NANCY F. ATLAS, SENIOR UNITED STATES DISTRICT JUDGE.
Before the Court in this False Claims Act ("FCA") retaliation lawsuit is Defendant Houston Housing Authority's ("HHA") Brief in Support of Renewed Motion for Judgment as a Matter of Law, or Alternatively, Motion for New Trial or Remittitur ("HHA's Motion") [Doc. # 257].
Defendant HHA, one of the nation's largest public housing authorities, hired Plaintiff Karen Miniex in March 2012 to serve as its general counsel. Miniex served in that role until HHA's President and CEO, Tory Gunsolley, terminated her employment in December 2016 following a dispute over the proper handling of a fraud investigation. After her termination, Miniex sued HHA, alleging she was retaliated against in violation of the FCA for reporting her concerns about systemic fraud in HHA's housing voucher program. After a six-day trial,
The majority of HHA's arguments lack merit. The Court concludes that the jury was properly instructed and reasonably found for Miniex on all essential elements of her FCA retaliation claim. Moreover, the back pay award is supported by trial evidence and is not excessive. The Court, however, concludes that Miniex's front pay and noneconomic damage awards are excessive. The Court therefore
The parties' proof at trial established the following facts. HHA is a governmental entity that provides affordable housing to low-income individuals in the Houston area.
In March 2012, Tory Gunsolley, HHA's President and CEO, hired Karen Miniex to serve as HHA's general counsel.
As HHA's general counsel, Miniex oversaw investigations into employee and client
In the first half of 2016, Skalka discovered that two HHA employees within the HCVP program, Shawntea Radford and Carmen Newland, were involved in separate fraudulent schemes to sell housing vouchers.
Skalka began his investigation into Radford in late January 2016.
On February 11, 2016, Miniex submitted to Gunsolley a report by Skalka concerning Radford's fraud in the HCVP program.
Skalka began his investigation into Newland in May 2016.
On June 14, 2016, Miniex submitted to Gunsolley a report by Skalka on Newland's fraud in connection with the VASH program, along with several exhibits documenting Newland's fraudulent scheme.
Gunsolley responded to Miniex the same day he received Skalka's report, the exhibits, and Miniex's cover letter.
On June 20, 2016, Gunsolley and Miniex met to discuss Skalka's amended report and her recommendations to terminate HCVP management and hire an outside investigator.
On June 21, 2016, before the Board convened, Gunsolley called Miniex to his office.
At the Board meeting, Gunsolley presented Newland's fraud as a personnel matter.
On June 22, 2016, Miniex sent an email to Gunsolley memorializing their June 21, 2016, meeting and stating that she found several of his statements threatening.
On June 23, 2016, Miniex contacted Nicole Taylor, counsel for the Board, and stated she believed that Gunsolley had not been forthright with the Board in reporting the Newland matter.
On or before June 30, 2016, Gunsolley learned that Miniex had contacted members of HHA's Board about her concerns regarding the Newland fraud investigation.
On June 30, 2016, Gunsolley responded to Miniex's June 22, 2016, email.
On September 2, 2016, Reaves and Bryce met with Gunsolley to discuss concerns they had with Miniex. Both stated Miniex had become completely disengaged from her job; was telling attorneys not to do work requested of them by others in HHA; was not responding to emails; had repeatedly cancelled staff meetings; was refusing to meet with Reaves and Bryce; was intentionally slowing down work in the legal department; and was habitually absent and tardy.
On September 8, 2016, without interviewing anyone else in the legal department, Gunsolley met with Miniex
On September 13, 2016, Miniex filed a grievance against Gunsolley with the Board, asserting Gunsolley's Verbal Written Warning was retaliation for her whistleblower activity.
On September 16, 2016, Katie Anderson, the attorney HHA hired to perform the third party investigation of the HCVP program, completed her investigation.
On November 16, 2016, HHA retained an independent investigator who reviewed Miniex's grievance.
On November 29, 2016, Gunsolley met with Miniex and suspended her with pay and without email access.
On December 8, 2016, HHA's Board sent Miniex a letter explaining that the independent investigator determined her grievance was unfounded and that Gunsolley's September 8, 2016, Verbal Written Warning was appropriate.
On December 9, 2016, Gunsolley sent Miniex a termination letter, citing her unscheduled absences, tardies, poor productivity, disengagement, and failure to acknowledge these issues as legitimate as the basis for her termination.
Miniex filed this lawsuit on February 27,
After a six-day jury trial on the FCA retaliation claim, the jury found for Miniex.
To succeed on her FCA retaliation claim, Miniex must demonstrate (1) she engaged in protected activity under the FCA, (2) HHA knew she engaged in protected activity, and (3) she suffered an adverse employment action because she engaged in protected activity. See 31 U.S.C. § 3730(h)(1); U.S. ex rel. Bias v. Tangiapahoa Par. Sch. Bd., 816 F.3d 315, 323 (5th Cir. 2016). HHA asserts judgment as a matter of law ("JMOL") is warranted for two reasons. First, HHA argues the contents of Miniex's reports are not protected by the FCA. Second, HHA contends that because reporting fraud was one of Miniex's job duties as HHA's general counsel, Miniex cannot, as a matter of law, demonstrate either that her reports were protected activity or that HHA had notice of her allegedly protected activity.
Both grounds are unpersuasive. As explained hereafter, HHA's first argument is forfeited because HHA failed to raise it in its original motion for JMOL. In any event, on the merits, the Court concludes the contents of Miniex's reports are protected under the FCA. HHA's second argument fails because the jury could, and did, reasonably find that Miniex's reporting went beyond the scope of her job duties and HHA had notice of her reports. Therefore, the Court
Under Federal Rule of Civil Procedure 50, a party may, before the case has been submitted to the jury, move for judgment as a matter of law on an issue. FED. R. CIV. P. 50(a)(2). "The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment." Id. The Court may grant JMOL on an issue if it "finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that
"A litigant cannot obtain judgment as a matter of law unless the facts and inferences point so strongly and over-whelmingly in the movant's favor that reasonable jurors could not reach a contrary conclusion." OneBeacon Ins. Co. v. T. Wade Welch & Assocs., 841 F.3d 669, 675 (5th Cir. 2016) (internal quotation marks omitted). The Court must draw "all reasonable inferences in the light most favorable to the verdict and cannot substitute other inferences that we might regard as more reasonable." Id. "[I]t is the function of the jury as the traditional finder of the facts, and not for the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses." Roman v. W. Mfg., Inc., 691 F.3d 686, 692 (5th Cir. 2012).
"Any argument made in a renewed motion for judgment as a matter of law under Rule 50(b) must have been previously made in a motion for judgment as a matter of law under Rule 50(a)." OneBeacon Ins. Co., 841 F.3d at 676. "If a party fails to move for judgment as a matter of law under Federal Rule of Civil Procedure 50(a) on an issue at the conclusion of all of the evidence, that party waives both its right to file a renewed post-verdict Rule 50(b) motion and also its right to challenge the sufficiency of the evidence on that issue on appeal." Flowers v. S. Reg'l Physician Servs. Inc., 247 F.3d 229, 238 (5th Cir. 2001). See also In re Isbell Records, Inc., 774 F.3d 859, 867 (5th Cir. 2014) ("Since a Rule 50(b) motion `is technically only a renewal of the [Rule 50(a) motion for judgment as a matter of law] ... it cannot assert a ground that was not included in the [original] motion.'" (alterations in original) (quoting Mozingo v. Correct Mfg. Corp., 752 F.2d 168, 172 (5th Cir. 1985))); Arsement v. Spinnaker Expl. Co., LLC, 400 F.3d 238, 247 (5th Cir. 2005) ("If a party fails to raise an issue in its Rule 50(a)(1) motions at trial, it may not do so in its post-trial Rule 50(b) motion.").
Under the FCA's anti-retaliation provision, an employer is prohibited from retaliating against an employee for any "lawful acts done ... in furtherance of an [FCA] action ... or other efforts to stop... violations of [the FCA]." 31 U.S.C. § 3730(h)(1). The parties agree that the FCA's scope of protection against retaliation is governed by the "distinct possibility" standard.
Miniex asserts that the contents of her reports to the Board, HUD-OIG, and the FBI are protected under the FCA because she reported that HCVP lacked effective "internal controls"—the omission of which could mask ongoing financial fraud and could lead to future fraud. She also focuses on her recommendation that HHA retain a third party investigator to determine whether vouchers were being issued fraudulently on a systemic basis.
HHA responds that Miniex's reporting is not protected as a matter of law. First, HHA argues Miniex's reports amounted only to "personnel matters," specifically, a recommendation to terminate Patricia Doggett, Robin Walls, Mark Thiele for negligent supervision. HHA also argues that, even if Miniex's reports addressed a lack of internal financial controls, a nexus between Miniex's reports and a viable, non-speculative FCA claim is required. Miniex's reports, HHA argues, lack a requisite nexus to a viable FCA claim because her reports ultimately involved unsubstantiated allegations of fraud.
The Court holds HHA's arguments are forfeited. At the close of evidence, HHA moved for JMOL, raising three grounds, none of which were the argument now asserted.
Despite forfeiture, the Court addresses HHA's arguments for JMOL. These contentions lack merit. The jury could reasonably have concluded that Miniex's reports had the requisite nexus to a viable FCA claim and were not merely about personnel matters.
Miniex's report recommended HHA terminate HCVP's management because,
The jury reasonably could have concluded that Miniex, when she reported, had a good faith and objectively reasonable belief that staff at HHA could be continuing to commit fraud by misdirecting federal funds.
The jury also could have reasonably inferred that the reports exceeded mere "personnel" recommendations based on the report's recipients. By reporting to HUD-OIG and the FBI—entities that investigate possible fraud on the federal government, not employer's personnel decisions—Miniex's conduct strongly suggests that she was "motivated by a concern regarding fraud against the government" and not mere personnel matters. See Thomas, 517 F. App'x at 262.
HHA cites U.S. ex rel. Patton v. Shaw Services, L.L.C., for the proposition that allegations of general misconduct are not protected. See 418 F. App'x 366, 372 (5th Cir. 2011) (per curiam). In Patton, the Fifth Circuit found that the substance of the employee's complaints concerned "allegedly unsafe or improper construction methods, and not that [the employee] was concerned that [the employer] was defrauding the government." See id. Unlike Patton, where the employee's internal complaints lacked "any suggestion that [he] was attempting to expose illegality or fraud," see id., Miniex's reporting expressly states that, based on the "seriousness" of the discovered "fraudulent activities," a third party should investigate to determine "whether vouchers are being issued fraudulently on a systemic basis" and "to determine how widespread the problem may
The parties do not contest, for present purposes, that Miniex had the burden to demonstrate at least one of her protected activities was outside the scope of her job duties in order to demonstrate HHA had notice of her protected activities.
The Court is unpersuaded. The jury reasonably found that Miniex's reporting the HCVP matters was outside the scope of her job duties. Miniex claims her reporting to the Board, to HUD-OIG, and to the FBI each were protected activities. Based on the evidence and testimony at trial, the jury reasonably could have concluded that Miniex's direct reports to the Board and FBI were beyond the scope of her job duties.
First, the jury reasonably could have found that Miniex's reporting Newland's fraud directly to Board members, over Gunsolley's explicit instructions not to report these matters to the Board, was out-side the scope of her job duties. Neither party has offered the Court a legal standard to determine what actions fall outside an employee's job duties for purposes of an FCA retaliation claim. Nor has the Fifth Circuit provided guidance on the issue. In Robertson, the seminal Fifth Circuit case requiring the plaintiff to show his protected activity was beyond his job duties to demonstrate his employer had knowledge of his protected activity, the plaintiff admitted his fraud investigation was within "the normal course of his duties." See 32 F.3d at 952.
Other circuits with a similar requirement hold that an employee's failure to follow a supervisor's instructions or a
In this case, the jury could have reasonably concluded that, by reporting the Newland matter directly to Board members, Miniex exceeded the scope of her job duties. Gunsolley and Miniex's testimony at trial could reasonably support the conclusion that the normal procedure was for Miniex to bring her findings to Gunsolley and for Gunsolley, in turn, to report to the Board.
Second, the jury could also reasonably find that Miniex's meeting with the FBI, where she reported on Newland's (and, possibly, Radford's) fraud and conveyed information regarding the fraud investigation and Gunsolley's responses to her recommendations, was outside the scope of her job duties. Miniex job duties included periodic meetings with HUD-OIG and she informed Gunsolley of these contacts.
HHA contends that HHA had no notice of Miniex's meetings with HUD-OIG and the FBI because the meetings remained confidential. HHA's assertion is inconsistent with the evidence at trial. Skalka testified that he told Bryce and Reaves, who in turn told Gunsolley, about the meeting at which Miniex disclosed the Newland matter to the FBI.
HHA further contends that because HUD-OIG and the FBI reached out to Miniex to set up the meetings, Miniex's fraud reporting to HUD-OIG and the FBI is not protected activity as a matter of law. This argument is both forfeited and unpersuasive. HHA did not raise this argument in its original motion for JMOL. See One-Beacon Ins. Co., 841 F.3d at 676; Flowers, 247 F.3d at 238. Additionally, HHA cites no authority to support the conclusion that reporting fraud at the request of an external entity prevents the action from being protected activity. By reporting fraud, regardless of the fact that HUD-OIG requested the information, Miniex still engaged in an "effort[] to stop" an FCA violation. See 31 U.S.C. § 3730(h)(1).
Because HHA's arguments in support of its renewed motion for JMOL are forfeited, meritless, or both, the Court
Under Federal Rule of Civil Procedure 59, a district court may "on motion, grant a new trial on all or some of the issues ... for any reason for which a new trial has heretofore been granted in any action at law in federal court." FED. R. CIV. P. 59(a)(1). HHA argues a new trial is appropriate for two reasons. First, HHA contends that the Court erroneously instructed the jury on the essential elements of an FCA retaliation claim. Second, HHA contends the jury's verdict that HHA retaliated against Miniex was against the great weight of the evidence. These arguments are forfeited, meritless, or both, and HHA's request for a new trial is
"[T]he trial court has great latitude in the framing and structure of jury instructions." Eastman Chem. Co. v. Plastipure, Inc., 775 F.3d 230, 240 (5th Cir. 2014). "There are three requirements to successfully challenge jury instructions." Taita Chem. Co., Ltd. v. Westlake Styrene, LP, 351 F.3d 663, 667 (5th Cir. 2003).
HHA contends the Jury Instructions and Verdict Form contained several deficiencies. First, HHA contends that the Jury Instructions erroneously omitted an instruction that Miniex cannot prevail unless she demonstrates she acted outside the scope of her job duties. Second, HHA contends that the Court erroneously omitted the essential element of knowledge by HHA of Miniex's protected activity from the Verdict Form. Third, HHA contends that the jury received an overbroad definition of protected activity in the Jury Instructions. These three challenges are unpersuasive.
HHA's first objection is meritless. While the Jury Instructions did not instruct the jury that Miniex could not prevail unless she acted outside the scope of her job duties, Question 2 in the Verdict Form asked whether the protected activities in which the jury found Miniex engaged were outside the scope of her job duties.
HHA's second objection is also rejected. The Court instructed the jury that an essential element of Miniex's FCA retaliation claim was that Gunsolley took an adverse employment action against Miniex "because of" her protected activity.
HHA's third and final objection is forfeited and also without merit. Quoting the relevant statutory language, the Court instructed the jury that a protected action under the FCA "is a lawful act done in furtherance of efforts to stop one or more violations of the [FCA.]"
This objection is forfeited. While HHA now complains Court's definition of "protected activity" was in error, HHA did not submit any proposed jury instruction defining the term "protected activity." HHA's failure to submit an alternative instruction precludes relief here. See Fed. R. Civ. P. 51(d)(1)(B) ("A party may assign as error ... a failure to give an instruction, if that party properly requested it and—unless the court rejected the request in a definitive ruling on the record—also properly objected."); Microsoft Corp. v. 141 Ltd. P'ship, 564 U.S. 91, 112, 131 S.Ct. 2238, 180 L.Ed.2d 131 (2011) (refusing to consider argument that the district court erred by failing to give an instruction when the appellant "failed to request an instruction along these lines from" the district court); 9C CHARLES ALAN WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 2252 (3d ed. 2008) ("As the plethora of decided cases make clear, it is difficult for the losing party to persuade the appellate court that the trial court erred in failing to instruct the jury on a particular matter if no instruction actually was requested by the complaining party.").
Moreover, HHA's belated alternative is not substantively different from the Court's formulation of the definition "protected activity." Multiple cases that apply the "reasonably could lead" standard, including two decisions cited by HHA, recognize the standard is satisfied if, as the Court instructed in this case, the employee has a good faith, reasonable belief that the employer is committing fraud on the government. See Campie, 862 F.3d at 908; Hoyte v. Am. Nat. Red Cross, 518 F.3d 61, 71 (D.C. Cir. 2008); Schuhardt v. Wash. Univ., 390 F.3d 563, 567 (8th Cir. 2004); Fanslow v. Chi. Mfg. Ctr., Inc., 384 F.3d 469, 480 (7th Cir. 2004); Ruscher, 2014 WL 2618158, at *23. HHA fails to articulate how the Court's omission of the "reasonably could lead" formulation in favor of the "good faith, reasonable belief" phrasing creates "substantial and ineradicable doubt" that the jury was properly instructed in light of the interchangeable nature of
HHA fails to demonstrate the Court erroneously instructed the jury.
"[A] motion for a new trial based on evidentiary grounds should not be granted unless, at a minimum, the verdict is against the great weight of the evidence, not merely against the preponderance of the evidence." Songcharoen v. Plastic & Hand Surgery Assocs., P.L.L.C., 561 F. App'x 327, 337 (5th Cir. 2014) (per curiam) (quoting Carter v. Fenner, 136 F.3d 1000, 1010 (5th Cir. 1998)). Accord Dahlen v. Gulf Crews, Inc., 281 F.3d 487, 497 (5th Cir. 2002). "Against the great weight of the evidence is a standard not easily met." Scott v. Monsanto Co., 868 F.2d 786, 789 (5th Cir. 1989). A jury's finding is rarely against the great weight of the evidence when much of the relevant evidence is testimonial and in direct conflict —i.e., a "swearing match." See Peterson v. Wilson, 141 F.3d 573, 579 (5th Cir. 1998). Whether to grant a motion for new trial is within the district court's sound discretion. See OneBeacon Ins. Co., 841 F.3d at 676. "The district court abuses its discretion by denying a new trial only when there is an `absolute absence of evidence to support the jury's verdict.'" Wellogix, Inc. v. Accenture, L.L.P., 716 F.3d 867, 881 (5th Cir. 2013) (quoting Seidman v. Am. Airlines, Inc., 923 F.2d 1134, 1140 (5th Cir. 1991)).
HHA contends the jury's finding that HHA retaliated against Miniex for her protected activity is against the great weight of the evidence. Specifically, HHA contends Miniex failed to rebut HHA's legitimate non-discriminatory reasons for terminating her employment—unscheduled absences, tardiness, slowing down work, and disengagement. HHA contends Miniex's only evidence of pretext is the close temporal proximity between Gunsolley's discovery of her reporting and her discipline and termination. HHA argues that temporal proximity alone is inadequate as a matter of law to support a jury finding of retaliation. See Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007) ("[Plaintiff] is left with no evidence of retaliation save temporal proximity. Again, temporal proximity alone is insufficient to prove but for causation."). HHA further contends that its adherence to internal procedures when disciplining and terminating Miniex reveal that its stated reasons for Miniex's termination were not pretextual.
The Court is unpersuaded. Initially, HHA requests the Court apply an improper causation formulation. An FCA retaliation plaintiff must demonstrate her protected activities "were the but-for cause" of her employer's adverse actions. See U.S. ex rel. King v. Solvay Pharm., Inc., 871 F.3d 318, 333 (5th Cir. 2017). At the summary judgment phase, courts in the Fifth Circuit analyze FCA retaliation claims under the familiar burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Diaz v. Kaplan Higher Educ., L.L.C., 820 F.3d 172, 175 & n.3 (5th Cir. 2016). Where, as here, there has been a trial on the merits, courts proceed directly "to the ultimate question" of whether the plaintiff presented enough evidence for a reasonable
The Court concludes that it was not against the great weight of the evidence for the jury to determine that, but for her protected activity, Miniex would not have been disciplined or terminated. HHA's assertion that the jury's finding of causation is supported by only temporal proximity is not accurate. First, Miniex presented substantial direct and circumstantial evidence of Gunsolley's retaliatory motives. Gunsolley stressed to Miniex when she started that he just wanted her to "keep [him] out of the news."
Second, the jury could have reasonably concluded that Gunsolley made veiled threats of retaliation towards Miniex on multiple occasions. During their June 21, 2016, meeting where Miniex asked Gunsolley to let her bring her recommendations to the Board, he requested Miniex be a "team player" and asked her whether she was "happy working at HHA" and "liked her job."
Third, the jury's finding of causality is supported by Gunsolley's prompt change in his treatment of Miniex immediately after he learned of one of Miniex's protected actions. Gunsolley imposed his first formal disciplinary action, the Written Verbal Warning, on Miniex on September 8, 2016, the day following his receipt of Bryce and Reaves's memoranda stating that Miniex had discussed the Radford and Newland matters with the FBI. Before the Written Verbal Warning, Miniex had four consecutive years of positive reviews and raises, and HHA cites no negative comments by superiors. Cf. King, 871 F.3d at 334 (stating the summary judgment standard "can be met when `the plaintiff had highly positive performance reviews up until the complaint was leveled against the company, and then suffered a sharp decline in treatment immediately after the protected conduct
Fourth, based on the conflicting trial evidence, the jury could have reasonably concluded Gunsolley's stated reasons for Miniex's discipline and termination —Miniex's unscheduled absences, tardies, productivity concerns, and disengagement —were pretextual.
The jury could have reasonably concluded that Gunsolley's productivity and disengagement allegations against Miniex were substantively false in whole or in part, or were not credible or were exaggerated. Three HHA employees or former employees testified Miniex was a good employee who remained engaged throughout her time at HHA.
There are multiple bases for the jury to have reasonably concluded that Gunsolley's assertions that Miniex was chronically tardy, routinely had unscheduled absences, and did not effectively communicate her absences and tardies, were pretextual. Gunsolley based his September 8, 2016, Verbal Written Warning on his conclusion that for the preceding 12 months, Miniex had 15 unscheduled absences.
When Gunsolley suspended Miniex on November 29, 2016, and ultimately terminated
Finally, Gunsolley, in contravention of HHA's standard practice, did not consult Human Resources staff when computing Miniex's missed time. Nor did he involve Human Resources in Miniex's disciplinary and termination process.
The jury's conclusion that HHA disciplined and terminated Miniex because of her fraud reporting was not against the great weight of the evidence. A new trial based on HHA's evidentiary challenge is unwarranted.
The jury found Miniex suffered $370,571 in lost back pay, $600,000 in lost front pay, and $317,750 and $215,000 in past and future mental anguish damages, respectively. The Court entered judgment on that verdict, awarding Miniex $741,502 in back pay,
HHA contends the jury's wage and non-economic damages awards are excessive and unsupported by the evidence introduced at trial.
The Court is unpersuaded that Miniex's back pay award is excessive. The Court concludes that HHA's evidence at trial was insufficient to meet its burden to show Miniex failed to mitigate her damages or that the back pay awarded by the jury was excessive.
The Court concludes, on the other hand, that a front pay award of $600,000 is an unwarranted windfall. Such an award depends on a pair of unjustified assumptions: first, that but for her December 2016 termination Miniex would have remained employed at HHA for another eight years; and second, that Miniex will remain underemployed as a contract attorney making
The Court further concludes that Miniex's noneconomic damage awards are excessive relative to past awards in factually similar cases. Accordingly, the Court grants HHA's request for remittitur and will require Miniex to elect between lowering her past noneconomic damages to $217,070.34 and a new trial. Last, the Court concludes there is insufficient evidence to support an award of future noneconomic damages and downwardly amends Miniex's future noneconomic damages award to the nominal sum of $100.
Under the FCA, an employee who suffers retaliation for activity protected by the FCA is entitled to "all relief necessary to make that employee ... whole." See 31 U.S.C. § 3730(h)(1). This includes reinstatement, double back pay, interest on the back pay, and compensation for "special damages." See id. § 3730(h)(2). When reinstatement is not feasible, as is the case here based on stipulation of the parties, the plaintiff is entitled to front pay in lieu of reinstatement. Cf. Julian v. City of Houston, 314 F.3d 721, 728 (5th Cir. 2002) (using front pay in lieu of reinstatement in the ADEA context). "Special damages" under the FCA include damages for emotional distress, attorney fees, and costs. See Neal v. Honeywell, Inc., 191 F.3d 827, 831-34 (7th Cir. 1999).
To prove her wage-related damages, Miniex relied on her own testimony as well as that of her damages expert, Jeremy Robin. Before her termination in December 2016, Miniex's annual compensation was $160,000 plus retirement and other benefits worth $13,600 in present dollars.
To calculate her future lost wages, Miniex's expert projected that, had Miniex not been retaliated against, Minex would have remained employed at HHA for ten years after the date of her termination and seven years and nine months after the
HHA contends that the jury's back pay award is excessive because Miniex failed to mitigate her damages by seeking and obtaining similar employment after her termination. The Court is unpersuaded by HHA's mitigation argument. The Court also concludes that the jury's past lost wage award is supported by adequate trial evidence and downward amendment of that award is not warranted.
"[B]ack pay is an equitable remedy, the award of which [is] review[ed] for abuse of discretion." Giles v. Gen. Elec. Co., 245 F.3d 474, 492 (5th Cir. 2001). "Because it is an equitable remedy, back pay is subject to a duty to mitigate damages." Id. "The employer has the burden of proving a failure to mitigate, and may do so by demonstrating that substantially equivalent work was available and that the plaintiff did not exercise reasonable diligence to obtain it."
HHA fails to demonstrate that Miniex did not exercise reasonable diligence in the period between her termination and trial. HHA did not contest Miniex's testimony that she applied for between 150 to 175 other positions over a roughly one-and-a-half-year period and received only two or three in-person interviews and no job offers.
Moreover, HHA does not cite any trial evidence or testimony suggesting that "substantially equivalent work was available" to Miniex. See Buckingham, 64 F. Supp. 3d at 984. "Substantially equivalent work" is that "employment which affords virtually identical promotional opportunities, compensation, job responsibilities, working conditions, and status as the position from which" the plaintiff was terminated. See Sellers, 902 F.2d at 1193. HHA relies on its non-lawyer damages expert's testimony that, based on Bureau of Labor Statistics information, a person with Miniex's experience who had also graduated from a "top 10" law school should have been able to acquire a higher paying job than contract work within 12 to 39 weeks of her termination.
"A front pay award rests within the court's equitable discretion." Miller v. Raytheon Co., 716 F.3d 138, 146 (5th Cir. 2013). "Although front pay is an equitable remedy for the district court to determine, the court may empanel an advisory jury." Mota v. Univ. of Tex. Hous. Health Sci. Ctr., 261 F.3d 512, 526 (5th Cir. 2001). The Court informed the parties it would empanel an advisory jury on the front pay issue and did so.
"Front pay is awarded to compensate the plaintiff for lost future wages and benefits." Rutherford v. Harris County, 197 F.3d 173, 188 (5th Cir. 1999) (quoting Shirley v. Chrysler First, Inc., 970 F.2d 39, 44 (5th Cir. 1992)). "[A]lthough [the Fifth Circuit] will generally accord `wide latitude' to the district courts in the determination of front pay, [the Circuit] ha[s] also emphasized that such awards must be carefully crafted to avoid a windfall to the plaintiff." Palasota v. Haggar Clothing Co., 499 F.3d 474, 491 (5th Cir. 2007) (quoting Deloach v. Delchamps, Inc., 897 F.2d 815, at 822 (5th Cir. 1990)).
"Front pay can only be calculated through intelligent guesswork, and [the Fifth Circuit] recognize[s] its speculative character by according wide latitude in its determination to the district courts." Downey v. Strain, 510 F.3d 534, 544 (5th Cir. 2007) (quoting Sellers v. Delgado College, 781 F.2d 503, 505 (5th Cir. 1986)). The Fifth Circuit has identified six factors relevant to the determination of a front pay award: "(1) the length of prior employment, (2) the permanency of the position held, (3) the nature of the work, (4) the age and physical condition of the employee, (5) possible consolidation of jobs, and (6) the myriad other non-discriminatory factors which could validly affect the employer/employee relationship." Id. (citing Reneau v. Wayne Griffin & Sons, Inc., 945 F.2d 869, 871 (5th Cir. 1991)). Moreover, the Fifth Circuit has recognized that a front pay award "should reflect earnings in mitigation of damages" and "district courts `must consider [a plaintiff's] failure to mitigate... damages in determining the extent to which, if at all, front pay is appropriate.'" Giles, 245 F.3d at 489 (quoting Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927, 937 (5th Cir. 1996), and Hansard v. Pepsi-Cola Metro. Bottling Co., 865 F.2d 1461, 1470 (5th Cir. 1989)).
Based on the trial evidence and testimony, the Court concludes that a front pay award of $600,000 is excessive. According to Miniex's expert's model, a front pay award of $600,000 is roughly equivalent to the pay and benefits Miniex would receive if she continued to work at HHA until March 2024.
Several factors support the Court's conclusion. First, Miniex was an at-will employee that had been employed at HHA
While the aforementioned factors weigh against awarding Miniex an extended period of front pay, the Court nevertheless concludes that one year and nine months of front pay is warranted. Miniex, until the events giving rise to this suit, was a valued employee and was happy with her job.
Miniex cites a Fifth Circuit decision holding that an award of five years of front pay is "within the court's discretion." See Deloach, 897 F.2d at 822. This authority, however, does not suggest that a five-year front pay award is presumptively reasonable. Rather, district courts, after conducting "intelligent guesswork," retain discretion to award a lesser amount. See Downey, 510 F.3d at 544-45 (holding district court did not abuse discretion in awarding two years front pay). For the foregoing reasons, the Court concludes a front pay award of $216,861, the net present value of Miniex's lost earnings and benefits had she remained employed at HHA until the end of 2020, is warranted.
To prove her noneconomic damages, Miniex relied upon her own testimony and others' observations of her in mid- and late-2016. Miniex testified that after her confrontation with Gunsolley in June 2016, she became unhappy, afraid, stressed, and
"There is a strong presumption in favor of affirming a jury award of damages." Giles, 245 F.3d at 488. However, "[c]ompensatory damages for emotional distress and other intangible injuries are not presumed from the mere violation of... statutory rights, but require specific individualized proof, including how each 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). When a jury award of compensatory damages is "predicated exclusively on the plaintiff's testimony," the district court must "scrupulously analyze" the award. Brady v. Fort Bend County, 145 F.3d 691, 719 (5th Cir. 1998). "When a plaintiff's testimony is particularized and extensive, such that it speaks to the nature, extent, and duration of the claimed emotional harm in a manner that portrays a specific and discernable injury, then that testimony alone may be sufficient." Id. at 720. See also Thomas v. Tex. Dep't of Criminal Justice, 297 F.3d 361, 368 (5th Cir. 2002) (holding that the "two necessary elements for the plaintiff to recover emotional distress damages are "specific evidence of the nature and extent of the harm" and "more than vague allegations"). Once this Court determines that non-nominal damages for emotional distress are warranted, the Court reviews the size of the award "with deference" because "the harm is subjective and evaluating it depends considerably on the demeanor of witnesses." Giles, 245 F.3d at 488 (quoting Patterson, 90 F.3d at 937-38).
"[W]hen a district court believes a verdict is excessive, it may condition a denial of a new trial on the plaintiff's filing a remittitur of a stated amount." Evers v. Equifax, Inc., 650 F.2d 793, 797 (5th Cir. Unit B 1981). Whether to grant remittitur is within the district court's sound discretion. See Brunnemann v. Terra Int'l, Inc., 975 F.2d 175, 178 (5th Cir. 1992). The size of a remittitur is determined "in accordance with this circuit's `maximum recovery rule.'" See id. (quoting
Under the Fifth Circuit's "maximum recovery rule," this Court should not "reduce damages where the amount awarded is not disproportionate to at least one factually similar case from the relevant jurisdiction." Lebron v. United States, 279 F.3d 321, 325 (5th Cir. 2002) (quoting Douglass v. Delta Air Lines, Inc., 897 F.2d 1336, 1339 (5th Cir. 1990)). The Court "measure[s] disproportionality by applying a percentage enhancement to past similar awards." See Puga v. RCX Sols., Inc., 922 F.3d 285, 297 (5th Cir. 2019). "The rule allows some leeway, so it permits a verdict at 150% of the highest inflation-adjusted recovery in an analogous, published decision." Longoria v. Hunter Express, Ltd., 932 F.3d 360, 365 (5th Cir. 2019).
When a "review of the caselaw reveals that there is no factually similar case in the relevant jurisdiction[,] the maximum recovery rule is not implicated." Foradori v. Harris, 523 F.3d 477, 505 (5th Cir. 2008) (alteration in original) (quoting Vogler v. Blackmore, 352 F.3d 150, 158 (5th Cir. 2003)). "Because the facts of each case are different, prior damages awards are not always controlling; a departure from prior awards is merited `if unique facts are present that are not reflected within the controlling caselaw.'" Learmonth v. Sears, Roebuck & Co., 631 F.3d 724, 739 (5th Cir. 2011) (quoting Lebron, 279 F.3d at 326). In such cases, "the maximum recovery rule is not implicated" and the Court should "refuse to substitute [its] judgment for that of the jury." Id.
The Court has already held that the trial evidence supports more than a nominal award of past noneconomic damages.
In Forsyth v. City of Dallas, the Fifth Circuit upheld jury awards to two plaintiffs, respectively, of $100,000 and $75,000 for combined past and future emotional anguish. See 91 F.3d 769, 772-73 (5th Cir. 1996). There, plaintiffs, two veteran undercover detectives, sued the Dallas Police Department for retaliating against them in violation of the First Amendment and the Texas Whistleblower Act. Id. The $100,000 award was supported by one plaintiff's testimony
In Vadie v. Mississippi State University, the Fifth Circuit remitted an emotional distress award of $300,000 to $10,000 in a race discrimination case. See 218 F.3d 365, 378 (5th Cir. 2000). There, the plaintiff's only support for his emotional injury were his conclusory statements that his loss of promotion "destroyed" and "totally ruined him"; he became "sick, totally ill, physically, mentally, and everything"; he saw "many doctors" and took "many pills"; he could not "sleep for months," had headaches and nausea, and was under "severe doctor surveillance." Id. at 377.
In Williams v. Trade Publishing Co., the Fifth Circuit upheld a jury award in a sex discrimination case of $100,000 for emotional distress. See 218 F.3d 481, 483, 486 (5th Cir. 2000) (per curiam). There, the plaintiff "testified specifically as to her severe emotional distress due to the discharge... resulting in sleep loss, beginning smoking and a severe loss of weight." Id. at 486. The plaintiff was further awarded $106,000 and $27,160 in back pay and front pay, respectively. Id. at 484.
In Giles, the Fifth Circuit remitted an emotional distress award of $300,000 to $150,000. See 245 F.3d at 489. There, the plaintiff sued for discrimination and retaliation under the Americans with Disabilities Act ("ADA") based on his termination. Id. at 479-80. The plaintiff recovered $141,110 in front pay, but no back pay. Id. at 489-90, 492-93. To support his emotional distress award, the plaintiff testified that he experienced trouble sleeping, headaches, and loss of prestige and social connections associated with his position. Id. at 488. The plaintiff's symptoms were corroborated by a coworker, who testified that the plaintiff appeared "despondent, depressed, down and absolutely utterly discouraged about not being able to come back to work." Id.
In Thomas, the Fifth Circuit affirmed a $30,000 award of past emotional damages and remitted a $100,000 award of future emotional damages to $75,000. See 297 F.3d at 371-72. There, the plaintiff alleged her employer failed to promote her based on her sex, race, and in retaliation for her complaints to the Equal Employment Opportunity Commission ("EEOC"). Id. at 363. The plaintiff testified "to severe past emotional distress"—weeping, feelings of failure, isolation, and helplessness, depression, loss of sleep, nausea, and taking antidepressants. Id. at 370. Other witnesses corroborated the severity of the plaintiff's past emotional distress. Id. By the time of her trial, however, the plaintiff had been transferred to another unit, where she was happy, received favorable evaluations, and had been named employee of the month. Id. at 370-71. Moreover, the district court ordered the defendant to promote the plaintiff. Id. at 365. While the Circuit recognized that "[t]he evidence pointed to some ongoing and future emotional distress," it was "nothing as severe as what [she] suffered during the retaliatory period." Id. at 371. Based on the diminution in plaintiff's emotional suffering, the Circuit determined that "a reasonable jury could not have concluded that [the plaintiff's] future emotional distress will be over three times worse than the emotional harm she has already suffered." Id. Without relying on the guidance of another award of future
In Salinas v. O'Neill, the Fifth Circuit again remitted a noneconomic $300,000 jury award to $150,000. See 286 F.3d 827, 833 (5th Cir. 2002). There, the plaintiff sued under Title VII and the Age Discrimination in Employment Act ("ADEA"), alleging his employer failed to promote him because of his race, age, and in retaliation for filing a charge with the EEOC. Id. at 829. The plaintiff testified to his "high level of paranoia regarding further retaliation," using "lots" of sick leave, "visiting physicians more than seventy times," and his "deteriorating relations with his wife and son." Id. at 832. Moreover, the plaintiff's wife corroborated his testimony and the jury awarded the plaintiff $16,000 in medical expenses. Id. Nevertheless, the Fifth Circuit remitted the emotional damage award from $300,000 to $150,000. Id. at 833.
The Court concludes that "the highest inflation-adjusted recovery in an analogous, published [Fifth Circuit] decision" is Giles, decided in 2001. See Longoria, 932 F.3d at 365. Both Miniex and the plaintiff in Giles suffered physical manifestations of emotional distress, which were corroborated by a coworker. Both plaintiffs' job losses were associated with lost prestige, social connections, and diminished future earnings. The Giles Court held that the plaintiff's maximum recovery was $150,000. Adjusted for inflation, the Giles plaintiff's recovery in 2019 dollars is $217,070.34.
The Court determines Miniex has failed to demonstrate entitlement to more than nominal future noneconomic damages. While Miniex introduced substantial evidence of her past emotional distress, Miniex failed to introduce "specific individualized proof" that she suffers from ongoing emotional distress. See DeCorte, 497 F.3d at 442. Cf. Thomas, 297 F.3d at 371-72 (ordering remittitur of future emotional damages because while "[t]he evidence pointed to some ongoing and future emotional distress," it was "nothing as severe as what [the plaintiff] suffered during the retaliatory period"). Because Miniex's proof of her future emotional damages is "predicated exclusively on [her own] testimony," the Court must "scrupulously analyze" the award. See Brady, 145 F.3d at 719.
The jury was properly instructed and could reasonably find for Miniex on all essential elements of her FCA retaliation claim. Moreover, the jury's back pay award was supported by trial evidence and not excessive. The Court nevertheless concludes that the jury's award of $600,000 in front pay is excessive and will downwardly amend its judgment to award Miniex $216,861 in front pay. The Court future concludes Miniex's maximum recovery for her past noneconomic damages is $217,070.34 and that only a nominal award of $100 is appropriate for Miniex's future noneconomic damages. It is therefore
