Opinion
Civil Action No: 98-2629 SECTION: "J" (5)
December 21, 2000
FINDINGS OF FACT AND CONCLUSIONS OF LAW DAMAGES
This matter came on for trial before the Court, sitting without a jury, on May 22 and 23, 2000. The Court took the matter under advisement on June 20, 2000, after allowing the parties to submit memoranda concerning the Supreme Court's decision in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d (2000). On August 28, 2000, the Court issued its Findings of Fact and Conclusions of Law on the issue of liability. Having found in favor of plaintiff Angie Gobert and against defendant Bruce Babbitt, the Court pretermitted ruling on the issue of damages pending additional memoranda to be submitted by the parties. See Rec. Doc. 65, at 26. In a minute entry dated August 25, 2000, the Court set deadlines for each party to file post-trial memoranda on the issue of damages. Rec. Doc. 66. Having considered those memoranda, the evidence offered at trial, and the applicable law, the Court now renders its Finding of Fact and Conclusions of Law on the issue of damages, pursuant to Federal Rule of Civil Procedure 52(a).
Back pay
On the second day of trial, May 23, 2000, the parties stipulated to $21,564.62 as the appropriate amount of back pay should Plaintiff prevail on the merits. Rec. Doc. 52. That figure was calculated to account for the gross pay differential between Plaintiff's salary at the GS-12 and GS-13 positions from June 1996 through May 2000 when the case went to trial. Given that an additional seven months have elapsed since the stipulation was entered, the Court will adjust Plaintiff's back pay award to reflect the elapsed time period that the parties did not take into account. Accordingly, Plaintiff is awarded the sum of $24,637.84 for back pay.
Under the original stipulation, Plaintiff's gross differential for 1/2/00 to 5/27/00, a period of 147 days, was $2171.94. Extrapolating that figure out to December 21, 2000, brings the gross differential for 1/2/00 to 12/21/00, a period of 355 days, to $5245.16. Backing the old $2171.94 figure out of the $21,564.62 stipulation, and adding back in the new figure of $5245.16, brings the gross differential for back pay during the period of 6/23/96 to 12/21/00, to $24,637.84.
General Damages
Plaintiff moves the Court for a general damage award of $20,000.00 to compensate her for emotional upset, stress, mental strain, and worry. In response, Defendant argues that under the applicable jurisprudence, Plaintiff failed to offer sufficient evidence at trial to merit an award of compensatory damages.
42 U.S.C. § 1981a(a)(1), which governs compensatory damage awards under Title VII, authorizes an award of compensatory damages when an employer has engaged in unlawful intentional employment discrimination.See Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 808 (5th Cir. 1996). Compensatory damages under this section include such nonpecuniary losses as emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses. See id.; Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927, 940 (5th Cir. 1996) (citingLandgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 12a L.Ed.2d 229 (1994)).
Punitive damages, while authorized under 42 U.S.C. § 1981a(b), are not permitted against a government agency such as Defendant in this case. Accordingly, Plaintiff has made no demand for punitive damages.
As the Fifth Circuit has previously noted, Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978), is the appropriate guide for analysis of an emotional damage award in a Title VII case. Vadie v. Mississippi State Univ., 218 F.3d 365, 376 (5th Cir. 2000). In Carey, the Supreme Court rejected the notion of "presumed" damages for emotional injury and held that plaintiff must prove actual injury to recover more than nominal damages. 435 U.S. at 263-64, 98 S.Ct. at 1052. In a series of cases decided in the wake of Carey, the Fifth Circuit has clarified the requisite specificity of the evidence needed to prove emotional damages in a Title VII case, as well as the types of evidence that may be used. See, e.g., Patterson, 90 F.3d at 938-40. It is now well-settled in this circuit, that plaintiff's testimony alone is sufficient to support an award for emotional damages. Williams v. Trader Publ'g Co., 218 F.3d 481, 486 (5th Cir. 2000) (citing Migis v. Pearle Vision, Inc., 135 F.3d 1041 (5th Cir. 1998); Forsyth v. City of Dallas, 91 F.3d 769 (5th Cir. 1996) (upholding damage awards of $100,000 and $75,000 based solely upon the testimony of plaintiffs)); see Vadie, 218 F.3d at 377.
Although Carey dealt specifically with an emotional damage claim under 42 U.S.C. § 1983, the Fifth Circuit has held that it should apply to all "cases involving federal claims for emotional harm," including Title VII cases. Vadie, 218 F.3d at 376 n. 26 (quotingPatterson, 90 F.3d at 938 n. 11).
As to the level of specificity needed to support an award, the Fifth Circuit has held that there must be "specific discernable injury to the claimant's emotional state." Patterson, 90 F.3d at 940. To help elucidate the meaning of "discernible injury," the Fifth Circuit has looked to the Equal Employment Opportunity Commission's ("EEOC") official guidelines regarding emotional harm in employment discrimination cases. Id. (citing EEOC Policy Guidance No. 915.002 § 11(A)(2), at 10 (July 14, 1993)). The EEOC guidelines recognize that emotional harm can manifest itself in ways such as sleeplessness, depression, marital strain, loss of self esteem, nervousness, or fatigue. Id. Applying these standards, awards in this circuit have been upheld where plaintiff testified as to depression, intestinal problems, sleeplessness, and martial problems,Forsyth, 91 F.3d at 774 (upholding awards of $100,000 and $75,000), anxiety, stress, and loss of self esteem, Migis, 135 F.3d at 1047 (upholding an award of $5,000), and feeling embarrassed, disgusted, stupid, and hopeless, Farpella-Crosby, 97 F.3d at 809 (upholding an award of $5,000). Cf., e.g., Rubinstein v. Administrators of the Tulane Educ. Fund, 218 F.3d 392, 409 (5th Cir. 2000) (rejecting recovery for feeling "angry and moody").
In the instant case, Plaintiff testified as to fatigue and intestinal problems — two physical manifestations specifically listed in the EEOC guideline cited with approval in this circuit. Rec. Doc. 69, Exh. A, at 174. She also testified that she was despondent, depressed, withdrawn, and that her confidence level had decreased as a result of the discrimination she endured. Id. at 177. As can be expected, she explained that she was under increased stress at work due to the discrimination she suffered. Id. Finally, plaintiff sought counsel on five occasions from a social worker in the Employee Assistance Program after she was passed over for the promotion. Id. at 182. Considering plaintiff's testimony in light of the applicable standards set out in this circuit, the Court finds that an award of $10,000.00 in compensatory damages for emotional distress is appropriate.
Reinstatement Versus Front pay
Plaintiff moves the Court for reinstatement or front pay, emphasizing that reinstatement is feasible, and therefore, her preferred remedy. Specifically, she requests that the Gulf of Mexico Region ("GOMR") Oil Spill Program Administrator position be reclassified as a GS-881 Petroleum Engineer Position (as originally approved) and that she be promoted into that position without competition, or that she be promoted into a GS-881-13-7 position in the GOMR comparable in scope, duties, and responsibilities. Rec. Doc. 67, at 5. Defendant, citingHardin v. Caterpillar, Inc., 227 F.3d 268 (5th Cir. 2000), contends that Plaintiff's failure to include a claim for front pay or reinstatement in the final pre-trial order constitutes a waiver of that remedy notwithstanding Plaintiff having requested such relief in her complaint. Defendant also points out that reclassification of the Administrator position would require bumping an incumbent employee, and therefore, that option is not feasible. See Walsdorf v. Board of Comm'rs, 857 F.2d 1047, 1054 (5th Cir. 1988).
In Title VII lingo, the term "reinstatement" can mean either literal reinstatement as when the employee was fired unlawfully, or a promotion as in Gobert's case where she was denied one unlawfully. See Rutherford v. Harris County, 197 F.3d 173, 188-89 (5th Cir. 1999). Thus, all references to "reinstatement" in Gobert's case actually refer to a promotion.
42 U.S.C. § 2000e-5(g)(1) authorizes the Court to remedy unlawful employment practices by ordering such affirmative action as may be appropriate including reinstatement or any other equitable relief the court deems appropriate. Reinstatement and front pay are equitable remedies the award of which are within the trial court's sound discretion. Allision v. Citgo Petroleum Corp., 151 F.3d 402, 423 n. 19 (5th Cir. 1998); Morris v. Lee, 2000 WL 1224794 (E.D. La.) (citing 45BAm. Jur. 2d, Job Discrimination § 1102 (1993)). Although reinstatement is the preferred remedy in a failure to promote case, front pay may be awarded if reinstatement is not feasible. Rutherford, 197 F.3d at 188 (citing Woodhouse v. Magnolia Hosp., 92 F.3d 248 (5th Cir. 1996)).
Having found that Plaintiff was denied a promotion to a GS-13 position due to intentional unlawful discrimination, the Court finds that reinstatement is an appropriate remedy and that it should be awarded in lieu of front pay. Defendant's post-trial memorandum explains why reclassification of the Administrator position is not feasible, yet makes no argument as to why reinstatement to another comparable GS-13 position is not feasible. See Rec. Doc. No. 69, at 7.
As for Plaintiff's failure to include a demand for reinstatement in the final pre-trial order, the Court is unpersuaded that such an omission is fatal. While failure to include a claim in the pre-trial order typically constitutes a waiver of that claim, see, e.g., Kona Technology Corp. v. Southern Pac. Transp. Co., 225 F.3d 595 (5th Cir. 2000), theHardin case, upon which Defendant relies, expressly contradicts such a mandate in the context of equitable remedies under Title VII. Rather,Hardin unequivocally recognizes that the trial court has discretion to award equitable remedies to a successful Title VII plaintiff notwithstanding plaintiff's failure to request such an award in the final pre-trial order. 227 F.3d at 269. Other courts considering the issue have reached the same conclusion given the equitable nature of the award. See United States EEOC v. WO, Inc., 213 F.3d 600, 618-19 (11th Cir. 2000). Accordingly, the Court finds that Plaintiff is entitled to promotion to a GS-881-13-7 position in the GOMR comparable in scope, duties, and responsibilities to the GS-13 petroleum engineering position she was originally denied when she applied for the S-96-6 vacancy.
Further, in this non-jury trial, the Court could allow Plaintiff, in the interest of justice, to amend the pre-trial order to conform with the pleadings and evidence. Defendant has not suggested that it was in any way prejudiced by the pre-trial order omission and during the trial, it appeared to the Court that all parties were under the impression that Plaintiff was asserting a claim for either front pay or reinstatement.
Attorney's Fees and Costs
Plaintiff moves for attorney's fees pursuant to 42 U.S.C. § 2000e-5k and 42 U.S.C. § 1988. Defendant disputes whether the hours expended by Plaintiff's counsel are reasonable. As the prevailing party in this matter, Plaintiff is entitled to costs which may include a reasonable attorney's fee. FRCP 54(d); 42 U.S.C. § 2000e-5(k). The Court finds an award of attorney's fees and costs is appropriate in this case and refers Plaintiff's motion on that matter to the United States Magistrate Judge for determination.