating its intention to seek

judgment. an offset: “According to Giles, because these

payments fall under the collateral source rule,

Likewise, we find no abuse of discretion in they cannot be introduced at trial nor can they

the decision not to amend the summary offset his recovery. . . . [T]he collateral source

judgment. Given the imprecision with which rule does not apply.” Giles’s motion in limine

Giles framed his retaliation claim in the amend- and GE’s pretrial assertion belie his asserted

ed complaint, GE’s summary judgment motion prejudice. The court was well within its dis-

sufficiently referenced that claim when cretion to consider GE’s affirmative defense of

asserting that it had taken no action in offset, notwithstanding GE’s failure properly

retaliation to the filing of the compensation

claim.

36

Our caselaw supports Giles’s contention that

GE cannot be expected to anticipate the an offset indeed is an affirmative defense. See

basis for Giles’s claim. We therefore affirm Rosenberg v. Trautwein, 624 F.2d 666, 670 (5th

the summary judgment on the workers’ Cir. 1980) (noting in passing “the general rule that

compensation retaliation claim. an offset is an affirmative defense that must be

pleaded”).

18

to plead the defense. The collateral source rule would do exactly

thatSSGE is already obligated to pay Giles’s

Giles takes issue with the merits of the disability pension and LTD benefits to

decision to offset the recovery. Because the compensate for his inability to work in the

decision to award front pay is within the dis- future. Failure to set those amounts off

cretion of the district court, so also we review against his front pay awardSSwhich is designed

the decision to offset that award for abuse of to accomplish the same purposeSSwould

discretion. The district court acted well within overcompensate Giles. Accordingly, the court

that discretion. acted within its discretion in setting off the

benefits from the front pay award.

Giles baldly asserts that the collateral

source rule bars setting off the benefits against VI.

the front pay award.37 Giles cites Davis for In conclusion, the jury’s compensatory

the proposition that “when an employee has award is excessive, even as limited by § 1981a-

bargained for a fringe benefit as additional (b)(3). We therefore offer the plaintiff a

consideration for employment, compensation remittitur of $150,000 in compensatory dam-

received by the employee under that fringe ages or a new trial on compensatory damages

benefit should not be deducted from damages alone. In all other respects, we affirm the

awarded to the employee,” 18 F.3d at 1244. judgment.

Giles fails, however, to explain how that pro-

position might apply to this case. AFFIRMED IN PART, REVERSED IN

PART, AND REMANDED.

Plainly, the benefits used to offset the front

pay were not additional, bargained-for

compensation but were instead compensation

for the injury out of which this case arises. In

seeking to apply Davis’s language to the facts

of this case, Giles misapprehends one of the

central tenets of Davis: “Properly interpreted

. . ., the collateral source rule . . . prevents

tortfeasors from paying twice for the same

injurySSa result that would achieve both over-

deterrence and overcompensation. Id. at 1244

n.21.

37

“The collateral source rule is a substantive

rule of law that bars a tortfeasor from reducing the

quantum of damages owed to a plaintiff by the

amount of recovery the plaintiff receives from other

sources of compensation that are independent of (or

collateral to) the tortfeasor.” Davis v. Odeco, Inc.,

18 F.3d 1237, 1243 (5th Cir. 1994)

19