Lesky v. Cohen ( 1999 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 98-11391
Summary Calendar
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EDWARD J. LESKY,
Plaintiff-Appellee,
VERSUS
WILLIAM S. COHEN, ET AL,
Defendants,
WILLIAM S. COHEN, Secretary of Defense, Department of
Defense, Army and Air Force Exchange Service,
Defendant-
Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
(3:95-CV-147-X)
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June 30, 1999
Before DAVIS, DUHÉ, and PARKER, Circuit Judges.
PER CURIAM:*
The district court awarded appellee, Edward J. Lesky (“Lesky”) $200,000 in compensatory
damages for mental anguish and loss of career for Lesky’s retaliation claim brought under Title VII.
Because we find that Lesky failed to provide sufficient evidence to support either of these items of
damage, we vacate the award and remand this case to the district court.
In July 1993, Lesky filed a complaint against his employer, the Army and Air Force Exchange
Service (“AAFES”), with the Equal Employment Opportunity Commission (“EEOC”). Lesky’s
complaint alleged that Lesky, a white male, had been non-selected for promotion to the position of
*
1 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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Chief, People Development and Training Division, on the basis of race. Javier E. Cerna, an Hispanic
male, was instead chosen for the position. In September or October of 1993, Lesky learned that he
would be rotated from Europe back to the United States, in spite of his request for an extension.
Lesky was ultimately rotated to a position in a different department.
After exhausting his administrative remedies, Lesky filed the present Title VII suit alleging
adverse personnel action because of race discrimination, disparate impact and retaliation. After a
two-week trial, the district court issued its Findings of Fact and Conclusions of Law. The district
court found in favor of Lesky solely on his retaliation claims and awarded Lesky $200,000 in damages
for loss of career and mental anguish. AAFES then filed this appeal challenging the sufficiency of the
evidence for such an award.
II.
A.
A district court’s award for emotional damages under Title VII is reviewed on appeal for
abuse of discretion. Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927, 940 (5th Cir. 1996), cert.
Denied, 519 U.S. 1091, 117 S. Ct. 767, 136 L. Ed. 2d 713 (1997).
An award for emotional distress or mental anguish must “be supported by competent evidence
concerning the nature of the injury.” Carey v. Piphus, 435 U.S. 247, 98 S. Ct. 1042 (1978). A
plaintiff will be awarded only nominal damages if he fails to establish an “actual injury” with sufficient
evidence. In Patterson v. P.H.P. Healthcare, 90 F.3d 927 (5th Cir. 1996), this court held that there
must be a “specific discernable injury to the claimant’s emotional state” to support an award for
mental anguish. Id. at 941. In finding that the district court abused its discretion in awarding
$150,000 in emotional damages to Patterson, we stated: “No proof of actual injury exists in this case.
Because Patterson failed to present sufficient competent testimony and/or other evidence to
demonstrate the nature and extent of emotional harm caused by her unlawful termination, we hold
that the district court abused its discretion in awarding her $100,000 for emotional distress . . . Carey
teaches us that an award of damages for ‘distress’ must be supported by competent evidence
concerning the injury. Carey, 435 U.S. at 264 n. 20, 98 S. Ct. at 1052 n. 20 (emphasis added.).”
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Patterson, 90 F.3d at 941.
In the instant case, as in Patterson, the only evidence presented was Lesky’s uncorroborated
testimony. Lesky testified that he felt “hurt,” “angry,” “betrayed,” “depression,” self doubt,” “anger,”
and, for a brief time “hatred.” Lesky also testified generally that the adverse affects on his family
caused him mental anguish. Lesky admitted that he did not seek psychological assistance, but
attributed this to his “Marine Corps. background.”
Ordinarily, testimony from a plaintiff alone is insufficient to support a mental anguish award;
specific proof, often in the form of psychological or medical evidence, or other corroborating
testimony from a third party, is usually necessary. Allison, et al v. Citgo Petroleum Corp., 151 F.3d
402, 417 (5th Cir. 1998). The only exception in this Circuit since Patterson in which compensatory
damages for emotional distress were permitted on the basis of the plaintiff’s testimony alone was in
Migis v. Pearle Vision, 135 F.3d 1041(5th Cir. 1998). However, in that case the plaintiff testified to
specific physical manifestations of emotional distress such as anxiety, sleeplessness, stress, and crying
jags, in addition to “marital hardship” and “loss of self-esteem.” Id. at 1046. The court found that
Migis’ testimony was sufficiently detailed and that the district court did not abuse its discretion when
it awarded Migis $5,000 in compensatory damages. Id. at 1047. In the instant case, Lesky failed
to provide anything other than general statements as to his feelings. There is insufficient evidence in
Lesky’s testimony of a specific injury (manifested emotionally or physically) and no corroborating
evidence. Thus, the district court abused its discret ion when it awarded Lesky $100,000 for
emotional distress.
II.
B.
The evidence is also insufficient to sustain an award of $100,000 for loss of career. It is the
plaintiff’s burden to show the amount of his compensable damages. In Prunty v. Arkansas
Freightways, Inc., 16 F.3d 649 (5th Cir. 1994), the plaintiff, Mrs. Prunty, sought damages in her Title
VII sexual harassment claim for the differences in wages and benefits between her former job and her
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current job. She also sought travel expenses for the additional driving time to her new job. This
court affirmed the district court’s denial of damages, stating that “[i]t is truistic, indeed elementary
that one who seeks compensatory damages must present evidence of those damages.” Id. at 652.
In this case, Lesky failed to present any evidence of loss of career. At the time of trial, he was still
employed by AAFES (although in a different department), there was no evidence of salary difference
between the two positions, and there was no evidence of the likelihood of promotion had Lesky
remained at his former position.1
Lesky failed to present any evidence of damage for loss of career. “. . .[W]hen one of the
prima facie elements of a claim is damages and the claimant fails to introduce evidence of those
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1 The following exchange between counsel for Lesky and the district court illustrates the lack
of evidence:
Counsel for Lesky:
“We are also asking for compensatory damages, and the Court has asked me to expand on
this . . . Ed Lesky did not get fired. He was simply transferred to another job. That eliminates the
possibility of back pay, in addition to which and, quite candidly, with the Court, there is no proof that
even if Ed Lesky had been appointed or selected to be chief of Personnel, he would have necessarily
been promoted to the grade UA-15 because you have to go through a promotion board. But while
it’s pretty much automatic, you can’t really offer evidence that it definitely would have happened.
So that eliminates the possibility in all candor that you can grant Mr. Lesky back pay for a job
he might have gotten, in addition to which I really don’t think there is a possibility of awarding future
pay because there is no showing that he cannot continue to work for AAFES. He is in fact still doing
so. That frankly leaves him or Ed Lesky in the position of most Title VII plaintiffs who prevail in a
case. They are usually stuck with the fact, unless they have the misfortune of being fired, of receiving
damages for pain and suffering, anxiety, discomfort, the unfortunate process they went through from
being discriminated against. We think this is a basis upon which to award Mr. Lesky at least
$100,000 . . .”
The Court:
“Where did we get that number from? Where does that number come from?”
Counsel for Lesky:
“Frankly, your honor, that is just our judgment that that is a fair sum that can be measured
from that type of anxiety and anguish.”
The Court:
“While damages don’t have to be calculated . . . still there must be some rational basis from
the record and from the evidence to conclude a number. I mean, it would be just as easy to say
10,000, 100,000, a million. I mean , where do we–it’s like nailing Jell-O to the wall here . . .
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damages . . .the district court has no choice but to deny the monetary relief requested.” Prunty v.
Arkansas Freightways, Inc., 16 F.3d 649, 652 (5th Cir. 1994).
Conclusion
Because Lesky failed to produce sufficient evidence to support the damages award, the award
is vacated and the case is remanded to the district court for entry of a nominal award. The district
court should also reconsider the award of attorney’s fees in light of the nominal award.
VACATED and REMANDED.
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