Benton v. U.S. Environmental Protection Agency et al
Filing
145
MEMORANDUM OPINION AND ORDER: The court grants in part and denies in part the 134 EPA's renewed Rule 50(b) motion for judgment as a matter of law, concludes that Benton is entitled to judgment in the sum of $1 for nominal damages, and denies the EPAs Rule 59(a) motion for a new trial. The court today enters judgment partially in favor of Benton and partially in favor of the EPA in accordance with this memorandum opinion and order. (Ordered by Chief Judge Sidney A Fitzwater on on 6/24/2014) (axm) Modified on 6/24/2014 (axm).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
MARVIN BENTON,
Plaintiff,
VS.
U.S. ENVIRONMENTAL
PROTECTION AGENCY;
GINA McCARTHY, Administrator
Defendant.
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Civil Action No. 3:06-CV-1591-D
(Consolidated with
Civil Action No. 3:07-CV-0144-D)
MEMORANDUM OPINION
AND ORDER
Following a jury verdict in favor of plaintiff Marvin Benton (“Benton”) on his claim
for retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
§ 2000e et seq., defendant Environmental Protection Agency (“EPA”) renews its motion for
judgment as a matter of law under Fed. R. Civ. P. 50(b), or, alternatively, moves for a new
trial under Rule 59(a). Concluding as a matter of law that the evidence in part supports and
in part does not support the jury’s verdict that the EPA retaliated against Benton, and that the
evidence does not support the jury’s award of compensatory damages, the court grants in part
and denies in part the EPA’s renewed Rule 50(b) motion and concludes that Benton is
entitled to judgment in the sum of $1 for nominal damages. The court denies the EPA’s
alternative motion under Rule 59(a) for a new trial, and it today enters judgment partially in
favor of Benton and partially in favor of the EPA in accordance with this memorandum
opinion and order.
I
Benton has been employed as an attorney with the EPA since May 1987. In January
2004 and December 2004 Benton filed complaints of race discrimination with the EPA
Office of Civil Rights and requested hearings before the Equal Employment Opportunity
Commission (“EEOC”). On May 24, 2005 Benton and the EPA entered into a settlement
agreement (“Settlement Agreement”) that resulted in the dismissal of Benton’s discrimination
claims. After the claims were settled, Benton received an official reprimand, a “minimally
satisfactory” rating on an annual performance appraisal, and was reassigned from a
supervisory position to a staff attorney position.
Benton filed the instant lawsuit, alleging that the EPA had retaliated against him, in
violation of Title VII, by (1) issuing to him an official reprimand on October 20, 2005
(“Official Reprimand”); (2) rating him as “minimally satisfactory” on an annual
“Performance Appraisal” for 2005 (“2005 Performance Review”); and (3) reassigning him
from his position of Branch Chief for the Water/RCRA Enforcement Branch for EPA Region
VI to the position of staff attorney, effective February 1, 2006. Benton also asserted claims
under the Whistleblower Protection Act of 1989 (“Whistleblower Protection Act”), 5 U.S.C.
§ 1211 et seq. and the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C.
§ 621 et seq.
The case was tried to a jury, which returned a verdict in Benton’s favor on his Title
VII retaliation claim and found that he was entitled to recover $150,000 in compensatory
damages. The jury found in favor of the EPA on Benton’s claims under the Whistleblower
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Protection Act and the ADEA. The EPA has renewed its motion for judgment as a matter
of law as to the components of the verdict that favor Benton. It moves in the alternative for
a new trial.1
II
“A motion for judgment as a matter of law ‘challenges the legal sufficiency of the
evidence to support the verdict.’” Jacobs v. Tapscott, 516 F.Supp.2d 639, 643 (N.D. Tex.
2007) (Fitzwater, J.) (quoting Hodges v. Mack Trucks, Inc., 474 F.3d 188, 195 (5th Cir.
2006)), aff’d, 277 Fed. Appx. 483 (5th Cir. 2008).
Judgment as a matter of law is appropriate with respect to an
issue if there is no legally sufficient evidentiary basis for a
reasonable jury to find for a party on that issue. This occurs
when the facts and inferences point so strongly and
overwhelmingly in the movant’s favor that reasonable jurors
could not reach a contrary verdict. In considering a Rule 50
motion, the court must review all of the evidence in the record,
drawing all reasonable inferences in favor of the nonmoving
party; the court may not make credibility determinations or
weigh the evidence, as those are jury functions. In reviewing
the record as a whole, the court must disregard all evidence
favorable to the moving party that the jury is not required to
believe. That is, the court should give credence to the evidence
favoring the nonmovant as well as that evidence supporting the
moving party that is uncontradicted and unimpeached, at least
to the extent that that evidence comes from disinterested
witnesses.
Brennan’s Inc. v. Dickie Brennan & Co., 376 F.3d 356, 362 (5th Cir. 2004) (brackets,
1
The court deferred entering a judgment following the jury verdict given its concerns
about whether all or any part of the verdict could stand. These motions are post-verdict
motions filed before the entry of judgment.
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citations, and internal quotation marks omitted). The court will “‘uphold a jury verdict
unless the facts and inferences point so strongly and so overwhelmingly in favor of one party
that reasonable [jurors] could not arrive at any verdict to the contrary.’” Goodner v. Hyundai
Motor Co., 650 F.3d 1034, 1039 (5th Cir. 2011) (quoting Cousin v. Trans Union Corp., 246
F.3d 359, 366 (5th Cir. 2001)). “In other words, the ‘jury verdict must be upheld unless
there is no legally sufficient evidentiary basis for a reasonable jury to find as the jury did.’”
Id. at 1039-40 (quoting Foradori v. Harris, 523 F.3d 477, 495 (5th Cir. 2008)).
III
Title VII prohibits an employer from taking an adverse employment action against
an employee because he has filed an employment discrimination charge. See 42 U.S.C.
§ 2000e-3(a); Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 62 (2006). “To
establish a prima facie case of retaliation, the plaintiff must establish that: (1) he participated
in an activity protected by Title VII; (2) his employer took an adverse employment action
against him; and (3) a causal connection exists between the protected activity and the adverse
employment action.” McCoy v. City of Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007)
(per curiam) (citing Banks v. E. Baton Rouge Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir.
2003)).2 The EPA moves for judgment as a matter of law on the second and third elements.
2
When analyzing Title VII retaliation cases that have not reached a jury, courts apply
the burden-shifting framework detailed in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Once the case has been fully tried, however, this framework becomes unimportant,
and a court “need not . . . parse the evidence into discrete segments corresponding to a prima
facie case, an articulation of a legitimate, [non-retaliatory] reason for the employer’s
decision, and a showing of pretext.” Rubinstein v. Adm’rs of the Tulane Educ. Fund, 218
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IV
The EPA argues that it is entitled to judgment as a matter of law because none of the
alleged actions taken against Benton constitutes an “adverse employment action.”
A
“The antiretaliation provision [of Title VII] seeks to prevent employer interference
with unfettered access to Title VII’s remedial mechanisms.” Burlington N., 548 U.S. at 68
(citation omitted). To constitute prohibited retaliation, an employment action must be
“materially adverse,” meaning an action that might “dissuade[] a reasonable worker from
making or supporting a charge of discrimination.” Id. (citations omitted). “The purpose of
this objective standard is ‘to separate significant from trivial harms’ and ‘filter out
complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of
abusive language, gender-related jokes, and occasional teasing.’” Stewart v. Miss. Transp.
Comm’n, 586 F.3d 321, 331 (5th Cir. 2009) (quoting Burlington N., 548 U.S. at 68).
Although “arguably adverse employment actions must be viewed in context,” McCoy, 492
F.3d at 560, “[a]n employee’s decision to report discriminatory behavior cannot immunize
that employee from those petty slights or minor annoyances that often take place at work and
that all employees experience.” Burlington N., 548 U.S. at 68. In other words, “Title VII
. . . does not set forth ‘a general civility code for the American workplace.’” Id. (quoting
F.3d 392, 402 (5th Cir. 2000). The question instead becomes “whether the record contains
sufficient evidence to support the jury’s ultimate findings.” Bryant v. Compass Grp. USA
Inc., 413 F.3d 471, 476 (5th Cir. 2005) (citation and internal quotation marks omitted).
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Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)).
B
The EPA argues that none of the three adverse actions on which Benton relies—the
Official Reprimand, the minimally satisfactory rating on the 2005 Performance Review, or
the reassignment to the position of staff attorney—qualifies as an “adverse employment
action” in the retaliation context. It contends that the Official Reprimand cannot qualify
because Benton did not prove that he suffered any serious negative consequences as a result
of the reprimand: the reprimand remained in his employment file for only two years, was
kept private from his colleagues, and there was no evidence that the reprimand resulted in
lower pay or had any effect on his job duties. The EPA maintains that the minimally
satisfactory rating on the 2005 Performance Review cannot constitute an adverse
employment action because there is no evidence that this performance review negatively
affected Benton’s pay grade or lowered his salary.
Finally, the EPA contends the
reassignment to the position of staff attorney does not constitute an adverse employment
action because Benton’s pay grade and annual salary did not change, and he presented no
evidence that he suffered a diminution in prestige or change in standing among his
coworkers or that his new position was less interesting and provided no opportunity for
advancement.
Benton responds that the Official Reprimand, 2005 Performance Review, and
involuntary reassignment from supervisory general attorney to staff attorney had definite
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negative consequences on his employment status and career and thus constituted a demotion.
He maintains that, as a supervisory general attorney, he was responsible for supervising and
managing a legal staff of approximately 14 to 15 attorneys, paralegals, and a secretary, and
that he held the position of Branch Chief for the Water/RCRA Branch in Region VI. He
contends that his involuntary reassignment to the Superfund legal branch as a staff attorney
stripped him of his supervisory responsibilities; ended his “career-enhancing”
responsibilities that included attending meetings and consulting with members of the Senior
Executive Service at EPA Region VI, senior managers at EPA headquarters, and other
federal departments and agencies; stripped him of his ability to help develop and make
enforcement policy for the EPA; stripped him of responsibility for budget management and
succession planning by mentoring and developing younger attorneys as they progressed in
their careers; and required him to move out of his private office and into a cubicle in open
space. Benton argues that the “demotion” to a staff attorney “was not commensurate with
career enhancement, but instead this demotion severely damaged and weakened [his] career
potential.” P. Br. 4.
The EPA replies that, although there is no dispute that Benton no longer supervised
attorneys after his move to the Superfund branch, he has cited no evidence demonstrating
that the reassignment cost him the ability to perform other functions, such as participating
in important meetings, helping develop Region VI policy, or mentoring younger attorneys.
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C
Benton does not argue that either the Official Reprimand or the minimally satisfactory
rating on his 2005 Performance Review was an adverse employment action. He does,
however, contend that his “demotion” to the staff attorney position constituted an adverse
employment action. The court therefore turns to this basis for his Title VII retaliation claim.
The Fifth Circuit has held, for purposes of a claim under 42 U.S.C. § 1983, that a
transfer that serves as a demotion qualifies as an adverse employment action. See Sharp v.
City of Houston, 164 F.3d 923, 933 (5th Cir. 1999). “To be equivalent to a demotion, a
transfer need not result in a decrease in pay, title, or grade; it can be a demotion if the new
position proves objectively worse—such as being less prestigious or less interesting or
providing less room for advancement.” Id. (citing Forsyth v. City of Dallas, 91 F.3d 769,
774 (5th Cir. 1996)); accord Alvarado v. Tex. Rangers, 492 F.3d 605, 612-13 (5th Cir.
2007). “Whether a transfer is objectively worse is a question of fact.” Fisher v. Dallas
Cnty., ___ F.R.D. ___, 2014 WL 1516178, at *7 (N.D. Tex. Apr. 18, 2014) (Fitzwater, C.J.)
(citing Sharp, 164 F.3d at 933).
It is undisputed that, prior to Benton’s reassignment, he held the position of Branch
Chief for the Water/RCRA Enforcement Branch for EPA Region VI, and that, in this
position, he supervised a staff of approximately fifteen, consisting of attorneys, paralegals,
and a secretary. It is also undisputed that, after Benton’s February 2006 reassignment to the
position of staff attorney for the Superfund legal branch, he no longer supervised other EPA
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employees. The jury could reasonably have found that an involuntary reassignment resulting
in the elimination of supervisory responsibilities could dissuade a reasonable worker from
asserting a charge of discrimination, and that the involuntary reassignment was an adverse
employment action. Accordingly, the EPA’s Rule 50(b) motion on this first ground is
denied.
V
The EPA next moves for judgment as a matter of law on the issue of causation.
A
The third element of a Title VII retaliation claim is that a causal connection exists
between the protected activity and the adverse employment action. McCoy, 492 F.3d at 557.
To satisfy this element, Benton must prove that his “protected activity was a but-for cause
of the alleged adverse action by [the EPA].” Univ. of Tex. Sw. Med. Ctr. v. Nassar, ___ U.S.
___, 133 S.Ct. 2517, 2534 (2013). In other words, this claim “require[s] proof that the desire
to retaliate was the but-for cause of the challenged employment action.” Id. at 2528. Benton
can “discharge this burden by presenting direct evidence of retaliation or by presenting
circumstantial evidence of retaliation.” Etienne v. Spanish Lake Truck & Casino Plaza,
L.L.C., 547 Fed. Appx. 484, 488 (5th Cir. 2013) (per curiam). He can rely on evidence that
the reasons given for taking the alleged adverse action are pretextual. “An employee
establishes pretext by showing that the adverse action would not have occurred ‘but for’ the
employer’s retaliatory reason for the action.” Hague v. Univ. of Tex. Health Sci. Ctr. at San
Antonio, ___ Fed. Appx. ___, 2014 WL 1257944, at *4 (5th Cir. Mar. 28, 2014) (citing
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Nassar, 133 S.Ct. at 2533-34). A plaintiff may demonstrate pretext “by showing that the employer’s
proffered explanation is unworthy of credence.” Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 143 (2000) (citation and internal quotation marks omitted). “An explanation is false or
unworthy of credence if it is not the real reason for the adverse employment action.” Laxton v. Gap
Inc., 333 F.3d 572, 578 (5th Cir. 2003).
B
The EPA contends that Benton’s retaliation claim fails as a matter of law because he
failed to prove that, “but for” his protected activity, he would not have been subjected to the
Official Reprimand, minimally successful rating on the 2005 Performance Review, and
reassignment. It maintains that the jury could not reasonably have found “but-for” causation
because Benton failed to prove that his immediate supervisor, Suzanne Murray (“Murray”),
had specific knowledge of his January 2004 EEOC complaint, and, without such knowledge,
it makes no sense to believe that she retaliated against him for his protected activity; the
temporal proximity between Benton’s January 2004 EEOC complaint and each of the
alleged adverse actions is far greater than the time period permitted by the Fifth Circuit; and
Benton did not establish that his protected activity was the “but for” cause of each alleged
employment action because he failed to provide any evidence that he would not have been
reprimanded, received the minimally satisfactory performance review, or been reassigned
in the absence of his protected activity.
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C
The court now applies the controlling standard, see supra § II, and determines as a
matter of law whether there was sufficient evidence for a reasonable jury to have found in
Benton’s favor on the element of causation.
Murray testified that she first learned that Benton had filed an EEOC complaint in
July 2005, when Cheryl Boyd (“Boyd”) complained that Benton had retaliated against her
because she would not testify in his EEOC case. The jury could reasonably have found from
this testimony that, as of July 2005, Murray knew that Benton had engaged in protected
activity. See Manning v. Chevron Chem. Co., 332 F.3d 874, 883 (5th Cir. 2003) (“We have
determined that, in order to establish the causation prong of a retaliation claim, the employee
should demonstrate that the employer knew about the employee’s protected activity.”
(citations omitted)); see also Chaney v. New Orleans Pub. Facility Mgmt., Inc., 179 F.3d
164, 168 (5th Cir. 1999) (“If an employer is unaware of an employee’s protected conduct
at the time of the adverse employment action, the employer plainly could not have retaliated
against the employee based on that conduct.”). Before Murray learned that Benton had
engaged in a protected activity, she had never negatively reviewed Benton’s job
performance. Benton testified that, in mid-2005, when the EPA implemented its new system
of rating employees using critical job elements, Murray met with him for a “mid-year”
review and did not provide any negative comments regarding his job performance. After
Murray learned about Benton’s EEOC case, however, she officially reprimanded him within
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approximately three months, and, just over three months after that, gave him a “minimally
satisfactory” performance rating and involuntarily reassigned him.3
A plaintiff alleging retaliation can satisfy the causal connection element by showing
“[c]lose timing between an employee’s protected activity and an adverse action against him.”
McCoy, 492 F.3d at 562. Such temporal proximity must generally be “very close.” Clark
Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (citations omitted). For example,
“a time lapse of up to four months” may be sufficiently close, Evans v. City of Houston, 246
F.3d 344, 354 (5th Cir. 2001), while a five-month lapse is not close enough without other
evidence of retaliation, Raggs v. Mississippi Power & Light Co., 278 F.3d 463, 472 (5th Cir.
2002). Here, only about three months elapsed between when Murray became aware that
Benton had engaged in protected activity and the first of a series of actions that culminated
in his being reassigned.
Benton does not rely on timing alone, however, to establish causation.4 The jury also
3
Benton testified that “previously, [he had] never received the kind of rating that [he]
got from Ms. Murray in [his] entire federal career,” spanning over 30 years. Tr. 3:121. In
his new position, Benton received an “exceeds expectations” rating on his annual
performance review for 2006. Although this performance review related to a different
position with presumably different “expectations,” the jury could take this fact into account
when weighing the evidence concerning Murray’s evaluation of Benton’s performance.
4
Benton maintains that he “has never contended or argued before this Court that his
Title VII claims of employer retaliation [are] based upon temporal proximity alone.” P. Br.
8. He relies on Mooney v. Lafayette County School District, 538 Fed. Appx. 447, 454 (5th
Cir. 2013), to argue that the “suspicious chronology of events” after he entered into the
Settlement Agreement and the “cumulative effect of all three” of the allegedly adverse
employment actions “was highly suspicious and more likely a causal link to Defendant’s
employer retaliation of Plaintiff.” P. Br. 8-9. In Mooney the Fifth Circuit held that the
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heard sufficient evidence of pretext. At trial, Murray testified about four non-retaliatory
reasons for the EPA’s decision to reassign Benton to the Superfund legal branch: he had
received a minimally satisfactory rating in his 2005 Performance Review, and, if he
continued in his current position, he would have to be put on a performance assistance plan;
his performance was unsatisfactory; he was not treating persons in his group with respect;
and there was a planned reorganization in the office, with Benton’s position as Branch Chief
being split into two positions.5 Benton introduced sufficient evidence for the jury to have
reasonably found that these proffered reasons for reassigning him were pretextual, and that
the EPA’s desire to retaliate was the but-for cause of his being reassigned.
For example, in the 2005 Performance Review, Murray focused on Benton’s lack of
initiative, failure to participate within the agency on a national level, and failure to provide
sound legal advice. Four of Benton’s program clients, however, testified that at no time
during 2005 had they complained to Murray or Division Director John Blevins about
Benton’s work performance or stated that they had a problem working with Benton. In
plaintiff could rely on a “chronology of events from which retaliation may plausibly be
inferred” to establish a prima facie case of First Amendment retaliation under 42 U.S.C. §
1983. Mooney, 538 Fed. Appx. at 454. The court need not decide whether Benton can rely
on a “suspicious chronology of events” in this Title VII retaliation case—which, unlike a
First Amendment retaliation case, requires “but-for” causation—because, in addition to his
evidence of suspicious timing, Benton presented evidence at trial from which a reasonable
jury could conclude that Murray’s reasons for Benton’s reassignment were pretextual.
5
The EPA contends that Benton was reassigned because his job was being split into
two positions, but the jury could reasonably have found that there was no reason why
Benton, having served as chief over both the RCRA and water branches, could not have
continued in a supervisory position over one of the branches once the position was split.
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addition, Patrick Rankin, an EPA attorney, testified that the legal conclusion Benton reached
in his controversial “Waters of the United States” memorandum was in fact legally correct.
Regarding Murray’s position that Benton was not treating persons in his group with respect,
several trial witnesses testified that they had never heard Benton raise his voice to anyone,
physically threaten anyone, act abrasively, treat anyone rudely, or conduct himself in an
unprofessional manner. Benton’s secretary, Lupe Ayala, testified that Benton was the “best
supervisor,” Tr. 2:174, and that “[i]n front of [her, Benton was] always nice to everybody”
and was “very respectful,” id. at 2:175. Lorraine Dixon, an attorney who worked under
Benton’s supervision, testified that she never saw Benton treat people in a belittling way, act
discourteously, or treat people inappropriately, and that Benton always conducted himself
in a professional manner.
Based on this evidence, the jury could reasonably have
disbelieved Murray’s testimony regarding her reasons for reassigning Benton and have found
that the reasons Murray gave for Benton’s reassignment were pretextual.
In sum, the evidence introduced at trial was sufficient for the jury reasonably to have
found but-for causation. The jury could reasonably have found that Murray’s proffered
reasons for reassigning Benton were not true. In particular, taking into account the evidence
that Benton had not received a negative performance review before Murray learned that he
had filed an EEOC complaint, and that he has not received a negative performance review
since his reassignment, a reasonable jury could have found that the proffered reasons for
Benton’s involuntary reassignment were pretextual, and that the but-for cause of this adverse
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employment action was retaliation for filing charges of discrimination with the EEOC.
Accordingly, the court denies this basis of the EPA’s motion for judgment as a matter of law.
VI
A
The EPA maintains that Benton failed to present any evidence to support the jury’s
award of $150,000 in compensatory damages, and that it is entitled to judgment as a matter
of law on Benton’s retaliation claim. Benton responds that the jury could rely on its own
common sense in assessing the demeanor and credibility of the witnesses and in assessing
the pain and suffering, humiliation, embarrassment, and loss of enjoyment of life that he has
endured since the acts of retaliation in 2005. He also contends that the jury could rely on the
documentary evidence of his emotional distress and humiliation that was contained in a
“Report of Investigation” that the EPA authored.
B
The Civil Rights Act of 1991 provides that a plaintiff who proves a Title VII claim
can recover compensatory damages.
Compensatory damages for emotional distress,
however, must “‘be supported by competent evidence concerning the injury.’” Giles v. Gen.
Elec. Co., 245 F.3d 474, 487 (5th Cir. 2001) (quoting Brady v. Fort Bend Cnty., 145 F.3d
691, 718 (5th Cir. 1998)); see also Salinas v. O’Neill, 286 F.3d 827, 830 (5th Cir. 2002)
(“Any award for emotional injury greater than nominal damages must be supported by
evidence of the character and severity of the injury to the plaintiff’s emotional well-being.”).
“Compensatory damages for emotional distress and other intangible injuries are not
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presumed from the mere violation of constitutional or statutory rights, but require specific
individualized proof, including how [the] Plaintiff was personally affected by the
discriminatory conduct and the nature and extent of the harm.” DeCorte v. Jordan, 497 F.3d
433, 442 (5th Cir. 2007) (citing Allison v. Citgo Petroleum Corp., 151 F.3d 402, 416-17 (5th
Cir. 1998)); see also Flowers v. S. Reg’l Physician Servs. Inc., 247 F.3d 229, 239 (5th Cir.
2001) (“[E]motional harm will not be presumed simply because the plaintiff is a victim of
discrimination. To demonstrate an actual . . . injury, the existence, nature, and severity of
emotional harm must be proved.” (brackets, citations, and internal quotation marks omitted)).
There are two requirements to prove emotional distress, the first
of which is specificity with respect to the alleged injury[.]
There must be a specific discernable injury to the claimant’s
emotional state, proven with evidence regarding the nature and
extent of the harm. Hurt feelings, anger and frustration are part
of life and are not the types of harm that could support a mental
anguish award. . . . Second, we require more than vague
allegations to establish existence of the injury. Because
emotional distress is fraught with vagueness and speculation,
and is easily susceptible to fictitious and trivial claims, we must
scrupulously analyze an award of compensatory damages for a
claim of emotional distress predicated exclusively on the
plaintiff’s testimony.
Giles, 245 F.3d at 488 (brackets, ellipses, citations, and internal quotation marks omitted).
Benton did not satisfy these standards. The record is devoid of any evidence with
respect to Benton’s alleged emotional distress. For example, there is no medical evidence,
no testimony from family members or coworkers, and no evidence of physical manifestations
of distress. Nor did Benton himself testify concerning any emotional damages. Benton
argues in his response brief that “[t]here was also in the trial record submitted documentary
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evidence . . . in which Plaintiff referred to the emotional distress and humiliation he had
endured.” P. Br. 24. The cited evidence, however, merely requests damages for emotional
distress. It does nothing to enable a reasonable jury to find that Benton in fact suffered the
types of injuries alleged (pain, suffering, and humiliation) or to explain the nature and extent
of the harm. See DeCorte, 497 F.3d at 442.
Although the jury could reasonably have found that the EPA retaliated against Benton
by involuntarily reassigning him, this is insufficient of itself to prove damages. See id.;
Flowers, 247 F.3d at 239. To recover more than nominal damages, Benton was required to
present evidence of “[t]he existence, nature, and severity of emotional harm” stemming from
the retaliation. See Flowers, 247 F.3d at 239. Benton simply failed to introduce any
evidence that would have enabled a reasonable jury to award compensatory damages.
C
Because the required evidence was not presented at trial, the court concludes as a
matter of law that Benton is only entitled to recover nominal damages in the sum of $1. A
plaintiff who establishes a violation of Title VII but fails to prove emotional distress or other
actual damages can recover nominal damages. See Patterson v. P.H.P. Healthcare Corp.,
90 F.3d 927, 941 (5th Cir. 1996) (vacating Title VII emotional distress award and remanding
to district court with instructions to award nominal damages), overruled on other grounds
by Williams v. Wal-Mart Stores, Inc., 182 F.3d 333 (5th Cir. 1999) (en banc) (per curiam);
Jones v. White, 2006 WL 3358646, at *5 (S.D. Tex. Nov. 17, 2006) (“Courts award nominal
damages in civil rights actions brought under 42 U.S.C. § 1981 or § 1983 or under
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employment discrimination statutes when the plaintiff has proven a civil rights deprivation
but cannot show actual damages.” (citing cases)); Hines v. Grand Casino of La.,
L.L.C.—Tunica-Biloxi Indians, 358 F.Supp.2d 533, 548 (W.D. La. 2005) (“More than a
‘nominal’ award for emotional damages in a Title VII context must ‘be supported by
competent evidence concerning the injury.’” (quoting Patterson, 90 F.3d at 937-38));
Jimenez v. Paw-Paw’s Camper City, Inc., 2002 WL 257691, at *6 (E.D. La. Feb. 22, 2002)
(“Thus, the Fifth Circuit has held that a plaintiff who proves a violation either of his
constitutional rights under Section 1981 or of his statutory rights under Title VII, but no
actual injury, is entitled to recover at least nominal damages.” (citing Patterson, 90 F.3d at
940, 941)). In this case, the jury found that the EPA retaliated against Benton, in violation
of Title VII, but its award of compensatory damages was made in a complete absence of
supporting evidence. The court therefore holds that Benton is entitled to recover nominal
damages in the amount of $1. See Patterson, 90 F.3d at 941.
*
*
*
For the foregoing reasons, the court grants in part and denies in part the EPA’s
renewed Rule 50(b) motion for judgment as a matter of law, concludes that Benton is entitled
to judgment in the sum of $1 for nominal damages, and denies the EPA’s Rule 59(a) motion
for a new trial.6 The court today enters judgment partially in favor of Benton and partially
6
The EPA requests that, “[i]n the event [the court] does not see fit to grant Defendant’s
motion for judgment as a matter of law, Defendant respectfully asks the Court for a ruling
granting a new trial under Rule 59(a) to remedy the patently unreliable verdict in this case.”
D. Br. 17. In light of the court’s decision and the reasoning on which it is based, it declines
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in favor of the EPA in accordance with this memorandum opinion and order.7
SO ORDERED.
June 24, 2014.
_________________________________
SIDNEY A. FITZWATER
CHIEF JUDGE
in its discretion to grant a new trial under Rule 59(a).
7
Benton may apply for an award of attorney’s fees, related nontaxable expenses, and
taxable costs under the procedures, and in accordance with the deadlines, prescribed by Rule
54(d). The court suggests no view regarding whether Benton is or is not entitled to recover
any particular form of relief other than the taxable costs that the court awards in today’s
judgment.
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