UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
_______________________
No. 00-60612
______________________
PEGGY THOMPSON,
Plaintiff/Appellee-Cross-Appellant,
versus
CITY OF TUPELO, DAVID LEDBETTER, In His Individual Capacity,
Defendants/Appellants-Cross-Appellees.
_________________________________________________________________
Appeals from the United States District Court for the Northern District of Mississippi Civil Docket #1:98-CV-226 _________________________________________________________________
July 26, 2001 Before REYNALDO G. GARZA, DAVIS, and JONES, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
Peggy Thompson sued the city of Tupelo, Mississippi, and
then-deputy police chief David Ledbetter after her discharge as a
police officer, alleging sex discrimination and retaliation for the
exercise of her First Amendment rights. A jury found in her favor.
The trial court entered judgment on the verdict for about
* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. $400,000.00 against both defendants, including $300,000.00 in non-
pecuniary damages for mental and emotional anguish against the City
and $50,000.00 in punitive damages against Ledbetter (who is not a
party to this appeal). The City of Tupelo asserts a number of
errors on appeal, but we find merit only in its contention that the
award of non-economic damages was excessive. Further, we agree
with Thompson’s contention, made in her cross-appeal, that she is
entitled to reinstatement from the date of the jury verdict. The
judgment is affirmed in part but must be vacated and the case
remanded on these points.
The City’s challenges to the verdict, although not
frivolous, cannot overcome the substantial hurdle that any
challenge to an adverse jury verdict faces. This court may not
reverse the award unless no reasonable jury could have found sex
discrimination or retaliation for Thompson’s exercise of her
protected right to pursue an earlier sex discrimination lawsuit.
Boeing Company v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (en
banc), overruled on other grounds by Gautreaux v. Scurlock Marine,
Inc., 107 F.3d 331 (5th Cir. 1997) (en banc). Anterior to the
sufficiency questions, however, are the City’s assertions that the
court erroneously admitted (1) evidence shielded by the attorney-
client privilege and (2) evidence of non-comparable claims of sex
discrimination within the Tupelo Police Department. The trial
2 court almost surely erred in the first instance, admitting over the
City’s objection the substance of a conversation among city
officials and their attorneys in litigation matters relating to
Thompson. The fact that a former City employee (who participated
in the meeting while he was a City employee) volunteered to testify
about the conversation at trial cannot waive the City’s
confidentiality privilege. Moreover, the admission of tales of
discrimination by other former female Tupelo applicants or law
enforcement officers may not have complied with the standards for
admissibility recently reiterated in Wyvill v. United Companies
Life Insurance Co. 212 F.3d 296, 302-304 (5th Cir. 2000).
The trial court’s possible errors did not, however,
substantially harm Tupelo’s defense. See Fed. R. Civ. P. 61. The
jury could have believed the attestation of Thompson’s excellent
job performance from police department officials with whom she had
worked. It could have believed that Deputy Chief Ledbetter had
made various statements indicating his discomfort with women police
officers and admonishing Thompson, in connection with her earlier
suit, that no one who sued the police department remained employed
there. The jury could have concluded that Ledbetter spearheaded
the investigation that led to Thompson’s discharge less than a
month after she settled the previous case with the City. It could
have concluded that the proffered reasons for her discharge – the
3 WalMart parking incident; the cigarette burn hole in her police
car; and the collision with a civilian vehicle – were overblown or
mischaracterized to Thompson’s detriment. These inferences were
not the only possible inferences to draw in a hotly contested case,
but they are certainly plausible based on the evidence. The
liability verdict must stand.
With regard to the $300,000 judgment for non-economic
damages, the City urges a remittitur to align this amount both with
Thompson’s slim proof of such damages and with other recent Fifth
Circuit cases. This court has held that a plaintiff who seeks
damages for emotional injury following an adverse employment action
must prove “a ‘specific discernable injury to the claimant’s
emotional state,’ . . . proven with evidence regarding the ‘nature
and extent’ of the harm.” Brady v. Fort Bend County, 145 F.3d 691,
718 (5th Cir. 1998), cert. denied, 525 U.S. 1105 (1999), quoting
Patterson v. PHP Health Care Corp., 90 F.3d 927, 938, 940 (5th Cir.
1996). In Brady and Patterson, verdicts for non-economic damages
based on emotional distress were vacated for lack of specific
proof. The two decisions are based on the Supreme Court’s
requirement that compensatory damages for emotional distress “be
supported by competent evidence concerning the injury.” Carey v.
Piphus, 435 U.S. 247, 264 n.20, 98 S.Ct. 1042 (1978). Both
4 decisions discuss the law extensively, obviating the need for
repetition here.
Only a year ago, Brady and Patterson were reinforced by
a decision in which we ordered remittitur of a $300,000 mental
anguish award to $10,000 in a Title VII retaliation case. Vadie v.
Mississippi State Univ., 218 F.3d 365, 375-78 (5th Cir. 2000).
Vadie’s testimony, uncorroborated by medical evidence, was that he
suffered from sleeplessness “for months at a time,” headache, and
nausea; and that he remained “under severe doctor surveillance.”
Id. at 377. This court found the testimony entirely
disproportionate to Vadie’s injury.
In another case, however, this court summarily upheld
non-economic damage verdicts of $100,000 and $75,000 based on two
plaintiffs’ specific testimony that they endured depression, weight
loss, intestinal troubles, sleeplessness and marital problems
following retaliatory reassignments by the police department where
they worked. Forsyth v. City of Dallas, 91 F.3d 769, 774 (5th Cir.
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UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
_______________________
No. 00-60612
______________________
PEGGY THOMPSON,
Plaintiff/Appellee-Cross-Appellant,
versus
CITY OF TUPELO, DAVID LEDBETTER, In His Individual Capacity,
Defendants/Appellants-Cross-Appellees.
_________________________________________________________________
Appeals from the United States District Court for the Northern District of Mississippi Civil Docket #1:98-CV-226 _________________________________________________________________
July 26, 2001 Before REYNALDO G. GARZA, DAVIS, and JONES, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
Peggy Thompson sued the city of Tupelo, Mississippi, and
then-deputy police chief David Ledbetter after her discharge as a
police officer, alleging sex discrimination and retaliation for the
exercise of her First Amendment rights. A jury found in her favor.
The trial court entered judgment on the verdict for about
* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. $400,000.00 against both defendants, including $300,000.00 in non-
pecuniary damages for mental and emotional anguish against the City
and $50,000.00 in punitive damages against Ledbetter (who is not a
party to this appeal). The City of Tupelo asserts a number of
errors on appeal, but we find merit only in its contention that the
award of non-economic damages was excessive. Further, we agree
with Thompson’s contention, made in her cross-appeal, that she is
entitled to reinstatement from the date of the jury verdict. The
judgment is affirmed in part but must be vacated and the case
remanded on these points.
The City’s challenges to the verdict, although not
frivolous, cannot overcome the substantial hurdle that any
challenge to an adverse jury verdict faces. This court may not
reverse the award unless no reasonable jury could have found sex
discrimination or retaliation for Thompson’s exercise of her
protected right to pursue an earlier sex discrimination lawsuit.
Boeing Company v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (en
banc), overruled on other grounds by Gautreaux v. Scurlock Marine,
Inc., 107 F.3d 331 (5th Cir. 1997) (en banc). Anterior to the
sufficiency questions, however, are the City’s assertions that the
court erroneously admitted (1) evidence shielded by the attorney-
client privilege and (2) evidence of non-comparable claims of sex
discrimination within the Tupelo Police Department. The trial
2 court almost surely erred in the first instance, admitting over the
City’s objection the substance of a conversation among city
officials and their attorneys in litigation matters relating to
Thompson. The fact that a former City employee (who participated
in the meeting while he was a City employee) volunteered to testify
about the conversation at trial cannot waive the City’s
confidentiality privilege. Moreover, the admission of tales of
discrimination by other former female Tupelo applicants or law
enforcement officers may not have complied with the standards for
admissibility recently reiterated in Wyvill v. United Companies
Life Insurance Co. 212 F.3d 296, 302-304 (5th Cir. 2000).
The trial court’s possible errors did not, however,
substantially harm Tupelo’s defense. See Fed. R. Civ. P. 61. The
jury could have believed the attestation of Thompson’s excellent
job performance from police department officials with whom she had
worked. It could have believed that Deputy Chief Ledbetter had
made various statements indicating his discomfort with women police
officers and admonishing Thompson, in connection with her earlier
suit, that no one who sued the police department remained employed
there. The jury could have concluded that Ledbetter spearheaded
the investigation that led to Thompson’s discharge less than a
month after she settled the previous case with the City. It could
have concluded that the proffered reasons for her discharge – the
3 WalMart parking incident; the cigarette burn hole in her police
car; and the collision with a civilian vehicle – were overblown or
mischaracterized to Thompson’s detriment. These inferences were
not the only possible inferences to draw in a hotly contested case,
but they are certainly plausible based on the evidence. The
liability verdict must stand.
With regard to the $300,000 judgment for non-economic
damages, the City urges a remittitur to align this amount both with
Thompson’s slim proof of such damages and with other recent Fifth
Circuit cases. This court has held that a plaintiff who seeks
damages for emotional injury following an adverse employment action
must prove “a ‘specific discernable injury to the claimant’s
emotional state,’ . . . proven with evidence regarding the ‘nature
and extent’ of the harm.” Brady v. Fort Bend County, 145 F.3d 691,
718 (5th Cir. 1998), cert. denied, 525 U.S. 1105 (1999), quoting
Patterson v. PHP Health Care Corp., 90 F.3d 927, 938, 940 (5th Cir.
1996). In Brady and Patterson, verdicts for non-economic damages
based on emotional distress were vacated for lack of specific
proof. The two decisions are based on the Supreme Court’s
requirement that compensatory damages for emotional distress “be
supported by competent evidence concerning the injury.” Carey v.
Piphus, 435 U.S. 247, 264 n.20, 98 S.Ct. 1042 (1978). Both
4 decisions discuss the law extensively, obviating the need for
repetition here.
Only a year ago, Brady and Patterson were reinforced by
a decision in which we ordered remittitur of a $300,000 mental
anguish award to $10,000 in a Title VII retaliation case. Vadie v.
Mississippi State Univ., 218 F.3d 365, 375-78 (5th Cir. 2000).
Vadie’s testimony, uncorroborated by medical evidence, was that he
suffered from sleeplessness “for months at a time,” headache, and
nausea; and that he remained “under severe doctor surveillance.”
Id. at 377. This court found the testimony entirely
disproportionate to Vadie’s injury.
In another case, however, this court summarily upheld
non-economic damage verdicts of $100,000 and $75,000 based on two
plaintiffs’ specific testimony that they endured depression, weight
loss, intestinal troubles, sleeplessness and marital problems
following retaliatory reassignments by the police department where
they worked. Forsyth v. City of Dallas, 91 F.3d 769, 774 (5th Cir.
1996). Forsyth offers “slim guidance” to determine the sufficiency
of emotional distress testimony. Compare Brady, 145 F.3d at 720.
Forsyth also post-dates the controlling decision in Patterson.
This case more closely resembles Brady, Patterson and
Vadie than Forsyth. There is precious little testimony in a 940-
page record, at most a few pages, concerning Thompson’s emotional
5 distress damages. The gist of it is as follows: She took
antidepressants both before and after being fired; her only two
visits to a psychologist occurred during preparation for her two
lawsuits; other than stress, which she also experienced while
working for the Tupelo police department, she testified to no
specific emotionally rooted damages upon losing her job. She
repeatedly testified how much it meant to her to be a police
officer. But the record lacks any proof that objective signs of
mental distress, such as sleeplessness or stomach troubles, were
caused by her discharge. No medical expert testified for Thompson,
but our case law does not require it. Further, a friend, Bobby
Frazier, stated that he had seen her cry over her job loss trauma
and embarrassment.
A remittitur may be ordered to reduce a verdict that is
“contrary to right reason” or “entirely disproportionate to the
injury sustained.” Eiland v. Westinghouse Elec. Corp., 58 F.3d
176, 182-83 (internal citations omitted) (5th Cir. 1995). Similar
to Vadie, the evidence concerning severe emotional distress is
weak. On the other hand, unlike the plaintiff in Vadie, Thompson
lost her job. Consequently, we order a remittitur in the amount of
$250,000, reducing her non-economic damages to $50,000. Should
Thompson refuse to accept this reduction, we order a new trial on
this element of damages. Vadie, 218 F.3d at 378. This amount
6 seems to be the maximum that a jury could have awarded consistent
with our precedents on noneconomic damages.
On cross-appeal, Thompson urges that the district court’s
reinstatement order be modified to run from the date of the jury
verdict rather than at a later date, as the court ordered. Under
Boddie v. City of Columbus, 989 F.2d 745, 752 (5th Cir. 1993). The
court’s order was wrong. Thompson was entitled to compensation for
her lost wages from the date of verdict until reinstatement. The
City’s arguments concerning failure to mitigate are untimely raised
and we do not consider them.
For the foregoing reasons, the judgment is affirmed in
part but vacated in part and remanded (a) to award Thompson
reinstatement wages from the date of the verdict, and (b) to reduce
the emotional anguish damages to $50,000 or require a new trial on
Thompson’s non-economic damages.
AFFIRMED in part, VACATED in part and REMANDED with
instructions.