Zamora et al v. City Of Houston et al

Filing 441

MEMORANDUM AND ORDER REMITTING FUTURE COMPENSATORY DAMAGES(Signed by Judge Nancy F Atlas) Parties notified.(sashabranner, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CHRISTOPHER M. ZAMORA,
Plaintiff,
v.
CITY OF HOUSTON
Defendant.

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November 22, 2016
David J. Bradley, Clerk

CIVIL ACTION NO. H-07-4510

MEMORANDUM AND ORDER
REMITTING FUTURE COMPENSATORY DAMAGES
On September 6, 2013, the jury in this case reached a verdict that, inter alia,
awarded Plaintiff Christopher Zamora $127,000 in future compensatory damages and
$23,000 in past compensatory damages. See Verdict [Doc. # 364]. On January 30,
2014, the Court partially granted the City’s motion for judgment as a matter of law
and vacated the $127,000 future damages award. Memorandum and Order [Doc.
# 386] (“JMOL”), at 23-28. On August 19, 2015, the Fifth Circuit reversed this
ruling, holding that Zamora had presented sufficient evidence of some future
reputational harm. The appellate court remanded the case and instructed this Court
to “consider” remittitur “to determine the amount of damages to which Zamora is
entitled for reputational harm only.” Fifth Circuit Opinion [Doc. # 419], at 16.
Defendant City of Houston has filed a Motion for Remittitur [Doc. # 433]
(“Motion”), and the parties have briefed the issues thoroughly. See Remittitur

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Response [Doc. # 434]; Remittitur Reply [Doc. # 435]; Remittitur Surreply [Doc.
# 436]. The Motion is ripe for decision. The Court again has carefully considered
the 2013 trial record, the parties’ briefing, the applicable law, and all other pertinent
matters of record. The Court, despite concern that proof of non-pecuniary damages
for future reputational harm as of the date of the jury verdict (September 6, 2013) is
speculative and unfounded, finds that $63,500, one-half of the jury’s future
compensatory damages award, will fully compensate Plaintiff for his future
reputational harm.
I.

LEGAL STANDARD
“A district court on remand must implement both the letter and the spirit of the

appellate court’s mandate and may not disregard the explicit directives of that court.”
Perez v. Stephens, 784 F.3d 276, 280 (5th Cir.), cert. denied, 136 S. Ct. 502 (2015)
(internal citations and quotation marks omitted). See Gen. Universal Sys., Inc. v. HAL,
Inc., 500 F.3d 444, 453 (5th Cir. 2007); Henderson v. Stalder, 407 F.3d 351, 354 (5th
Cir. 2005); Daly v. Sprague, 742 F.2d 896, 900 (5th Cir. 1984).
Recovery of more than nominal damages for non-pecuniary harm, such as
emotional distress, requires specific evidence of the nature, extent and severity of the
harm. Miller v. Raytheon Co., 716 F.3d 138, 147 (5th Cir. 2013); Hitt v. Connell, 301
F.3d 240, 250 (5th Cir. 2002); Flowers v. S. Regional Physician Servs. Inc., 247 F.3d
229, 238-39 (5th Cir. 2001). “Compensatory damages for emotional harm, including
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mental anguish, will not be presumed simply because the complaining party is a
victim of discrimination.” Miller, 716 F.3d at 147. An award of damages for
reputational harm requires specific evidence that the reputational harm resulted from
the action for which the defendant is liable. College Network, Inc. v. Moore Educ.
Publishers, Inc., 378 F. App’x 403, at *6-*7 (5th Cir. May 12, 2010) (defamation
claim). Of course, when damages are awarded for future non-pecuniary harm, the
showing of damage must be linked to harm the plaintiff will suffer in the future. See
Thomas v. Tex. Dep’t of Crim. Justice, 297 F.3d 361, 371 (5th Cir. 2002) (remitting
damages for future emotional distress in failure-to-promote case because the
plaintiff’s emotional difficulties had substantially lessened and because plaintiff “did
not provide evidence tightly linking the denial of a promotion and future emotional
harm”); Lewallen v. City of Beaumont, 394 F. App’x 38, 46 (5th Cir. 2010) (vacating
future compensatory damages in failure-to-promote case because plaintiff did not
adduce evidence sufficient to demonstrate the likelihood of “mental anguish in the
future as a result of the constitutional violation that she experienced in the past”).
II.

DISCUSSION
The Court incorporates by reference the extensive factual recitations about the

trial record set forth in its JMOL ruling [Doc. # 386] and does not repeat those details
here.
Plaintiff argued at trial that the City was liable for retaliation that occurred in
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2008, when he was denied a transfer to the Crime Reduction Unit (“CRU”), and in
2010, when he was issued a ten-day suspension that subsequently was overturned.
The jury found no liability based on the 2008 events. Therefore, no damages are
available to Plaintiff for the 2008 events. The jury found for Plaintiff regarding
retaliation relating to the 2010 suspension. All recoverable future compensatory
damages must flow from that suspension and related events. The Court proceeds, as
it must in light of the explicit remand instructions, to address the amount of damages
recoverable for future reputational harm resulting from the 2010 suspension.
The City’s Motion for Remittitur urges that, because Plaintiff has not presented
sufficiently specific evidence of future reputational harm flowing from the suspension,
he should receive only nominal damages. The City’s briefing relies on evidence and
legal propositions cited in this Court’s prior opinion. See JMOL, at 23-28.
In response, Plaintiff argues that “little or nothing” of the jury’s $127,000 future
damage award should be remitted. At trial, Plaintiff sought future damages based on
two categories of harm: emotional distress and reputational harm. On appeal in the
Fifth Circuit, Plaintiff abandoned his claim for damages relating to future emotional
distress. Fifth Circuit Opinion, at 14. Plaintiff now contends that because there was
“minimal” evidence of future emotional distress at trial, and because the verdict form
did not require the jury to specify an amount attributable specifically to reputational
harm, this Court should hold that all or most of the jury’s award pertained to future
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reputational harm.1
In fact, Plaintiff presented and the jury was entitled to consider evidence of nonpecuniary damage attributable to mental anguish. For instance, Plaintiff testified on
re-cross examination that he continued to have occasional migraine headaches for
which he took medication.2
As for Plaintiff’s evidence of reputational harm, Plaintiff first points to the

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The form of Verdict submitted to the jury, which adopted Plaintiff’s requested
categories, did not specifically list reputational harm as a possible basis for damages.
The jurors were asked:
What sum of money if any paid now in cash, do you find would fairly
and reasonably compensate Plaintiff Chris Zamora for his actual
damages, if any, suffered as a result of Defendant City of Houston’s
actions that you have found would not have occurred but for
retaliation?
Emotional pain, suffering, inconvenience, mental anguish, loss
of enjoyment of life, and other non-monetary losses:
(A)
(B)

In the past:
Answer in dollars and cents: $___________
In the future:
Answer in dollars and cents: $___________

Verdict [Doc. # 364], at 2. The Court instructed jury the orally and in writing that:
“If Plaintiff Chris Zamora wins, he is entitled to compensatory damages for any
emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life,
and other non-monetary losses you find he suffered because of wrongful conduct,
such as injury to his professional standing or reputation.” Court’s Instructions to the
Jury [Doc. # 359], at 9-10 (emphasis added).
2

See Trial Transcript [Doc. # 404], at 46 (Plaintiff testified that he started taking
migraine medication right after his 2008 transfer out of CRU and that he
“occasionally” had migraines at the time of trial).

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testimony from Executive Assistant Chief (“EAC”) Michael Dirden and EAC Kirk
Munden, each of whom stated he continued to believe that Plaintiff was untruthful,
despite the fact that the untruthfulness finding against him had been overturned by an
independent hearing examiner. Response, at 4-5 (citing trial testimony). The JMOL
carefully examined this evidence. See JMOL, at 24-28; see id. at 26 n.30 (discussing
the opinions of EACs Dirden and Munden). EAC Dirden testified that, because the
examiner had overturned the untruthfulness finding, he was required to follow the
examiner’s ruling. Trial Testimony [Doc. # 407], at 270-71. Zamora has not pointed
to any specific evidence of post-suspension consequences flowing from the EACs’
private opinions regarding the examiner’s ruling or their personal views of Plaintiff’s
truthfulness regarding the incidents in issue giving rise to the untruthfulness finding
(or otherwise).3
Zamora argued at trial, however, that he deserved a transfer into the Narcotics

3

Dirden and Munden testified that the overturned suspension was not publicly
available and could not be used against Zamora professionally in promotions or
otherwise in the Houston Police Department (“HPD”). The evidence is clear that
neither had given Zamora a negative job reference. See City’s Reply, at 7-8 (citing
trial testimony). Furthermore, the trial evidence showed without contradiction that
Plaintiff had a good relationship with his then-current supervisors, consistently
received positive reviews from his supervisors, was selected for prestigious training
opportunities in the Narcotics Unit and elsewhere, received multiple commendations,
and was promoted to sergeant (with an increase in salary and more responsibility)
during the trial. See JMOL, at 24-25. There was no trial evidence of any future
consequences flowing from the EACs’ personal opinions regarding Plaintiff’s
truthfulness or the examiner’s overturning the untruthfulness ruling.

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Unit but was not selected for the transfer.4 The Fifth Circuit opined that the jury “was
entitled to make the natural and common-sense inference that an employee suffering
from a blackened reputation in the eyes of high-ranking executives of an organization
is limited in his potential to rise within that organization.” Fifth Circuit Opinion, at
14.
There was also evidence before the jury that Plaintiff received various
commendations and promotion after the suspension. In this regard, the Circuit stated,
“That he is currently doing well within his new unit . . . does not mean that his future
is not limited by the harm to his reputation.” Id. at 15.5

4

See JMOL at 25 n. 28 (discussing Plaintiff’s complaint that he did not receive his
requested transfer into Narcotics, but noting that Plaintiff was one of only twelve
officers placed on the “most ready” list for a Narcotics transfer, that he was not
removed from the list during the untruthfulness citation process, and that Plaintiff had
no evidence that anyone in the Narcotics Unit knew about the citation); id. at 26-27
n.31 (“Although Plaintiff testified to his belief that he will in the future be denied
transfers to the Narcotics Division or other proactive units because his past citations
for untruthfulness will make him a less desirable witness in court, the record contains
no evidence demonstrating that this belief is justified in light of Plaintiff’s current
rank of sergeant. The evidence at trial revealed that sergeants arrive at patrol officers’
crime scenes after the fact, and review patrol officers’ and others’ work. There was
no evidence at trial supporting Plaintiff’s contention that sergeants are likely to testify
in court.”).

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As set forth in the JMOL, at 27-28, previous opinions from the Fifth Circuit have
remitted or vacated awards of non-pecuniary future damages when the plaintiff did
not make a sufficient showing of harm in the future. See Thomas, 297 F.3d at 371
(remitting award of future damages in failure-to-promote case; record contained
evidence that plaintiff’s employment situation had improved); Lewallen, 394 F. App’x
at 46 (vacating award of future emotional distress in failure-to-promote case for
insufficient evidence and noting that plaintiff had been promoted before trial)

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Second, Zamora cites to generic expert testimony from Melvin Tucker
regarding the value and importance placed on truthfulness by law enforcement
agencies such as the HPD. Tucker testified that an untruthfulness charge against an
officer is a “‘bell . . . that can’t be un-rung’” and is detrimental to an officer’s career.
Trial Testimony [Doc. # 404], at 94-95.

See id. at 96 (an officer found to be

untruthful was unlikely to ever regain his professional reputation but that, if one
could, it would take “‘a long, long, long time”). The JMOL ruling noted that Plaintiff
had been promoted to sergeant upon his first application, as soon as he was eligible
for the promotion. JMOL, at 25.6 However, the Court of Appeals concluded: “The
jury was entitled to consider what Tucker told them about police department culture
and draw their own conclusions about the extent that Zamora’s ‘baggage’ would
continue to injure him in the future.” Fifth Circuit Opinion, at 15. The appellate court
therefore held that Zamora’s trial evidence was legally sufficient to support
compensatory damages for future reputational harm.
The City now requests an award of nominal damages, arguing the paucity of
evidence supporting an award of future damages. See Miller, 716 F.3d at 147. The
Court of Appeals did not remand the case for entry of a nominal damages award, but

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Moreover, as noted in the JMOL ruling, Defendant expunged all references in
Plaintiff’s personnel files to the untruthfulness citations and discipline, rendering
future reputational harm to Plaintiff highly unlikely. JMOL, at 26.

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rather for consideration of remittitur.7 This Court must comply with the superior
court’s directives. See Perez, 784 F.3d at 280; Henderson, 407 F.3d at 354 (“Where
. . . further proceedings in the district court are specified in the mandate of the Court
of Appeals, the district court is limited to holding such as are directed”) (internal
citation and quotation marks omitted). Accordingly, this Court turns to the issue of
remittitur and considers what amount of damages will compensate Plaintiff for his
future reputational harm.
The Court maintains its view that the trial evidence is extremely general and
arguably too speculative to support future damages tied to the City’s 2010
misconduct, which was administratively overturned within six months. But, given the
jury’s right to make credibility assessments concerning Plaintiff’s superiors’ views,
and to credit the generic testimony of Plaintiff’s expert Tucker, the Court concludes
that Plaintiff established at trial by a preponderance of the evidence that he could
suffer some future compensable reputational harm flowing specifically from the 2010

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See Fifth Circuit Opinion, at 16 (“[A]lthough we conclude that Zamora presented
sufficient evidence to support an award of some amount of damages for future
reputational harm, the jury’s award did not specify how much of the award was
attributable to emotional distress and how much was attributable to reputational harm.
On remand, the district court should consider remittitur to determine the amount of
damages to which Zamora is entitled for reputational harm only.”)

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suspension.8
Recognizing that precision is impossible, the Court finds that one-half of the
jury’s $127,000 future non-monetary damages award ($63,500) was attributable to
future emotional harm, namely, his anguish and continuing occasional migraine
headaches for which Plaintiff was still taking medication at the time of trial. The
Court thus estimates that the remaining portion of the jury’s award, $63,500, was
attributable to Plaintiff’s future reputational injury.
III.

CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that the City’s Motion for Remittitur [Doc. # 433] is GRANTED

in part. Plaintiff is awarded $63,500 in future compensatory damages.

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The Court does not consider the reputational effects of the 2008 transfer. Plaintiff
testified at trial that most if not all of his future reputational harm was linked to his
2008 transfer out of the Crime Reduction Unit (“CRU”), which transfer the jury
unanimously found was not retaliatory. See Trial Testimony [Doc. # 403], at 55-56
(Plaintiff feared that 2008 events would label him as a problem employee and prevent
him from competing for future positions), 62-63 (fellow officers in 2008 unit no
longer wanted to associate themselves with Plaintiff), 67 (2008 events cased negative
feelings regarding his reputation within his unit); 100-01 (2008 transfer affected
Plaintiff’s ability to network and access equipment and “marred and ruined” his
professional reputation); Trial Testimony [Doc. # 404], at 31 (2008 transfer caused
damaged to his reputation and was permanently on his file), 34-35 (after 2008 transfer
Plaintiff was depressed, his demeanor and attitude changed, and he had severe
migraine headaches).

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SIGNED at Houston, Texas, this 22nd day of November, 2016.

NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE

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