Gamboa v. Henderson ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-20965
_____________________
DIANA LYN GAMBOA; LINDA D. SLUSSER,
Plaintiffs-Appellees,
Cross-Appellants,
versus
WILLIAM J. HENDERSON, U.S. Postmaster General,
Defendant-Appellant,
Cross-Appellee.
_______________________________________________________
Appeals from the United States District Court for
the Southern District of Texas
(USDC No. H-94-CV-1521)
_______________________________________________________
November 29, 2000
Before REAVLEY, BENAVIDES and DENNIS, Circuit Judges.
REAVLEY, Circuit Judge:*
In this Title VII retaliation case, plaintiff Diana Gamboa won a judgment against
the United States Postal Service (USPS). The USPS challenges the award of damages.
*
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not be published and is not precedent except under the limited circumstances set forth in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.
We affirm the award of compensatory damages and reverse the award of front and back
pay. Our different treatment of the awards of compensatory damages, decided by a jury,
and front and back pay, decided by the district court, can largely be explained by our
different standards of review.
BACKGROUND
Gamboa and Linda Slusser were postal employees who brought this action against
the USPS, alleging sexual harassment and discrimination based on sex, age, disability,
and race, as well as retaliation for pursuing discrimination claims. After a partial
summary judgment, the case proceeded to trial only on Gamboa’s and Slusser’s Title VII
retaliation claims. The USPS does not appeal the judgment in favor of Slusser, and the
appeal is therefore limited to Gamboa.
Gamboa, who is deaf, was a clerk who had filed numerous equal employment
opportunity (EEO) complaints on behalf of herself and others. Among other claims,
Gamboa alleged that she was mistreated and ultimately terminated because of her
participation in the EEO process. She claimed that she was terminated on the pretext of
taking an unauthorized bathroom break.
DISCUSSION
A. Compensatory Damages
The USPS does not challenge the jury’s liability finding that it retaliated against
Gamboa in violation of Title VII, but does challenge the award of compensatory
damages. The challenge is based on evidence introduced regarding Gamboa’s
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fibromyalgia. “Compensatory damages” is a term of art under the civil rights laws, and
by statute consist of damages for “future pecuniary losses, emotional pain, suffering,
inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses.”
42 U.S.C. § 1981a(b)(3). The plaintiff has a right to demand a jury trial on the issue of
compensatory damages, see id. § 1981a(c), and the plaintiffs exercised that right in this
case. The jury was instructed that it could award compensatory damages for “emotional
pain, suffering, or mental anguish that each Plaintiff experienced as a consequence of
Defendant’s unlawful conduct.” The jury awarded Gamboa $800,000 in compensatory
damages. After the trial, the district court reduced this award to $300,000 based on a
statutory cap on such damages. See id. § 1981a(b)(3)(D).
1. Admission of Expert Testimony
As to compensatory damages, the USPS first argues that the district court should
not have admitted expert testimony on the cause of Gamboa’s fibromyalgia. Gamboa
claimed that her mistreatment by the USPS had led to numerous ailments, including
fibromyalgia, a condition we have described as “characterized by complaints of
generalized pain, poor sleep, an inability to concentrate, and chronic fatigue.” Black v.
Food Lion, Inc., 171 F.3d 308, 309 (5th Cir. 1999). Gamboa claimed that the effects of
her ailments included difficulty sleeping and bad dreams, easy bruising, fatigue, memory
loss, and other maladies. She testified that she was unable to work.
Dr. Deborah Meyer, a family practitioner, testified as an expert. She was
Gamboa’s treating physician. Meyer opined that “it was [Gamboa’s] activities at the post
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office that brought on the symptoms” of fibromyalgia. The apparent basis of this
conclusion was that Gamboa had suffered other stressful situations in her life such as
divorce “without getting any symptoms of the fibromyalgia.”
The USPS moved for new trial, arguing that Dr. Meyer’s testimony as to the cause
of Gamboa’s fibromyalgia should not have been admitted, because it did not meet the
requirements of Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), and related
authority, especially in light of the Black decision, cited above, which issued after the
jury’s verdict. The USPS did not object to Meyer’s testimony prior to or during trial, and
therefore concedes that appellate review is limited to plain error review. See Tompkins v.
Cyr, 202 F.3d 770, 779 (5th Cir. 2000); Rushing v. Kansas City S. Ry. Co., 185 F.3d
496, 506 (5th Cir. 1999), cert. denied, 120 S. Ct. 1171 (2000). To prevail on plain error
review, an appellant must show that (1) an error occurred, (2) the error is clear and
obvious under current law, (3) the error affected the appellant’s substantial rights, and (4)
the error would seriously affect the fairness, integrity, or public reputation of judicial
proceedings if left uncorrected. See id.We cannot say that the district court’s admission of the expert testimony rises to
the level of plain error. Even though, as we discuss further below, Meyer’s causation
testimony was highly tenuous, and assuming that the first three requirement for plain
error correction are met, we are not persuaded that the error would seriously affect the
fairness, integrity, or public reputation of judicial proceedings if left uncorrected.
Correcting the erroneous admission of the expert testimony in these circumstances would
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itself call into doubt the fairness, integrity, or public reputation of judicial proceedings.
Meyer was duly disclosed as an expert witness during pretrial discovery, and the USPS
had an opportunity to depose her if it chose. The procedure for challenging an expert
witness under Daubert through a pretrial hearing is now well established, see, e.g., United
States v. Katz, 178 F.3d 368, 370 (5th Cir. 1999), yet the USPS failed to take advantage
of this procedure. Furthermore, to accept its argument would in effect mean that the
district court should have sua sponte excluded Meyer’s testimony on causation. A
Daubert analysis of the admissibility of expert testimony is a complex undertaking,
involving the consideration of several factors, and does not lend itself to instant, sua
sponte rulings from the bench. For this reason pretrial procedures are employed for
consideration of Daubert objections.
In addition, Gamboa argues that the USPS deliberately chose not to object to
Meyer’s testimony. As we understand Gamboa’s argument, the USPS had no quarrel
with Meyer’s testimony that Gamboa suffered from fibromyalgia, and was hoping that the
jury would either conclude that (1) Gamboa’s claimed damages were exaggerated, or (2)
Gamboa does indeed suffer from fibromyalgia, but the USPS did not cause this condition.
As to the latter point, we note that the USPS does not argue on appeal that Gamboa failed
to prove that she suffers from fibromyalgia, but only challenges the proof of causation.
We further note that during closing argument, counsel for the USPS made an argument
that seems consistent with Gamboa’s suspicions:
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I didn’t hear any evidence connecting [Gamboa’s] present physical
condition to the Postal Service. Now, I’ll be honest with you. I’m 47 years
old. I’ve got aches and pains, too. In five years, when I’m 52, I’ll bet you
I’ll have more than I do now. I submit to you that the logical conclusion of
what we heard from the witness stand is Ms. Gamboa is attempting to lump
all her aches and pains that she’s accumulated over the course of years and
that she will accumulate as she gets older, as we all will, into a little basket
that she wants to lay at the foot of the Postal Service and she wants you
guys to give her a nice little nest egg.
We are not completely convinced that Gamboa is correct in arguing that the USPS made a
tactical decision not to object to Meyer’s testimony, but appearances are such that we are
satisfied that the USPS has not shown that a failure to correct the alleged error in
admitting Meyer’s causation testimony would seriously affect the fairness, integrity, or
public reputation of judicial proceedings.
2. Sufficiency of Evidence
As to the award of compensatory damages, the USPS alternatively argues that even
if the district court did not err in admitting the expert testimony, the evidence was
insufficient to establish that Gamboa’s fibromyalgia was caused by the retaliation she
suffered. As discussed above, the USPS does not challenge the proof that Gamboa in fact
suffered from fibromyalgia, but does question the proof that its conduct caused Gamboa
to suffer from this medical condition. The USPS also argues that even if the expert’s
testimony were admissible, she only testified that Gamboa’s fibromyalgia was caused by
“her activities at the post office.” When asked to describe the conditions at the post
office more specifically, she stated: “The conflicts with the supervisors, an altercation
with the co-worker and the termination, as far as I know.” The USPS argues that
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Gamboa did not prove that the fibromyalgia was caused by the unlawful retaliation, in
that even if the expert’s opinion is accepted as entirely valid, other legal activities at the
post office might have caused the fibromyalgia. The USPS argues that many of
Gamboa’s conflicts at the post office were not related to her retaliation claim. In
particular, the district court held prior to trial that the altercation with the co-worker,
known as the “wrist-grabbing incident,” was not actionable retaliation and granted
summary judgment on this claim. According to the USPS, “Gamboa herself attributed
her disability to the wrist-grabbing incident, which the court ruled was not a Title VII
violation.”
The USPS is arguing that the evidence is insufficient to sustain the jury’s finding
that the unlawful retaliatory conduct of the USPS caused Gamboa’s nonpecuniary
damages. The USPS, however, failed to move for judgment as a matter of law at the
close of all the evidence under Fed. R. Civ. P. 50(a), on grounds of insufficient evidence
of causation or any other ground. We have held that a party must move for judgment as a
matter of law at the close of all the evidence to preserve error, and that a failure to do so
results in a waiver of appellate review of the sufficiency of the evidence, see McAnn v.
Texas City Refining, Inc., 984 F.2d 667, 671 (5th Cir. 1993), or limits appellate review to
“whether the plaintiff has presented any evidence in support of his claim,” see Polanco v.
City of Austin, 78 F.3d 968, 974 (5th Cir. 1996). Under a “no evidence” standard of
review, the sufficiency argument must fail, since Gamboa offered some evidence of
causation.
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B. Back Pay and Front Pay
The USPS also challenges the award of front pay and back pay. Unlike an award
of compensatory damages, awards of front and back pay under Title VII are decided by
the district court. See Allison v. Citgo Petroleum Corp., 151 F.3d 402, 423 n.19 (5th Cir.
1998). As explained above, our review of the award of compensatory damages is either
nonexistent or extremely limited to a no evidence standard of review, because the USPS
failed to move for judgment as a matter of law at the close of all the evidence. However,
we review the district court’s decision to award front and back pay for abuse of
discretion. See Shirley v. Chrysler First, Inc., 970 F.2d 39, 44 (5th Cir. 1992) (“We
review an award of front pay for an abuse of discretion.”); Sellers v. Delgado Cmty.
Coll., 839 F.2d 1132, 1136 (5th Cir. 1988) (noting that “back pay is not an automatic
remedy, but is equitable in nature and may be invoked in the sound discretion of the
district court.”). “A district court abuses its discretion if it bases its decision on an
erroneous view of the law or on a clearly erroneous assessment of the evidence.” Esmark
Apparel, Inc. v. James, 10 F.3d 1156, 1163 (5th Cir. 1994).
The district court awarded back pay of about $265,000 and front pay of about
$323,000. In so doing, the court stated that it found the conclusion of Gamboa and
Meyer that the fibromyalgia was caused by the USPS’s retaliatory acts to be “extremely
speculative and troubling.” The court, however, concluded that back pay was appropriate
because the USPS “failed to carry its burden.” In context, the court was referring to the
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USPS’s failure to prove that Gamboa had not mitigated her damages, and its failure to
offer its own expert to rebut Dr. Meyer.
We conclude that the district court erred in awarding front and back pay. First, as
a legal matter, we do not agree with the district court that the burden was on the USPS to
prove that Gamboa was not entitled to back pay. Front and back pay compensate a
plaintiff for wages and other benefits she would have earned if she had continued to
work. See Shirley, 970 F.2d at 44 (“Front pay is awarded to compensate the plaintiff for
lost future wages and benefits.”); Franks v. Bowman Trans. Co., 495 F.2d 398, 421 (5th
Cir. 1974) (“Where the discriminatee has suffered economic injury in the form of lost
wages, back pay is normally appropriate relief.”). For this reason, such damages strike us
as inappropriate if the plaintiff claims that she is unable to work because she is disabled.
See Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134, 145 (2d Cir. 1993) (denying award of
back pay for period during which plaintiff was disabled). Gamboa’s position is that she
was unable to work after leaving her employment with the USPS. She and Dr. Meyer
testified that she is totally and permanently disabled.
Gamboa argues, however, that an exception to this rule holds that a plaintiff may
recover back and front pay damages if she becomes disabled as a result of the defendant’s
wrongful conduct. See Gotthardt v. Nat’l R.R. Passenger Corp., 191 F.3d 1148, 1155-56
(9th Cir. 1999) (holding that award of front pay was appropriate where plaintiff proved
that defendant’s wrongful conduct caused her disability). Assuming that Gamboa is
correct, we nevertheless believe that in such circumstances the burden should be on the
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plaintiff to prove that the defendant caused her disability. Placing the burden on the
plaintiff is consistent with the general principle that a plaintiff in a civil case bears the
burden of proving her damages, and our recognition in the Title VII context that “only
those individuals who have suffered a loss of pay because of the illegal discrimination are
entitled to [back pay] compensation,” Shipes v. Trinity Indus., 987 F.2d 311, 318 (5th
Cir. 1993), and that back pay is available “to make persons whole for injuries suffered on
account of unlawful employment discrimination,” Floca v. Homcare Health Servs, Inc.,
845 F.2d 108, 111 (5th Cir. 1988). While we have recognized that the burden of proving
a failure to mitigate damages by finding substantially equivalent work rests on the
defendant, see Sellers v. Delgado Coll., 902 F.2d 1189, 1193 (5th Cir. 1990), we have
never held that when a plaintiff seeks front and back pay on the theory that she is
disabled as a result of the defendant’s conduct, the plaintiff is not obliged to prove up this
theory by establishing that the defendant’s violation of Title VII caused her disability.
The better rule, we think, is to place the burden on the plaintiff to prove such a claim.
The district court therefore legally erred in placing the burden on the USPS to prove that
Gamboa was not entitled to back pay.
We are further of the view that the district court clearly erred, as a factual matter,
in finding that Gamboa was entitled to front and back pay. These awards hinged on
Gamboa’s theory that, even though she was disabled, she was entitled to front and back
pay because the USPS had caused her disability through its unlawful conduct, by causing
her fibromyalgia.
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“A finding is ‘clearly erroneous’ when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364,
395 (1948); see also Henderson v. Belknap (In re Henderson), 18 F.3d 1305, 1307 (5th
Cir. 1994). With respect to the district court’s award of front and back pay, we are left
with a definite and firm conviction that Gamboa did not carry her burden of showing that
the USPS caused her fibromyalgia.
Gamboa’s proof of causation consisted of the testimony of Dr. Meyer. Meyer is
not a specialist in chronic pain-related illnesses such fibromyalgia, but had treated about
two dozen fibromyalgia patients. Meyer testified that she diagnosed Gamboa as suffering
from fibromyalgia based on Gamboa’s verbal description of her symptoms. Meyer
explained that there is no objective diagnostic test for the disease: “You can’t test for
fibromyalgia. There is no test that will say that this patient has fibromyalgia because all
of the tests come back negative.”
Dr. Meyer admitted that medical science does not know the pathology of
fibromyalgia, and the only text she relied on that she could identify, a “Primer on
Rheumatic Disease” published by the Arthritis Foundation, states that the etiology of the
disease is unknown. Meyer nevertheless opined that Gamboa’s “activities at the post
office” had caused her fibromyalgia. She based this conclusion on the fact that Gamboa
had been able to handle other stressful situations in her past such as her divorce without
manifesting symptoms of fibromyalgia. Meyer did little more than assume that since the
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onset of the disease followed the defendant’s conduct, the defendant’s conduct caused the
disease. Given Meyer’s lack of expertise, the vagueness of her testimony, and the lack of
a consensus in the medical community regarding the cause of fibromyalgia, we conclude
that Gamboa did not establish her entitlement to front and back pay.
Gamboa argues that her proof was not based solely on the expert’s testimony, but
also on her own testimony and that of her husband. While Gamboa and her husband
testified that Gamboa had fibromyalgia or symptoms of that disease, it was Meyer, the
expert, who offered medical causation testimony that the conduct of the USPS caused the
disease. If, for the reasons discussed above, Dr. Meyer was unable to establish medical
causation, the lay testimony of Gamboa and her husband cannot in our view remedy this
failure of proof.
Summarizing, we affirm the jury verdict because we cannot say that the plaintiff
failed to present “any evidence” in support of her claim of compensatory damages, but we
reverse the front and back pay awards because the district court committed an error of
law and a clearly erroneous assessment of the evidence. Because the district court
misplaced the burden of proof and conceded that its finding of causation was extremely
speculative and troubling, and although there is some evidence to support a finding that
the USPS’s unlawful retaliation caused Gamboa’s disability, on the entire record we are
left with a definite and firm conviction that the district court committed a mistake in
awarding front and back pay.
B. Cross-Appeal
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By way of what she characterizes as a protective cross-appeal, Gamboa argues that
the district court erred in granting summary judgment on her “retaliatory harassment”
claims. Gamboa does not fully explain the nature of these claims, but apparently urged
below that a pattern of harassing behavior in retaliation for making a Title VII complaint
can amount to a constructive discharge or other adverse employment action actionable
under Title VII, a theory recognized by some courts. We see no need to address this
argument. The USPS has not appealed the jury’s liability finding of retaliation. It has
only appealed the damages awarded for retaliation. Gamboa does not demonstrate that
her damages would be different under a retaliatory harassment theory. More specifically,
Gamboa does not suggest how her theory of retaliatory harassment should alter our
conclusions that her award of compensatory damages should stand, but her award of front
and back pay should not.
CONCLUSION
For the foregoing reasons, the judgment is modified to exclude the awards of front
pay and back pay to Gamboa and interest thereon.
Judgment Affirmed as Modified.
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