REVISED AUGUST 26, 2002
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________________
No. 01-50117 _______________________
HAROLD MERRITT HITT,
Plaintiff-Counter-Defendant-Appellee,
versus
JERRY CONNELL, ETC.; ET AL.,
Defendants,
JERRY CONNELL, Bexar County Constable, Precinct 2, Individually and in His Official Capacity,
Defendant-Counter-Claimant-Appellant.
_______________________
No. 01-51010 _______________________
Plaintiff-Appellee,
JERRY CONNELL, Bexar County Constable, Precinct 2, Individually and in his official capacity,
Defendant-Appellant. _________________________________________________________________
Appeals from the United States District Court for the Western District of Texas _________________________________________________________________ July 31, 2002
Before JONES, EMILIO M. GARZA, and STEWART, Circuit Judges.
EDITH H. JONES, Circuit Judge:
In this 42 U.S.C. § 1983 action, the jury found that
Bexar County, Texas, Constable Jerry Connell fired deputy constable
Harold Merritt Hitt in retaliation for Hitt’s exercise of his First
Amendment right to freedom of association. The jury awarded Hitt
$300,000 in compensatory damages, three-fourths of which was for
non-pecuniary harms like “mental and emotional distress”. The
district court subsequently awarded Hitt approximately $88,500 in
attorney’s fees and costs pursuant to 42 U.S.C. § 1988. Connell
has appealed both the judgment and the award of attorney’s fees.
We hold principally that the Bexar County Civil Service
Commission’s decision upholding Hitt’s termination did not break
the causal connection between the protected activity and the
adverse employment action, and Connell was not entitled to
qualified immunity. However, Hitt introduced insufficient evidence
to support an award of nonpecuniary damages, so that a portion of
2 his damages must be vacated and the attorney’s fee award remanded
for reconsideration.
I. BACKGROUND
Harold Merritt Hitt was employed as a deputy constable in
precinct 2 of Bexar County from 1993 until March 1997, when he was
fired by Constable Connell. Hitt alleged, and a jury found, that
his employment was terminated because Connell disapproved of Hitt’s
involvement with two affiliated labor unions, the Alamo Area Peace
Officers’ Association and the Texas Conference of Police and
Sheriffs (“TCOPS”).
The dispute between Connell and Hitt began in October
1995 when Connell ordered his deputies to start reporting to the
office 15 minutes before their shifts were scheduled to begin.
Deputy Hitt, who was serving as the secretary of the local union,
wrote to TCOPS for advice about getting paid for these extra 15
minutes. Connell learned of Hitt’s letter and called a general
meeting of his deputies, one of whom surreptitiously tape-recorded
what was said. Connell reiterated that his deputies would not be
paid for the 15 minutes before their shifts, but his main point was
that salary grievances should not be aired outside the constable’s
office. Connell suggested that deputies who continued to complain
to the union were in danger of losing their commissions.
Three deputies -- Ray Mullins, Joe Algueseva, and Robert
Whitney -- testified at trial that Constable Connell spoke to each
3 of them privately not long after this meeting and told them that he
would not tolerate union activity in his office. Each deputy
testified that Connell referred specifically to Hitt and said that
he intended to fire Hitt because he was a “troublemaker.” One of
the deputies, Ray Mullins, served as president of the local union.
Mullins tape-recorded a conversation in which Connell said several
times that they would have a “running gun battle” if Mullins did
not quit the union. Connell threatened to “play dirty” and said he
would start by taking away Mullins’s $500 monthly car allowance.
During this recorded conversation, Connell observed in passing that
he could fire Hitt with impunity.1
Connell fired Hitt in March 1997. Connell testified that
he harbored no ill will toward the deputies who were active in the
union. Moreover, Connell insisted that Hitt would have lost his
job regardless of his union activity because Hitt had made a “bomb
threat” in a January 1997 telephone conversation with his immediate
supervisor, Deputy Robert North.
The gist of the telephone conversation is not in dispute.
Hitt was angry that North had assigned a first-year constable to
patrol traffic in a certain neighborhood. In his account of the
1 Mullins nevertheless remained active in the union, and Connell fired him in early 1996. Mullins appealed the decision, the Bexar County Civil Service Commission ordered that Mullins be reinstated, and he was assigned to a new precinct.
4 conversation, which was written approximately three weeks after the
telephone conversation, Deputy North wrote:
Sgt. Hitt stated, was I trying to get him (Sgt. Hitt) in trouble or fired. Sgt. Hitt stated, he knew what was going on and that I (Sgt. North) was fixing to be in the war. . . .
Sgt. Hitt stated, that when the bomb went off with Horn (Asst. Chief Horn) that it might get my (Sgt. North) legs also.
As Sgt. Hitt and myself (Sgt. North) are both Vietnam veterans, it could have meant that the bomb, when it went off, would take out Asst. Chief Horn, and possibly my (Sgt. North) legs, as we both had seen in Vietnam.
This statement could have only meant to be taken figuratively. But I don’t know this for sure. Sgt. Hitt’s tone of voice was filled with a lot of anger.
Hitt concedes that Deputy North’s account of the conversation is
generally accurate. Hitt argues, however, that violent figures of
speech were used regularly around the office (e.g., Connell’s
“running gun battle”) and that “the war” and “the bomb” referred to
an ongoing criminal investigation of the constable’s department.
Sergeant Gerardo De Los Santos of the Texas Rangers
testified at trial that he had been investigating the constable’s
office since Deputy Mullins had contacted him in December 1995. At
the time of the telephone conversation between Hitt and North,
Sergeant De Los Santos was completing his investigation and had
decided that there was sufficient evidence of retaliation and
discrimination to file a report with the Bexar County District
Attorney’s Office. (He interviewed and took statements from Hitt
5 in January and February of 1997, and then filed his report in late
February.)
Deputy North admitted at trial that he had never really
believed that Hitt was making a legitimate bomb threat.
Consequently, North waited three weeks before informing Constable
Connell and Chief Deputy Chuck Horn of the conversation, and one
reason why he submitted the report was that he had been ordered “to
look for things to write Hitt up about.” Then, after North
submitted the memorandum quoted above, Chief Deputy Horn instructed
North to revise his memo and omit any suggestion that Hitt’s
reference to a “bomb” should be taken figuratively.
In February 1997, Constable Connell delivered a proposed
notice of termination to Hitt. Citing the telephone conversation
between Hitt and North, Connell wrote that such “unprofessionalism
. . . cannot and will not be tolerated.” On March 5, Connell
informed Hitt that his employment was terminated. Hitt appealed
his dismissal to the Bexar County Civil Service Commission, but the
commissioners who heard the appeal voted to uphold Constable
Connell’s decision.
Hitt filed this 42 U.S.C. § 1983 action in February 1999.
Before trial, the district court dismissed all claims except for
Hitt’s free speech and free association claims against Connell in
his individual capacity. Then, at the close of evidence, the
district court granted judgment as a matter of law for Connell on
6 the free speech claim. The jury returned a verdict for Hitt on the
First Amendment association claim and awarded him $300,000 in
compensatory damages.
The district court entered judgment for Hitt and,
pursuant to 42 U.S.C. § 1988, awarded Hitt $88,487.94 in attorney’s
fees and expenses. Connell’s appeals of both awards have been
consolidated.
II. DISCUSSION
The First Amendment protects a public employee’s right to
associate with a union. As this court has stated,
This right of association encompasses the right of public employees to join unions and the right of their unions to engage in advocacy and to petition government in their behalf. Thus, the first amendment is violated by state action whose purpose is either to intimidate public employees from joining a union or from taking an active part in its affairs or to retaliate against those who do.
Boddie v. City of Columbus, Miss., 989 F.2d 745, 749 (5th Cir.
1993), quoting Professional Ass’n of College Educators v. El Paso
County Community College Dist., 730 F.2d 258, 262 (5th Cir. 1984)
(citations omitted).
To prevail on his First Amendment retaliation claim, Hitt
had to show that (1) he suffered an adverse employment action, (2)
his interest in “associating” outweighed the constable’s interest
in efficiency, and (3) his protected activity was a substantial or
motivating factor in the adverse employment action. Breaux v. City
7 of Garland, 205 F.3d 150, 156, 157 n.12 (5th Cir. 2000); Boddie,
989 F.2d at 747. Connell’s principal arguments on the merits focus
on the third element of causation. He contends that Hitt’s
participation in union activity was not a motivating factor in his
discharge because the county civil service commissioners (who had
no retaliatory animus) actually made the decision or,
alternatively, Connell fired Hitt because of the bomb threat. The
jury concluded, however, that Constable Connell made the decision
to fire Hitt and that he did so in retaliation for Hitt’s protected
activity. Their verdict may be overturned only if, “after viewing
the trial record in the light most favorable to the verdict, there
is no legally sufficient evidentiary basis for a reasonable jury to
have found for the prevailing party.” Mato v. Baldauf, 267 F.3d
444, 450-51 (5th Cir. 2001)(quotations and citations omitted).
A. Statute of Limitations
Connell’s contention that this suit was time-barred is
easily rejected. While Texas’s two-year statute of limitations
applied to Hitt’s constitutional injury claims, Piotrowski v. City
of Houston, 237 F.3d 567, 576 (5th Cir. 2001), the date a § 1983
claim accrues is governed by federal, not state law. The
limitations period begins to run when the plaintiff “becomes aware
that he has suffered an injury or has sufficient information to
know that he has been injured.” Helton v. Clements, 832 F.2d 332,
335 (5th Cir. 1987).
8 Connell tries to argue that Hitt’s retaliation claim
accrued at some time before his March 1997 termination, either when
Hitt “felt his job was threatened” at the October 1995 office
meeting; or when Hitt acknowledged in a December 1995 memo that he
was afraid he was going to be fired; or when Hitt received a
proposed notice of termination on February 14, 1997. If the cause
of action accrued on any of these dates, then Hitt’s lawsuit --
filed on February 16, 1999 -- would not be timely.
But neither the perception of a threat to one’s job, nor
fear of being fired, nor even the proposed notice of firing
constitutes an actionable injury. In this context, the injury is
unlawful retaliation resulting in an “adverse employment action,”
such as a discharge, demotion, or formal reprimand. See Breaux,
205 F.3d at 157-58. Hitt was injured, and his cause of action
accrued, when his employment was terminated on March 5, 1997. The
lawsuit was timely.2
B. The Civil Service Commission
2 Connell’s argument rests on a misreading of the Supreme Court’s decision in Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980). In Ricks, the plaintiff alleged that the college unlawfully discriminated against him when it denied him tenure. After denying him tenure, however, the college offered Ricks a “terminal” employment contract; both parties understood that Ricks had to leave at the end of the year. The Supreme Court held that the statute of limitations began to run when the college reached a final decision denying tenure, rather than when Ricks’s employment ultimately ceased. The result hinged on the fact that Ricks complained about a single adverse employment action: the denial of tenure. As the Court clearly explained, “If Ricks intended to complain of a discriminatory discharge, he should have identified the alleged discriminatory acts that continued until, or occurred at the time of, the actual termination of his employment. But the complaint alleges no such facts.” Ricks, 449 U.S. at 255-58, 101 S.Ct. at 503-04.
9 The second (and most difficult) question in this case is
the legal effect of the Bexar County Civil Service Commission’s
decision upholding the termination of Hitt’s employment. Connell
recognized the importance of this fact, but he vacillated between
characterizing the commission, on one hand, as a quasi-judicial
body whose findings of fact were entitled to preclusive effect in
this § 1983 action; and, on the other, as an executive board, which
has the final decision-making power with respect to all personnel
matters in Bexar County.
In his motion for summary judgment, Connell urged the
court to give issue or claim preclusive effect to the commission’s
finding that Hitt made a credible bomb threat that warranted
dismissal. As Connell pointed out, the Supreme Court has “long
favored application of the common-law doctrines of collateral
estoppel (as to issues) and res judicata (as to claims) to those
determinations of administrative bodies that have attained
finality.” Astoria Fed. Sav. & Loan Ass’n. v. Solimino, 501 U.S.
104, 107, 111 S.Ct. 2166, 2169 (1991). Further, federal courts
must ordinarily give a state agency’s decision “the same preclusive
effect to which it would be entitled in the state’s courts.” Univ.
of Tennessee v. Elliott, 478 U.S. 788, 799, 106 S.Ct. 3220, 3226
(1986). This court has implied, however, that federal rules of
claim preclusion may apply to determine whether § 1983 claims are
barred from litigation in federal court by the outcome of prior
10 unreviewed state administrative adjudications. Frazier v. King,
873 F.2d 820, 823-25 (5th Cir. 1989).3 The magistrate judge found,
in a ruling adopted by the district court, that the civil service
commission’s decision was entitled neither to claim nor issue
preclusive effect on Hitt’s subsequent § 1983 action. Whether
those conclusions were correct or not is of no moment, since
Connell has not appealed them.
Instead, the argument Connell ultimately adopted at trial
and now pursues on appeal is that the Bexar County Civil Service
Commission -- rather than Constable Connell -- is the final
decision-maker with respect to employment decisions in the
constables’ offices. It is beyond dispute that the commissioners
conducted an independent inquiry into Hitt’s discharge and were not
motivated by any improper motive. Consequently, if the commission
is the final decision-maker, then the causal connection between
3 Frazier opined, over a dissent and before Astoria was decided, that federal preclusion law, if applicable, would not prevent a plaintiff’s filing a § 1983 claim following state administrative proceedings. 873 F.2d at 824-25. But the court specifically declined to decide whether federal or state claim preclusion applied. Since Frazier and Astoria, the circuits, curiously in light of Astoria’s unequivocal statement, have split over whether to follow state claim preclusion principles in regard to § 1983 claims that are filed in federal court after unreviewed state administrative proceedings. Compare Miller v. County of Santa Cruz, 39 F.3d 1030, 1037-38 and n.7 (9th Cir. 1994) (state claim preclusion rules generally apply), with Edmundson v. Borough of Kennett Square, 4 F.3d 186 (3d Cir. 1993) (no preclusion for non-attorney state administrative tribunals), and Dionne v. Mayor and City Council of Baltimore, 40 F.3d 677, 682-84 (3d Cir. 1994) (federal claim preclusion governs). To her credit, the magistrate judge applied a state law claim preclusion rule. The applicability of the state law of issue preclusion, also applied, is not in doubt. See Univ. of Tennessee v. Elliott, supra; United States v. State of Texas, 158 F.3d 209, 304 (5th Cir. 1998).
11 Hitt’s constitutionally protected activity and the adverse
employment action is broken, and Connell may not be held liable.
See Mato v. Baldauf, 267 F.3d 444, 450 (5th Cir. 2001); Long v.
Eastfield College, 88 F.3d 300, 307 (5th Cir. 1996).
In most “causal connection” cases, the determinative
question is whether the discriminatory or retaliatory motive of a
subordinate employee may be imputed to the titular decision-maker.
Id. A decision-maker may serve as the conduit of the subordinate’s
improper motive, for example, if he merely “rubber-stamps” the
recommendation of a subordinate. This case, however, poses the
logically antecedent question how to identify the official
decision-maker.
The official or formal decision-maker may often be
identified by a rule, e.g., an employee handbook or a company
organizational chart. For public entity employers, it is
appropriate to look to the statutory authority of the official or
board that is alleged to have made the decision. Unlike a Texas
school board, for example,4 a county civil service commission does
not have express statutory responsibility to act as the final
decision-maker with respect to individual employment decisions.
The relevant statute requires only that each civil service
4 See TEX. EDUC. CODE § 21.211 (authorizing school boards to “terminate a term contract and discharge a teacher at any time for . . . good cause as determined by the board”).
12 commission “adopt, publish, and enforce rules” regarding the
selection of county employees; promotions, seniority, and tenure;
layoffs and dismissals; disciplinary actions; grievance procedures;
and similar matters. TEX. LOCAL GOVT. CODE § 158.009(a). But the
statute imposes no superintending responsibility over individual
employment decisions. While it is conceivable that a commission
could promulgate a rule that no employment decision becomes final
until approved by the commission, no such rule is present here.
Under its governing rules, the commission is authorized
to review and approve, reverse or modify an adverse employment
decision if an employee elects to appeal it. But the mere
authority to review an employment decision is not decisive. The
commission became involved as an adjudicative tribunal after Hitt
chose to appeal his notice of termination. Its task was to review
Constable Connell’s decision for conformity with applicable law and
regulations, not to initiate Connell’s action or generally
superintend Connell’s employment practices.
In light of these procedures, Connell’s reliance on the
Eleventh Circuit’s decision in Stimpson v. City of Tuscaloosa, 186
F.3d 1328 (11th Cir. 1999), is misplaced. In that Title VII
retaliation case, Stimpson, a police officer, alleged that the City
of Tuscaloosa was motivated unlawfully when it fired her. The
Eleventh Circuit emphasized three times in its brief opinion that
Alabama law unequivocally deprives the city of power to discharge
13 a police officer and that the authority to terminate employment
rests solely with a statutorily-created civil service board.
Id. at 1330, 1331, 1332. Stimpson thus held that the City of
Tuscaloosa could not be liable for retaliation because the civil
service board was, as a matter of law, the actual decision-maker,
and there was no evidence that the board was a mere conduit for the
city’s supposed discriminatory motive.
Just as clearly, the Bexar County Civil Service
Commission did not assume final decisionmaking authority. The
commission did not finalize a decision that Constable Connell had
merely recommended or proposed. Although the commission did
conduct its own review of Hitt’s termination, it did so in a quasi-
judicial capacity.
C. Qualified Immunity and Mt. Healthy
In the third issue raised on appeal, Constable Connell
seeks to avail himself of the principle that a public employer may
escape liability by proving that it would have taken the same
adverse employment action “even in the absence of the protected
conduct.” Gerhart v. Hayes, 217 F.3d 320, 321 (5th Cir.
2000)(citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429
U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)). Connell
contends that he is entitled to qualified immunity because an
objectively reasonable officer would have believed that he could
14 lawfully terminate Hitt’s employment -- notwithstanding Hitt’s
involvement with the union -- because of the bomb threat against
Deputy North and Chief Deputy Horn. Cf. Gonzales v. Dallas County,
Texas, 249 F.3d 406, 412 (5th Cir. 2001).
Connell fails to apprehend the significance of the jury
finding that he fired Hitt because of Hitt’s union membership and
not because of the bomb threat. The jury was instructed on
Connell’s Mt. Healthy defense: In order to find a violation of
Hitt’s rights, they had to decide, inter alia,
whether the defendant has shown by a preponderance of the evidence that the action he took against the plaintiff was for other reasons, regardless of whether or not the plaintiff exercised his protected association activity. If you find that the defendant would have taken the same action against the plaintiff for reasons apart from the association activity, then your verdict should be for the defendant.
The jury verdict rejects Connell’s explanation of the employment
decision. Their factual finding is supported in the record.
See Boddie v. City of Columbus, Miss., 989 F.2d 745, 748 (5th Cir.
1993). No reasonable officer could have concluded that firing Hitt
because of his union affiliation was legally permissible. Id.
Further, because the jury discredited Connell’s explanation, the
basis for his qualified immunity contention was vitiated.5
5 The jury verdict distinguishes this case from Gonzales v. Dallas County, 249 F.3d 406 (5th Cir. 2001), in which summary judgment was granted to a constable who fired one of his deputies at least in part because of the deputy’s undisputed use of excessive force. Here, the jury had to determine, whether the disputed bomb threat was a credible threat and an actual motivating
15 D. Evidentiary Rulings
Connell contends that the district court committed
reversible error in admitting into evidence (1) testimony regarding
disciplinary actions that Connell took against Mullins and other
deputies and (2) the audiotape recordings of several meetings and
conversations involving Connell. We review the district court’s
decision to admit this evidence for an abuse of discretion. United
States v. Vega, 22 F.3d 789, 803 (5th Cir. 2000).
Other deputies, including Ray Mullins, were allowed to
testify that they were discharged or otherwise discriminated
against because of their participation in the union. Connell
contends that admitting this evidence violated Federal Rules of
Evidence 404 and 403, inasmuch as the other deputies’ testimony was
used “to show that Connell’s actions with other employees
supposedly proves [sic] his conduct in Hitt’s case is improper”;
and, even assuming this testimony was admissible, the danger of
unfair prejudice outweighed its probative value. This testimony
was admissible, however, as proof of Connell’s motive in firing
Hitt. FED. R. EVID. 404(b). Moreover, the testimony was admissible
to impeach Connell’s statements on multiple occasions that he was
“a union man” and that he had no animus against TCOPS or any other
factor in Hitt’s firing, and they found against Connell.
16 police union. The district court did not abuse its discretion in
admitting this evidence.
Connell’s second argument is that the district court
erred in admitting two audiotapes (as well as transcripts of those
tapes) that were not properly authenticated. We disagree. Both
deputies who recorded Connell’s statements testified about how they
made the recordings, and Connell does not dispute their
identification of his voice on the tapes. Connell has not produced
sufficient evidence to cast doubt on the reliability of the tapes
or the transcripts prepared from them.
E. Compensatory Damages
Connell challenges the jury’s award of $300,000 in
compensatory damages as excessive because Hitt presented little or
no evidence of his nonpecuniary damages. We agree.
The verdict form did not separate pecuniary and non-
pecuniary damages. However, during his closing argument, Hitt’s
attorney argued that lost earnings, both past and future, amounted
to $76,000. Hitt’s attorney then explained the jury question on
damages:
Interrogatory Number 3 is the money issue. . . I think you start there with the basic lost income of [$]76,000, and then whatever you ladies feel the loss of retirement, loss of job satisfaction, worry about no job, embarrassment within the law enforcement field. What’s all that worth in addition to the [$]76,000? I’ll leave that to you. But it should be a reasonably large sum of money.
17 Based on this representation to the jury, there is no plausible
alternative but that the jury awarded Hitt $224,000 in non-
pecuniary damages for mental anguish, loss of job satisfaction and
prestige, and embarrassment.
The question, therefore, is whether Hitt’s evidence of
non-pecuniary damages is legally sufficient to warrant an award of
$224,000. Our review of non-pecuniary damages is for abuse of
discretion. Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1046 (5th
Cir. 1998).
This court has articulated in detail the kind of evidence
needed to support compensatory damages for mental anguish or
emotional distress. See, e.g., Vadie v. Mississippi State Univ.,
218 F.3d 365, 376 (5th Cir. 2000); Brady v. Fort Bend County, 145
F.3d 691, 718-20 (5th Cir. 1998); Patterson v. P.H.P. Healthcare
Corp., 90 F.3d 927, 940 (5th Cir. 1996). The same principles would
logically apply to other nonpecuniary types of damages such as
those urged by Hitt. For starters, we have emphasized that “hurt
feelings, anger and frustration are part of life,” and are not the
types of emotional harm that could support an award of damages.
Patterson, 90 F.3d at 940. The plaintiff must instead present
specific evidence of emotional damage: “[T]here must be a ‘specific
discernable injury to the claimant’s emotional state,’ proven with
evidence regarding the ‘nature and extent’ of the harm.” Brady,
145 F.3d at 718 (quoting Patterson, 90 F.3d at 938, 940). To meet
18 this burden, a plaintiff is not absolutely required to submit
corroborating testimony (from a spouse or family member, for
example) or medical or psychological evidence. Brady, 145 F.3d at
718, 720. The plaintiff’s own testimony, standing alone, may be
sufficient to prove mental damages but only if the testimony is
“particularized and extensive” enough to meet the specificity
requirement discussed above: “‘Neither conclusory statements that
the plaintiff suffered emotional distress nor the mere fact that a
constitutional violation occurred supports an award of compensatory
damages.’” Brady, 145 F.3f at 720, 718 (quoting Price v. City of
Charlotte, 93 F.3d 1241, 1254 (4th Cir. 1996)).
Hitt did not satisfy these standards. The record is
devoid of any corroborating evidence with respect to Hitt’s
emotional distress or other elements of nonpecuniary damage. There
is no medical evidence, no testimony from family members or co-
workers, no evidence of physical manifestations of distress. In
sum, all the evidence that the jury heard was Hitt’s testimony that
his discharge
was emotionally trying. I was depressed. I was out of work. I was embarrassed because it never should have happened. And it made me very defensive in terms of applying for jobs and having to go through and explain, if it got to that point what had gone on and why I was out looking for work.
I’ve been around law enforcement in Bexar County for a number of years. And people ask you, hey, what’s going on. You know, how come you got fired. It’s kind of a
19 blight on your reputation, and it does affect you emotionally.
At that point, Hitt’s attorney turned to the question of lost
income. Aside from a few other scattered statements, the quoted
testimony is all the evidence of mental anguish that Hitt
presented.
Our conclusion in Brady applies equally well to this
case: The plaintiff’s testimony is “vague, conclusory, and
uncorroborated . . . . [and] cannot legally support mental anguish
damages.” Brady, 145 F.3d at 720. The district court thus abused
its discretion in entering judgment for Hitt in the amount of
$300,000. The evidence presented at trial supports the $76,000 in
damages for lost income but not the remaining $224,000 in non-
pecuniary damages.
F. Attorney’s fees
In a consolidated appeal, Connell challenges the district
court’s decision to award attorney’s fees and expenses in the
amount of $88,487.94 to Hitt’s attorney. See 42 U.S.C. § 1988.
Appellate review of this award would have been hampered in any
event by appellant’s apparent failure to include the district court
decision in the appellate record. But because we have
substantially reduced the judgment, it is prudent to remand the fee
award for reconsideration. We express no opinion on the award.
20 III. CONCLUSION
In Cause No. 01-50117, we AFFIRM the judgment of
liability, but VACATE the award of damages and REMAND with
Instructions to enter judgment for $76,000. In Cause No. 01-51010,
the district court’s judgment awarding attorney’s fees is VACATED
and REMANDED for reconsideration in light of this opinion.
AFFIRMED in part, VACATED in part, and REMANDED.
21 CARL E. STEWART, Circuit Judge, concurring in part and dissenting in part.
I concur with the majority’s resolution of the liability issues and t he affirmance of Hitt’s
$76,000 lost wages award in cause No. 01-50117. I also agree that the jury’s mental anguish award
of $224,000 is excessive because Hitt’s evidence on this claim was minimal. However, I do not
believe that the solution is to zero out the award completely. See Vadie v. Mississippi, 218 F.3d 365,
375-79 (5th Cir. 2000) (finding an award of $300,000 in mental anguish damages under Title VII was
excessive where the only evidence supporting a finding of emotional injury was the plaintiff's own
testimony, and concluding that because the evidence presented supported an award no greater than
$10,000, either remittitur or a new trial was required).
I respectfully dissent from the majority view that Hitt failed to present sufficient evidence to
support some award for mental anguish. In Oden v. Oktibbeha County, Mississippi, we determined
that there was sufficient evidence to support a jury award of $20,000 in compensatory damages for
mental anguish when the only evidence submitted by Deputy Sheriff Oden was his own testimony that
as a result of the defendants’ discrimination, he experienced stress, sleeplessness, betrayal, and shame.
246 F.3d 458, 470-71 (5th Cir. 2001); See also Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1046
(5th Cir. 1998) (concluding that the evidence, which consisted solely of Migis’ testimony, was
sufficiently detailed to preclude this court from holding that the district court abused its discretion
in awarding $5,000 in compensatory damages for mental anguish); Williams v. Trader Publ'g Co., 218
F.3d 481 (5th Cir. 2000) (upholding an award of $100,000 in compensatory damages for emotional
distress, premised solely on Williams’ testimony regarding her "severe emotional distress," "sleep
22 loss," "severe loss of weight," and "beginning smoking"); Forsyth v. City of Dallas, Tex., 91 F.3d
769, 775 (5th Cir. 1996) (upholding an emotional distress award of $100,000 that was premised on
the plaintiff's testimony describing "depression, weight loss, intestinal troubles, and marital
problems").
In the instant case, Deputy Constable Hitt testified that his termination
was emotionally trying. I was depressed. I was out of work. I was embarrassed because it never should have happened. And it made me very defensive in terms of applying for jobs and having to go through and explain, if it got to that point what had gone on and why I was out looking for work. I’ve been around law enforcement in Bexar County for a number of years. And people ask you, hey, what’s going on. You know, how come you got fired. It’s kind of a blight on your reputation, and it does affect you emotionally.
Hitt’s claim for some compensation is supported by this court’s holdings in Forsyth, Migis, Oden,
Vadie, and Williams. In these cases, as in the instant case, there was no corroborating evidence, only
the testimony of the plaintiffs. In addition, Hitt’s testimony is arguably comparable to that of Deputy
Sheriff Oden, who recovered a $20,000 award from a jury based solely on his testimony.
Along the spectrum of awards that have previously been upheld by this court, it is debatable
what specific amount of mental anguish damages Hitt is entitled to. However, it is clear that he is
entitled to an award that is greater than zero. Thus, for the foregoing reasons, I would vacate the
jury’s mental anguish award of $224,000 and either remit the award down to $20,000, or remand to
the district court for a new trial on damages. In cause No. 01-51010, I concur in the remand of the
attorney’s fees award for reconsideration in light of the overall reduction of the jury award.
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