*3 hand, employees he confronted female JONES, Before BARKSDALE and criticisms of their work formal confer- DENNIS, Judges. Circuit meetings. ence room disputes Haas he employees differently treated PER CURIAM: gender. basis of Publishing Trader DefendanL-Appellant Trader contends that Williams was dis- (“Trader”) Company from the appeals dis- charged pattern due to a unacceptable trict on a ver- judgment court based behavior rather than because of gender. Plaintiff-Appellee in favor of dict Sharon Specifically, Trader contends Williams (‘Williams”) finding M. Williams Williams impaired by office morale disparaging fel- discharged by had been Trader due to employees. example, low For con- Trader gender in violation Title discrimination tends that Williams called a co-worker a Act Rights VII the Civil Haas, “bitch” and that she often addressed 2000e, et seq. § challenges U.S.C. Trader “Ron, Ron, her supervisor, as the lepre- gender finding discrimination addition, In chaun.” Trader contends that compensatory damages, and and award Williams circulated rumors about her im- punitive damages, amount of and the pending dismissal that further caused dis- award and amount of fees and sension in the Houston office and falsified assigned, interest. For the reasons we employee. an examination score of a fellow in part part affirm and reverse in response Trader contends that it was in judgment of the district court. pattern disruptive
a of such behavior that Williams was dismissed. I. AND FACTUAL PROCEDURAL BACKGROUND In response Trader’s accusations of behavior”, “disruptive Williams introduced April Williams was hired Trader on 27th, evidence of a similar behavior other em- representative. 1989 as sales ployees summary that had not resulted through From 1989 Williams as- Trader, co-workers, dismissal. former multiple positions sumed Several dur- female, ing they which time she received several raises both male and testified that .1993, performance based bonuses. In had the same a called co-worker “bitch” addition, acting general served In manager being Williams as without terminated. for the Houston office of Trader. Al- introduced evidence that a male though applied position employee for the had discussed rumors of his dis- general manager full-time challenged authority, Houston missal and Haas’s office, terminated; in 1994 hired Ron immediately Trader but was not rath- er, fill the on a position permanent employee basis. Haas confronted the and of- opportunity respond 1995 Trader fired Williams and fered an to the she him- brought only It this allegations. employ- this suit. after that he was II. STANDARD REVIEW to the behavior OF
ee admitted Trad- introduced Williams also dismissed. cases, In Title once VII gen- manual that stated as employee er’s plaintiff prima established a case facie employees should receive policy eral merits, the case been decided on the repri- written warning then a an oral only factual available at the review disruptive prior dis- behavior mand whether, taking level is all appellate infer that while male missal—and light most ences and evidence favor she given procedure, benefit were verdict, points to the the evidence so able was not. in favor strongly defendant-appel argues the situations were it is judgment lant that entitled to as a developed different in that Williams Deffenbaugh-Williams of law. See matter *4 which re- pattern disruptive behavior of Stores, 581, 156 F.3d v. Wal-Mart in deviation quired discharge an immediate (5th Cir.1998), granted reh’g 588 en banc procedures. Trader’s standard On from 215, opinion opinion and vacated 169 F.3d cross-examination, however, admit- Haas Cir.1999) (“af 182 reinstated F.3d 333 only disruptive be- generally ted that a on fully ter case has been tried enough justify an immedi- havior severe merits, longer we no focus on the McDon by rather than his ate termination rubric; Douglas burden-shifting nell (who the ulti- Sunny Sonner superior, inquiry becomes whether record con authority employees of mate fire support sufficient tains evidence level), was at work Williams’s drunkenness finding [gender] ultimate discrim similarly disruption. or other severe some ination”). if the Accordingly, evidence is However, that Haas actu- Trader contends uphold jury a verdict under sufficient Williams, fire that Haas ally did not but VII, appellate Title court should affirm behavior to reported disruptive Williams’s verdict both the and the award dam woman) (who Sonner and that Sonner is a Co., ages. Berry See Smith v. 165 F.3d testi- discharge. authorized (5th Cir.1999). 390, 394 directly Haas fired her without fied that procedure and following policy Trader’s or III. DISCUSSION obtaining supervisor’s prior ap- his without that proval. Williams further testified A. opportu- afford Haas did not her the same nity deny allegations against to admit discrimination, plaintiff a prove To her, male given as Haas had to an accused that may use circumstantial evidence she her escorted employee, and Haas had differently similarly been treated than has building by security guards im- out of the protected situated non-members mediately discharging after her. Austin, City class. See Polanco v. Tex (5th Cir.1996). as, present Williams filed suit Octo- 78 F.3d 977 Trad After a she was satisfy “similarly ber 1996. trial er contends damages pay requirement, awarded for back situated” the situations of the $106,000, must earnings non-protected amount of future members class $27,160, “similar”, pain compensatory they “nearly more than must be $100,000, suffering Vought and See v. Mayberry identical.” Air (“[t]o $100,000. addition, Co., damages In the dis- 55 F.3d 1090 estab craft manner, prejudgment prima trict court ordered interest a case in this lish facie pay compensatory damages employees on at must Mayberry back show that white percent post-judgment differently rate of ten treated under circum were his”) 5.407%, ‘nearly at the rate of as well as (citing interest stances identical’ $61,479.54. Co., Republic time- v. 924 F.2d fees Trader Little Ref. (5th Cir.1991)). ly appeal. present filed a notice of In the Trad- that the circumstances of the ed to Williams. The trial court did er contends not err by in employees’ admitting male treatment introduced the evidence. “nearly were not identical” to B. (1) treatment because there was
Williams’s supervisors no evidence that the knew of Trader contends that Williams (2) employees’ the male conduct and prima failed to establish a case of facie a pattern the men had not established of gender discrimination under Title VII be disruptive behavior as Williams had. cause prove she could not that she was a recent support, Trader cites decision replaced by non-protected a member of a holding this circuit non-tenure track However, that, class. it is well settled professor “similarly is not situated” to a although replacement with a non-member track v. professor. Krystek tenure See protected class is evidence of dis University Mississippi, So. intent, criminatory is essential to the (5th Cir.1999). 251, 257 establishment of a prima case under facie Conoco, Inc., Hornsby Title VII. Although appeal on contends (5th Cir.1985) (“This F.2d court that the to these male pertaining evidence previously single held that fact they is not admissible because that a plaintiff replaced by someone “nearly were not in situations identical” to *5 negate within the class does not protected Williams, that of Trader itself introduced possibility discharge the that the was moti the same show that it had fired evidence to reasons”). discriminatory vated for Ac employees disruptive male for behavior in cordingly, may not have es summary judg- of its motion for support replaced by tablished that she was a male may only ment. Evidence be introduced employee necessarily does not mean that the trial summary judgment phase at of a prima she failed to establish her facie if the evidence would be admissible at trial. case. 56(e) (“Supporting See Fed.R.CivP. ... opposing affidavits shall set forth such C. evidence”). facts as would be admissible in Trader contends that the district Thus, by introducing the relating evidence in admitting court abused its discretion1 male employees, these Trader took the respect general evidence with to Williams’s position before the district the court that performance work because the sole issue evidence would be relevant and admissible at-trial was whether Williams committed at trial parity to show its of treatment- of specific the acts for which Trader contends genders. of employees both Williams was dismissed. cites La introducing sup- Montagne After this evidence in v. American Prod Convenience ucts, Inc., (7th 1405, port summary of its 1414 judgment, motion for 750 F.2d Cir. 1984) that, argued in proposition Trader has its motion in limine for the when an appeal and on the evidence be employer specific cannot stated reasons for dismissal, properly by generally introduced show evidence of Williams to satisfacto similarly ry past that the situated male work does not employees performance pre-termination reprimands were afforded refute such evidence and thus its admis if hearings proof purpose she was denied as of sion for such is reversible error However, gender prejudiced discrimination. because such evidence the defendant. however, comparables LaMontagne, appellate Trader offered the same purposes summary judg- judgment notwithstanding of its motion for court affirmed a ment, employer it cannot persuasively argue the verdict favor of the rejected employees similarly employee’s argument those were not situat- that the general, evidentiary Georgia-Pacific Corp., only. 1. In lion v. decisions of the dis- See Stokes 764, 1990). trict court are reviewed for abuse of discre- 894 F.2d 767 Cir. 486 It true that job injuries. compensato these is satisfactory performance
evidence
may
emotional distress
ry damages for
as evidence that the
considered
should be
evidence of
only
specific
be awarded when
employment
for its
deci-
reason
employer’s
Thus,
Farpella-
actual harm is introduced. See
at 1414.
See id.
pretext.
sion was
Care,
F.3d
Crosby v. Horizon Health
did not consider
LaMontagne court
(5th Cir.1996)
(citing Carey v.
introduction of such evidence
whether
Piphus, 435 U.S.
reversible error because
have been
would
(1978)).
held,
This circuit has
employ- L.Ed.2d 252
not raised
that issue was
however,
testimony
plaintiff
that the
appeal.
ee’s
satisfy
re
may
enough
alone
case, Williams con
present
In the
Vision,
Pearle
Migis
v.
quirement.
prior
introduced evidence of
tends that she
(5th Cir.1998);
1041, 1046
135 F.3d
not to rebut
satisfactory job performance
Dallas,
Forsyth
City
improper
allegations
specific
Trader’s
(5th Cir.1996).2
present
In the
acts,
an
rather to establish
element
but
as to her se
specifically
testified
case, i.e., that
Title VII
prima
her
facie
dis
vere emotional distress due to the
at
position
for the
qualified
she was
position
from her
at Trader result
charge
discharged; by way of con
time she was
loss, beginning smoking
and a
ing
sleep
trast,
of conduct
she used evidence
evidence,
weight.
Such
al
severe loss
prove
male
similarly situated
testimony
though solely
plaintiff,
non-discriminatory rea
proffered
that the
support
sufficiently specific
alleged pattern
discharge,
son for
compensatory damages.
determination
behavior,
None
pretext.
was a
disruptive
See id.
theless,
qualifications
because Williams’s
Trader also contends that it was revers-
stipulated prior
position
were
quantify
her
ible error
for Williams
*6
evidence, Trader ar
the
admission
distress in a dollar amount at
emotional
job performance evi
gues that Williams’s
fig-
previously disclosing
trial without
have
dence was irrelevant and should
been
required
ure to Trader as
under Federal
deciding that
without
Assuming
excluded.
Procedure 26 and 37.
Rules
Civil
We
may
admitting
the trial court
have erred
assigning
need not decide whether
dollar
evidence,
conclude that under the
we
damage
to
with-
figure
emotional distress
case,
present
al
circumstances of the
previously disclosing
figure
out
though the evidence was cumulative and
to Rule
however.3
contradiction
excluded,
could have
its admission
been
not seek
her dam-
quantify
Williams did
sufficiently
was not
to amount
prejudicial
previously
at trial with a
undisclosed
ages
to reversible error.
Rather,
following
value.
collo-
dollar
and her counsel oc-
quy between Williams
D.
trial:
curred on direct examination at
compensa
Trader contends
Q:
jury
award
you asking
Are
jury
tory damages
awarded
for
you damages
your
for
mental an-
supported by
emotional
distress were
guish?
testimony
the evidence because Williams’s
only
was the
that tended to show
A: Yes.
evidence
compensatory damages
Forsyth upheld
2. This
3. Since
for emotional
circuit in
an award
$100,000,
necessarily vague
gener
are
and are
distress
precise
amount awarded in the
ally
jury, they
considered a fact issue for
present
solely
testimony of
based
may not be amenable to the kind of calcula
plaintiff.
Forsyth,
See
ward or ratified harassment of lower-level compensatory damages, punitive damages supervisor). Because we reverse puni- made up about 40% of judg the overall award, damage tive it is appropriate to ment, and the may district court choose to vacate attorneys’ and remand the fee revisit the amount attorneys’ fees in award for reconsideration the district light of Williams’s level revised of success court, requests. as Trader and the may hours that expend have been attorney ed her non-compensable F. punitive damages. Attorneys’ fees should Trader contends that the dis accordingly be reconsidered on remand. trict court erred in its pre calculation of post-judgment interest. Trader did IV. CONCLUSION argument raise before the district court, and therefore we review the issue For assigned, the reasons the judgment, solely plain error. See Marceaux v. except as to punitive damages and attor- Conoco, Inc., Cir. fees, ney’s is AFFIRMED. The award of 1997). plain Reversal for appro error is punitive damages is REVERSED. The priate only if in our discretion the error is judgment for attorneys’ fees is VACATED (1) (2) clear, and, rights affects substantial and REMANDED. (3) corrected, if not “seriously would affect fairness, integrity, public reputation DENNIS, Judge, Circuit concurring in judicial proceedings.” Id. A district part and dissenting part: court has discretion to impose pre I, I II, concur in sections and III.A- post-judgment interest award to make a However, III.D of the majority opinion. I See, plaintiff whole. e.g., Delga Sellers v. must respectfully from section dissent do Community College, 839 F.2d III.E vacating and the fee (5th Cir.1988). This court previously *8 award in section III.F. approved imposition the of the federal rate of interest in Title VII cases mak as Trader contends that the evidence was whole, ing a plaintiff but has not held that insufficient to support an award of punitive only the federal rate of interest is appro damages because Williams did not demon- priate purpose.6 for this Considering the strate that “repre- Trader’s actions were total circumstances of this we con Supreme hensible.” The Court and this clude that the district imposition court’s circuit have recently rejected theory the a higher somewhat rate of interest (appar that a level egregiousness is necessary ently. rate), based on the state interest in awarding punitive damages under Title error, even if plain VII; not error affecting all that is required punitive to award See, e.g., 593, Conway (5th Cir.1987). Corp., v. Electro Switch 600
489
imputed
liability
true that for
to be
with
It is
employer
the
act
damages is that
employer,
offending agent
be
disregard
employ-
of an
an
must
malice or reckless
capacity.
in
employed
managerial
See Kolstad v.
a
See
protected rights.
ee’s
Kolstad,
Assoc.,
However,
527 U.S.
119
at 2128-30.
S.Ct.
American Dental
(1999);
144 L.Ed.2d
in Deffenbaugh-
as
this
court
said
S.Ct.
Williams,
v. Wal-Mart
Deffenbaugh-Williams
agent
manager
“whether an
is
Stores, Inc.,
F.3d
281-82
that
inquiry”
a ‘fact
and
“ulti
intensive’
Kolstad,
Cir.1999).
that Trader’s
have to
mately,
Under
the ...
will
decide
reprehensibility
egre-
facts of
particular
actions lacked
this issue on the
Kolstad,
an
preclude
(quoting
award of
giousness does
case.”
It is somewhat
authority
final
to terminate
to the first
respect
er’s
arguments
Williams,
undisputed
however,
it is
that
defense;
Trader
such as
appears
authority to
did
limited
dis-
discriminatory
action
have
any
contends that
supervision
under his
charge 'employees
im-
dismissing
Haas in
cannot be
behavior, such as
disruptive
for severe
Trader because Haas did not have
puted to
It
work.1
is also
public
drunkenness at
authority
dismiss
managerial
asserts,
Haas told Williams that he
undisputed
majori-
Williams. Trader
employment,
her
had terminated
ty agrees,
only
the Executive Vice
Resources,
any formal oral or
did not receive
charge
of Human
President
reprimand,
that Williams was
Sonner,
written
Sunny
authority.
had that
by security
from Trader office
no escorted
further
that Williams makes
contends
evi-
Sonner,
upon her termination. This
manageri-
guards
allegations that
sole
Kolstad,
contention that
supports
in a dence
Williams’s
agent
purposes
al
acted
*9
who
actuality
it
in
Haas
fired her
Trader
was
discriminatory manner
thus
authority to
emergency
his limited
punitive damages.
under
cannot
held hable for
authority
address
limited
to fire
flatly
to
managerial
Haas's
1. The
contradicts the statement
record
employees,
majority
only Sonner
the au-
level
majority
of the
that
had
Williams;
attempt
ignore
to
it.
thority
rather
chooses
to fire
than
damages
puni-
all
tive
Drawing
reasonable inferences
and would affirm the
do so.
verdict,
damages
in
the' evidence does
tive
award.
favor
strongly in favor of Trader as
point
not
so
respect
With
to the reversal of attor
judgment
Trader a
as a
justify granting
fees, I
ney’s
disagree
that this court
of law on the issue of whether Haas
matter
authority
to reverse
court’s
the district
managerial agent
a
of Trader and
it
merely
award of
fees
because
it
Haas who fired Williams on
whether was
portion
damages
has reversed a
his own.2
award. This court reviews
district
defense,
court’s
calculation for
error
lodestar
clear
respect
to the second
With
departure
any
from the lodestar calcu
complied
it
with
contends that
had
Trader
Hadley
lation
abuse of
for
discretion. See
good
through
“open-
in
faith
its
Title VII
(5th
PTS,
v.
VAM
F.3d
375-76
policy encouraging aggrieved em
door”
Cir.1995). Thus, the district court’s calcu
superiors
possible
ployees to contact
about
lodestar
in
pres
lation of the
amount
of Title VII. This court ad
violations
case, although
ent
it
been
may
in
well have
argument
a similar
dressed
Deffen
punitive damages
different had
been
that
not
baugh-Williams,
held
Wal-
awarded, may only
be reversed
this
policy
encouraging employees
Mart’s
clearly
court if such calculation was
erro
higher managers
grievances
contact
with
neous.
good-faith compliance
not establish
does
Title VII as a
of law.
with
matter
It
is well settled that
if
prevailing
a
at
in Dejfenbaugh-Williams,
F.3d
286. As
Title
party under
VII is entitled
attor-
presented no
of its
evidence
re
claims,
for
ney’s
all hours
fees
worked on
any
to Williams’s
or of
sponses
complaints
not,
or
victorious
“arise out of the
specific
comply
efforts to
with Title VII
easily
same course
conduct and are not
than
generic
other
the evidence of its
on
separated
the basis of each
claim
policy which
open-door
Williams had not
Miller,
defendant.” Cobbv.
Accordingly, “the
of [Trad
used.
evidence
(5th Cir.1987);
Migis
see also
good
antidiscrimination
faith was cer
er’s]
Vision,
Pearle
fenbaugh-Williams, 188 286.3 F.3d at that, majority’s implicit conclusion when lodestar, calculating magistrate Trader has not demonstrated there judge clearly by including did err support is insufficient evidence on spent hours unsuccessful claims and jury’s determination that Haas acted with unnecessary discovery pursuit irrele- justify punitive sufficient willfulness to evidence.”). vant The Supreme Court has Further, damages. proved Trader has explained principle this as follows: neither there insufficient evidence support determination that plaintiff Where a has obtained excellent managerial results, was a agent of Trader his attorney should recover good nor fully compensatory Normally established a faith fee. compliance system. Title VII Accordingly, encompass reasonably will all hours ex- I respectfully dissent on of puni- pended the issue litigation, and. indeed 2. Since the determined Despite majority's implication that Haas was a other- wise, Trader, managerial agent that Williams failed to avail herself of it is irrelevant open-door policy does not into a convert it scope whether Haas acted outside the of his good system. compliance faith Title VII employment dismissing pur preferable it would have Whether been poses imputing liability puni to Trader for complaint have addressed a tive under Title VII. Deffen Haas’s behavior to is irrelevant to the Sonner baugh-Williams, 188 F.3d n. 6. at 286 issue whether Trader had established good compliance system. Title VII faith
491 appeal, respectfully on I must dis- an reduced exceptional success cases of some sent, justified. may be award enhanced award the fee circumstances these simply because not be reduced
should every prevail'on plaintiff failed in the lawsuit.
contention raised Eckerhart, 461
Hensley v. U.S. (1983). L.Ed.2d cir and this Supreme Court
Applying SIKES, Plaintiff-Appellee- present it does Robert D. precedent to the cuit’s Cross-Appellant, court’s lodestar district appear not n clearly erroneous. calculatio v. on her claims all victorious GAYTAN, Individually and in Juan F. and, liability majority opinion, under Guard, Capacity as a De his Official merely prevail appeal on failed fendant-Appellant-Cross-Appellee. against Trader. damages seeking punitive the le Trader has not demonstrated No. 99-50316. counsel related services of Williams’s gal Appeals, United States Court punitive largely parasitic claims Fifth Circuit. totally were within damages subsumed necessary to the success legal services 25, 2000. July underlying claims prosecution ful let damages, liability compensatory services related legal show that such
alone not “arise out damages did' punitive they conduct” or that
the same course of “easily of each separated
are basis Cobb, F.2d at
claim or defendant.” being are punitive
Tjiat not affect this appeal on does
reversed af- past circuit has in the
analysis. This at- calculation of
firmed district court’s fees an abuse of discretion
torney’s as not damage award
despite reversing greater per- significantly
that reflected a in the award than
centage the total TRW, case. Stevenson
present Cir.1993) lia- (affirming F.2d 288 $30,-
bility compensatory damages $100,-
000, reversing punitive damages attorney’s fees of over affirming
$20,000). panel As I thus believe that Supreme circuit and departing from vacating the precedent by
Court clear any showing of award without
fees but appellant,
error award merely as a of law because
rather matter has been reversed
part award