Hitt v. Connell

             REVISED AUGUST 26, 2002


          UNITED STATES COURT OF APPEALS
               FOR THE FIFTH CIRCUIT
              _______________________

                   No. 01-50117
             _______________________

               HAROLD MERRITT HITT,

                    Plaintiff-Counter-Defendant-Appellee,

                      versus

           JERRY CONNELL, ETC.; ET AL.,

                                               Defendants,

JERRY CONNELL, Bexar County Constable, Precinct 2,
    Individually and in His Official Capacity,

                    Defendant-Counter-Claimant-Appellant.

             _______________________

                   No. 01-51010
             _______________________

               HAROLD MERRITT HITT,

                                       Plaintiff-Appellee,

                      versus

           JERRY CONNELL, ETC.; ET AL.,

                                               Defendants,

JERRY CONNELL, Bexar County Constable, Precinct 2,
    Individually and in his official capacity,

                                       Defendant-Appellant.
_________________________________________________________________

          Appeals from the United States District Court
                for the Western District of Texas
_________________________________________________________________
                          July 31, 2002


Before JONES, EMILIO M. GARZA, and STEWART, Circuit Judges.

EDITH H. JONES, Circuit Judge:

           In this 

42 U.S.C. § 1983

 action, the jury found that

Bexar County, Texas, Constable Jerry Connell fired deputy constable

Harold Merritt Hitt in retaliation for Hitt’s exercise of his First

Amendment right to freedom of association.       The jury awarded Hitt

$300,000 in compensatory damages, three-fourths of which was for

non-pecuniary harms like “mental and emotional distress”.               The

district court subsequently awarded Hitt approximately $88,500 in

attorney’s fees and costs pursuant to 

42 U.S.C. § 1988

.          Connell

has appealed both the judgment and the award of attorney’s fees.

           We hold principally that the Bexar County Civil Service

Commission’s decision upholding Hitt’s termination did not break

the causal connection between the protected activity and the

adverse   employment   action,   and   Connell   was   not   entitled    to

qualified immunity. However, Hitt introduced insufficient evidence

to support an award of nonpecuniary damages, so that a portion of




                                   2
his damages must be vacated and the attorney’s fee award remanded

for reconsideration.

                            I.   BACKGROUND

            Harold Merritt Hitt was employed as a deputy constable in

precinct 2 of Bexar County from 1993 until March 1997, when he was

fired by Constable Connell.      Hitt alleged, and a jury found, that

his employment was terminated because Connell disapproved of Hitt’s

involvement with two affiliated labor unions, the Alamo Area Peace

Officers’ Association and the Texas Conference of Police and

Sheriffs (“TCOPS”).

            The dispute between Connell and Hitt began in October

1995 when Connell ordered his deputies to start reporting to the

office 15 minutes before their shifts were scheduled to begin.

Deputy Hitt, who was serving as the secretary of the local union,

wrote to TCOPS for advice about getting paid for these extra 15

minutes.    Connell learned of Hitt’s letter and called a general

meeting of his deputies, one of whom surreptitiously tape-recorded

what was said.    Connell reiterated that his deputies would not be

paid for the 15 minutes before their shifts, but his main point was

that salary grievances should not be aired outside the constable’s

office.    Connell suggested that deputies who continued to complain

to the union were in danger of losing their commissions.

            Three deputies -- Ray Mullins, Joe Algueseva, and Robert

Whitney -- testified at trial that Constable Connell spoke to each

                                    3
of them privately not long after this meeting and told them that he

would not tolerate union activity in his office.                  Each deputy

testified that Connell referred specifically to Hitt and said that

he intended to fire Hitt because he was a “troublemaker.”                One of

the deputies, Ray Mullins, served as president of the local union.

Mullins tape-recorded a conversation in which Connell said several

times that they would have a “running gun battle” if Mullins did

not quit the union.      Connell threatened to “play dirty” and said he

would start by taking away Mullins’s $500 monthly car allowance.

During this recorded conversation, Connell observed in passing that

he could fire Hitt with impunity.1

            Connell fired Hitt in March 1997. Connell testified that

he harbored no ill will toward the deputies who were active in the

union.    Moreover, Connell insisted that Hitt would have lost his

job regardless of his union activity because Hitt had made a “bomb

threat” in a January 1997 telephone conversation with his immediate

supervisor, Deputy Robert North.

            The gist of the telephone conversation is not in dispute.

Hitt was angry that North had assigned a first-year constable to

patrol traffic in a certain neighborhood.             In his account of the




      1
             Mullins nevertheless remained active in the union, and Connell fired
him in early 1996. Mullins appealed the decision, the Bexar County Civil Service
Commission ordered that Mullins be reinstated, and he was assigned to a new
precinct.

                                       4
conversation, which was written approximately three weeks after the

telephone conversation, Deputy North wrote:

     Sgt. Hitt stated, was I trying to get him (Sgt. Hitt) in
     trouble or fired. Sgt. Hitt stated, he knew what was
     going on and that I (Sgt. North) was fixing to be in the
     war. . . .

     Sgt. Hitt stated, that when the bomb went off with Horn
     (Asst. Chief Horn) that it might get my (Sgt. North) legs
     also.

     As Sgt. Hitt and myself (Sgt. North) are both Vietnam
     veterans, it could have meant that the bomb, when it went
     off, would take out Asst. Chief Horn, and possibly my
     (Sgt. North) legs, as we both had seen in Vietnam.

     This statement could have only meant to be taken
     figuratively.   But I don’t know this for sure.    Sgt.
     Hitt’s tone of voice was filled with a lot of anger.

Hitt concedes that Deputy North’s account of the conversation is

generally accurate.   Hitt argues, however, that violent figures of

speech were used regularly around the office (e.g., Connell’s

“running gun battle”) and that “the war” and “the bomb” referred to

an ongoing criminal investigation of the constable’s department.

          Sergeant Gerardo De Los Santos of the Texas Rangers

testified at trial that he had been investigating the constable’s

office since Deputy Mullins had contacted him in December 1995. At

the time of the telephone conversation between Hitt and North,

Sergeant De Los Santos was completing his investigation and had

decided that there was sufficient evidence of retaliation and

discrimination to file a report with the Bexar County District

Attorney’s Office.    (He interviewed and took statements from Hitt

                                  5
in January and February of 1997, and then filed his report in late

February.)

           Deputy North admitted at trial that he had never really

believed     that   Hitt   was   making   a   legitimate   bomb   threat.

Consequently, North waited three weeks before informing Constable

Connell and Chief Deputy Chuck Horn of the conversation, and one

reason why he submitted the report was that he had been ordered “to

look for things to write Hitt up about.”             Then, after North

submitted the memorandum quoted above, Chief Deputy Horn instructed

North to revise his memo and omit any suggestion that Hitt’s

reference to a “bomb” should be taken figuratively.

           In February 1997, Constable Connell delivered a proposed

notice of termination to Hitt.       Citing the telephone conversation

between Hitt and North, Connell wrote that such “unprofessionalism

. . . cannot and will not be tolerated.”           On March 5, Connell

informed Hitt that his employment was terminated.          Hitt appealed

his dismissal to the Bexar County Civil Service Commission, but the

commissioners who heard the appeal voted to uphold Constable

Connell’s decision.

           Hitt filed this 

42 U.S.C. § 1983

 action in February 1999.

Before trial, the district court dismissed all claims except for

Hitt’s free speech and free association claims against Connell in

his individual capacity.         Then, at the close of evidence, the

district court granted judgment as a matter of law for Connell on

                                     6
the free speech claim.     The jury returned a verdict for Hitt on the

First Amendment association claim and awarded him $300,000 in

compensatory damages.

          The   district    court   entered   judgment   for   Hitt   and,

pursuant to 

42 U.S.C. § 1988

, awarded Hitt $88,487.94 in attorney’s

fees and expenses.      Connell’s appeals of both awards have been

consolidated.

                             II. DISCUSSION

          The First Amendment protects a public employee’s right to

associate with a union.     As this court has stated,

     This right of association encompasses the right of public
     employees to join unions and the right of their unions to
     engage in advocacy and to petition government in their
     behalf. Thus, the first amendment is violated by state
     action whose purpose is either to intimidate public
     employees from joining a union or from taking an active
     part in its affairs or to retaliate against those who do.


Boddie v. City of Columbus, Miss., 

989 F.2d 745, 749

 (5th Cir.

1993), quoting Professional Ass’n of College Educators v. El Paso

County Community College Dist., 

730 F.2d 258, 262

 (5th Cir. 1984)

(citations omitted).

          To prevail on his First Amendment retaliation claim, Hitt

had to show that (1) he suffered an adverse employment action, (2)

his interest in “associating” outweighed the constable’s interest

in efficiency, and (3) his protected activity was a substantial or

motivating factor in the adverse employment action. Breaux v. City


                                    7
of Garland, 

205 F.3d 150, 156

, 157 n.12 (5th Cir. 2000); Boddie,

989 F.2d at 747

. Connell’s principal arguments on the merits focus

on the third element of causation.                 He contends that Hitt’s

participation in union activity was not a motivating factor in his

discharge because the county civil service commissioners (who had

no   retaliatory       animus)    actually       made    the    decision    or,

alternatively, Connell fired Hitt because of the bomb threat.               The

jury concluded, however, that Constable Connell made the decision

to fire Hitt and that he did so in retaliation for Hitt’s protected

activity.   Their verdict may be overturned only if, “after viewing

the trial record in the light most favorable to the verdict, there

is no legally sufficient evidentiary basis for a reasonable jury to

have found for the prevailing party.”             Mato v. Baldauf, 

267 F.3d 444, 450-51

 (5th Cir. 2001)(quotations and citations omitted).

                        A.   Statute of Limitations

            Connell’s contention that this suit was time-barred is

easily rejected.       While Texas’s two-year statute of limitations

applied to Hitt’s constitutional injury claims, Piotrowski v. City

of Houston, 

237 F.3d 567, 576

 (5th Cir. 2001), the date a § 1983

claim   accrues   is   governed    by       federal,   not   state   law.   The

limitations period begins to run when the plaintiff “becomes aware

that he has suffered an injury or has sufficient information to

know that he has been injured.”         Helton v. Clements, 

832 F.2d 332, 335

 (5th Cir. 1987).

                                        8
            Connell tries to argue that Hitt’s retaliation claim

accrued at some time before his March 1997 termination, either when

Hitt “felt his job was threatened” at the October 1995 office

meeting; or when Hitt acknowledged in a December 1995 memo that he

was afraid he was going to be fired; or when Hitt received a

proposed notice of termination on February 14, 1997.              If the cause

of action accrued on any of these dates, then Hitt’s lawsuit --

filed on February 16, 1999 -- would not be timely.

            But neither the perception of a threat to one’s job, nor

fear of being fired, nor even the proposed notice of firing

constitutes an actionable injury.          In this context, the injury is

unlawful retaliation resulting in an “adverse employment action,”

such as a discharge, demotion, or formal reprimand.                See Breaux,

205 F.3d at 157-58

.        Hitt was injured, and his cause of action

accrued, when his employment was terminated on March 5, 1997.                The

lawsuit was timely.2

                    B.   The Civil Service Commission

      2
            Connell’s argument rests on a misreading of the Supreme Court’s
decision in Delaware State College v. Ricks, 

449 U.S. 250

, 

101 S.Ct. 498

, 

66 L.Ed.2d 431

 (1980). In Ricks, the plaintiff alleged that the college unlawfully
discriminated against him when it denied him tenure. After denying him tenure,
however, the college offered Ricks a “terminal” employment contract; both parties
understood that Ricks had to leave at the end of the year. The Supreme Court
held that the statute of limitations began to run when the college reached a
final decision denying tenure, rather than when Ricks’s employment ultimately
ceased. The result hinged on the fact that Ricks complained about a single
adverse employment action: the denial of tenure. As the Court clearly explained,
“If Ricks intended to complain of a discriminatory discharge, he should have
identified the alleged discriminatory acts that continued until, or occurred at
the time of, the actual termination of his employment. But the complaint alleges
no such facts.” Ricks, 

449 U.S. at 255-58

, 

101 S.Ct. at 503-04

.

                                       9
          The second (and most difficult) question in this case is

the legal effect of the Bexar County Civil Service Commission’s

decision upholding the termination of Hitt’s employment.      Connell

recognized the importance of this fact, but he vacillated between

characterizing the commission, on one hand, as a quasi-judicial

body whose findings of fact were entitled to preclusive effect in

this § 1983 action; and, on the other, as an executive board, which

has the final decision-making power with respect to all personnel

matters in Bexar County.

          In his motion for summary judgment, Connell urged the

court to give issue or claim preclusive effect to the commission’s

finding that Hitt made a credible bomb threat that warranted

dismissal.   As Connell pointed out, the Supreme Court has “long

favored application of the common-law doctrines of collateral

estoppel (as to issues) and res judicata (as to claims) to those

determinations   of   administrative   bodies   that   have   attained

finality.”   Astoria Fed. Sav. & Loan Ass’n. v. Solimino, 

501 U.S. 104, 107

, 

111 S.Ct. 2166, 2169

 (1991).      Further, federal courts

must ordinarily give a state agency’s decision “the same preclusive

effect to which it would be entitled in the state’s courts.”    Univ.

of Tennessee v. Elliott, 

478 U.S. 788, 799

, 

106 S.Ct. 3220, 3226

(1986).   This court has implied, however, that federal rules of

claim preclusion may apply to determine whether § 1983 claims are

barred from litigation in federal court by the outcome of prior

                                 10
unreviewed state administrative adjudications.              Frazier v. King,

873 F.2d 820, 823-25

 (5th Cir. 1989).3          The magistrate judge found,

in a ruling adopted by the district court, that the civil service

commission’s decision was entitled neither to claim nor issue

preclusive effect on Hitt’s subsequent § 1983 action.                   Whether

those conclusions were correct or not is of no moment, since

Connell has not appealed them.

            Instead, the argument Connell ultimately adopted at trial

and now pursues on appeal is that the Bexar County Civil Service

Commission    --   rather    than   Constable    Connell    --   is   the   final

decision-maker     with     respect   to    employment     decisions    in   the

constables’ offices.        It is beyond dispute that the commissioners

conducted an independent inquiry into Hitt’s discharge and were not

motivated by any improper motive.           Consequently, if the commission

is the final decision-maker, then the causal connection between



      3
            Frazier opined, over a dissent and before Astoria was decided, that
federal preclusion law, if applicable, would not prevent a plaintiff’s filing a
§ 1983 claim following state administrative proceedings. 

873 F.2d at 824-25

.
But the court specifically declined to decide whether federal or state claim
preclusion applied. Since Frazier and Astoria, the circuits, curiously in light
of Astoria’s unequivocal statement, have split over whether to follow state claim
preclusion principles in regard to § 1983 claims that are filed in federal court
after unreviewed state administrative proceedings. Compare Miller v. County of
Santa Cruz, 

39 F.3d 1030

, 1037-38 and n.7 (9th Cir. 1994) (state claim preclusion
rules generally apply), with Edmundson v. Borough of Kennett Square, 

4 F.3d 186

(3d Cir. 1993) (no preclusion for non-attorney state administrative tribunals),
and Dionne v. Mayor and City Council of Baltimore, 

40 F.3d 677, 682-84

 (3d Cir.
1994) (federal claim preclusion governs).
            To her credit, the magistrate judge applied a state law claim
preclusion rule. The applicability of the state law of issue preclusion, also
applied, is not in doubt. See Univ. of Tennessee v. 

Elliott, supra;

 United
States v. State of Texas, 

158 F.3d 209, 304

 (5th Cir. 1998).

                                       11
Hitt’s    constitutionally      protected       activity    and    the     adverse

employment action is broken, and Connell may not be held liable.

See Mato v. Baldauf, 

267 F.3d 444, 450

 (5th Cir. 2001); Long v.

Eastfield College, 

88 F.3d 300, 307

 (5th Cir. 1996).

            In most “causal connection” cases, the determinative

question is whether the discriminatory or retaliatory motive of a

subordinate employee may be imputed to the titular decision-maker.

Id.

 A decision-maker may serve as the conduit of the subordinate’s

improper motive, for example, if he merely “rubber-stamps” the

recommendation of a subordinate.             This case, however, poses the

logically    antecedent      question    how    to   identify      the    official

decision-maker.

            The   official    or   formal    decision-maker       may     often   be

identified by a rule, e.g., an employee handbook or a company

organizational     chart.       For   public     entity    employers,       it    is

appropriate to look to the statutory authority of the official or

board that is alleged to have made the decision.                  Unlike a Texas

school board, for example,4 a county civil service commission does

not have express statutory responsibility to act as the final

decision-maker with respect to individual employment decisions.

The   relevant    statute    requires    only    that     each    civil    service



      4
            See TEX. EDUC. CODE § 21.211 (authorizing school boards to “terminate
a term contract and discharge a teacher at any time for . . . good cause as
determined by the board”).

                                        12
commission   “adopt,    publish,   and      enforce   rules”   regarding   the

selection of county employees; promotions, seniority, and tenure;

layoffs and dismissals; disciplinary actions; grievance procedures;

and similar matters.        TEX. LOCAL GOVT. CODE § 158.009(a).      But the

statute imposes no superintending responsibility over individual

employment decisions.       While it is conceivable that a commission

could promulgate a rule that no employment decision becomes final

until approved by the commission, no such rule is present here.

          Under its governing rules, the commission is authorized

to review and approve, reverse or modify an adverse employment

decision if an employee elects to appeal it.                   But the mere

authority to review an employment decision is not decisive.                The

commission became involved as an adjudicative tribunal after Hitt

chose to appeal his notice of termination.            Its task was to review

Constable Connell’s decision for conformity with applicable law and

regulations,   not     to   initiate    Connell’s     action   or   generally

superintend Connell’s employment practices.

          In light of these procedures, Connell’s reliance on the

Eleventh Circuit’s decision in Stimpson v. City of Tuscaloosa, 

186 F.3d 1328

 (11th Cir. 1999), is misplaced.                In that Title VII

retaliation case, Stimpson, a police officer, alleged that the City

of Tuscaloosa was motivated unlawfully when it fired her.                  The

Eleventh Circuit emphasized three times in its brief opinion that

Alabama law unequivocally deprives the city of power to discharge

                                       13
a police officer and that the authority to terminate employment

rests   solely     with    a    statutorily-created       civil    service      board.

Id. at 1330, 1331, 1332

.             Stimpson thus held that the City of

Tuscaloosa could not be liable for retaliation because the civil

service board was, as a matter of law, the actual decision-maker,

and there was no evidence that the board was a mere conduit for the

city’s supposed discriminatory motive.

            Just      as   clearly,    the       Bexar    County    Civil    Service

Commission did not assume final decisionmaking authority.                          The

commission did not finalize a decision that Constable Connell had

merely recommended or proposed.                  Although the commission did

conduct its own review of Hitt’s termination, it did so in a quasi-

judicial capacity.

                 C.    Qualified Immunity and Mt. Healthy

            In the third issue raised on appeal, Constable Connell

seeks to avail himself of the principle that a public employer may

escape liability by proving that it would have taken the same

adverse employment action “even in the absence of the protected

conduct.”    Gerhart       v.    Hayes,    

217 F.3d 320, 321

   (5th     Cir.

2000)(citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 

429 U.S. 274, 287

, 

97 S.Ct. 568

, 

50 L.Ed.2d 471

 (1977)).                         Connell

contends that he is entitled to qualified immunity because an

objectively reasonable officer would have believed that he could



                                          14
lawfully terminate Hitt’s employment -- notwithstanding Hitt’s

involvement with the union -- because of the bomb threat against

Deputy North and Chief Deputy Horn. Cf. Gonzales v. Dallas County,

Texas, 

249 F.3d 406, 412

 (5th Cir. 2001).

            Connell fails to apprehend the significance of the jury

finding that he fired Hitt because of Hitt’s union membership and

not because of the bomb threat.             The jury was instructed on

Connell’s Mt. Healthy defense: In order to find a violation of

Hitt’s rights, they had to decide, inter alia,

      whether the defendant has shown by a preponderance of the
      evidence that the action he took against the plaintiff
      was for other reasons, regardless of whether or not the
      plaintiff exercised his protected association activity.
      If you find that the defendant would have taken the same
      action against the plaintiff for reasons apart from the
      association activity, then your verdict should be for the
      defendant.

The jury verdict rejects Connell’s explanation of the employment

decision.     Their factual finding is supported in the record.

See Boddie v. City of Columbus, Miss., 

989 F.2d 745, 748

 (5th Cir.

1993). No reasonable officer could have concluded that firing Hitt

because of his union affiliation was legally permissible.                  

Id.

Further, because the jury discredited Connell’s explanation, the

basis for his qualified immunity contention was vitiated.5


      5
            The jury verdict distinguishes this case from Gonzales v. Dallas
County, 

249 F.3d 406

 (5th Cir. 2001), in which summary judgment was granted to
a constable who fired one of his deputies at least in part because of the
deputy’s undisputed use of excessive force. Here, the jury had to determine,
whether the disputed bomb threat was a credible threat and an actual motivating

                                      15
                               D.    Evidentiary Rulings

              Connell    contends        that    the    district    court    committed

reversible error in admitting into evidence (1) testimony regarding

disciplinary actions that Connell took against Mullins and other

deputies and (2) the audiotape recordings of several meetings and

conversations involving Connell.                 We review the district court’s

decision to admit this evidence for an abuse of discretion.                     United

States v. Vega, 

22 F.3d 789

, 803 (5th Cir. 2000).

              Other deputies, including Ray Mullins, were allowed to

testify   that    they     were       discharged       or   otherwise    discriminated

against because of their participation in the union.                           Connell

contends that admitting this evidence violated Federal Rules of

Evidence 404 and 403, inasmuch as the other deputies’ testimony was

used    “to    show     that        Connell’s    actions     with   other    employees

supposedly proves [sic] his conduct in Hitt’s case is improper”;

and, even assuming this testimony was admissible, the danger of

unfair prejudice outweighed its probative value.                        This testimony

was admissible, however, as proof of Connell’s motive in firing

Hitt.   FED. R. EVID. 404(b).           Moreover, the testimony was admissible

to impeach Connell’s statements on multiple occasions that he was

“a union man” and that he had no animus against TCOPS or any other




factor in Hitt’s firing, and they found against Connell.

                                            16
police union.     The district court did not abuse its discretion in

admitting this evidence.

              Connell’s second argument is that the district court

erred in admitting two audiotapes (as well as transcripts of those

tapes) that were not properly authenticated.            We disagree.     Both

deputies who recorded Connell’s statements testified about how they

made    the    recordings,    and    Connell   does    not    dispute   their

identification of his voice on the tapes. Connell has not produced

sufficient evidence to cast doubt on the reliability of the tapes

or the transcripts prepared from them.

                         E.   Compensatory Damages

              Connell   challenges   the   jury’s   award    of   $300,000   in

compensatory damages as excessive because Hitt presented little or

no evidence of his nonpecuniary damages.            We agree.

              The verdict form did not separate pecuniary and non-

pecuniary damages.       However, during his closing argument, Hitt’s

attorney argued that lost earnings, both past and future, amounted

to $76,000.      Hitt’s attorney then explained the jury question on

damages:

       Interrogatory Number 3 is the money issue. . . I think
       you start there with the basic lost income of [$]76,000,
       and then whatever you ladies feel the loss of retirement,
       loss of job satisfaction, worry about no job,
       embarrassment within the law enforcement field. What’s
       all that worth in addition to the [$]76,000? I’ll leave
       that to you. But it should be a reasonably large sum of
       money.


                                      17
Based on this representation to the jury, there is no plausible

alternative    but   that    the   jury   awarded    Hitt   $224,000   in   non-

pecuniary damages for mental anguish, loss of job satisfaction and

prestige, and embarrassment.

            The question, therefore, is whether Hitt’s evidence of

non-pecuniary damages is legally sufficient to warrant an award of

$224,000.     Our review of non-pecuniary damages is for abuse of

discretion. Migis v. Pearle Vision, Inc., 

135 F.3d 1041, 1046

 (5th

Cir. 1998).

            This court has articulated in detail the kind of evidence

needed to support compensatory damages for mental anguish or

emotional distress.     See, e.g., Vadie v. Mississippi State Univ.,

218 F.3d 365, 376

 (5th Cir. 2000); Brady v. Fort Bend County, 

145 F.3d 691, 718-20

 (5th Cir. 1998); Patterson v. P.H.P. Healthcare

Corp., 

90 F.3d 927, 940

 (5th Cir. 1996).            The same principles would

logically apply to other nonpecuniary types of damages such as

those urged by Hitt.        For starters, we have emphasized that “hurt

feelings, anger and frustration are part of life,” and are not the

types of emotional harm that could support an award of damages.

Patterson, 

90 F.3d at 940

.           The plaintiff must instead present

specific evidence of emotional damage: “[T]here must be a ‘specific

discernable injury to the claimant’s emotional state,’ proven with

evidence regarding the ‘nature and extent’ of the harm.”                Brady,

145 F.3d at 718

 (quoting Patterson, 

90 F.3d at 938, 940

).              To meet

                                      18
this burden, a plaintiff is not absolutely required to submit

corroborating testimony (from a spouse or family member, for

example) or medical or psychological evidence.         Brady, 

145 F.3d at 718, 720

.      The plaintiff’s own testimony, standing alone, may be

sufficient to prove mental damages but only if the testimony is

“particularized and extensive” enough to meet the specificity

requirement discussed above: “‘Neither conclusory statements that

the plaintiff suffered emotional distress nor the mere fact that a

constitutional violation occurred supports an award of compensatory

damages.’”     Brady, 145 F.3f at 720, 718 (quoting Price v. City of

Charlotte, 

93 F.3d 1241, 1254

 (4th Cir. 1996)).

              Hitt did not satisfy these standards.        The record is

devoid   of    any   corroborating   evidence   with   respect   to   Hitt’s

emotional distress or other elements of nonpecuniary damage. There

is no medical evidence, no testimony from family members or co-

workers, no evidence of physical manifestations of distress.             In

sum, all the evidence that the jury heard was Hitt’s testimony that

his discharge

     was emotionally trying. I was depressed. I was out of
     work. I was embarrassed because it never should have
     happened.   And it made me very defensive in terms of
     applying for jobs and having to go through and explain,
     if it got to that point what had gone on and why I was
     out looking for work.

          I’ve been around law enforcement in Bexar County for
     a number of years. And people ask you, hey, what’s going
     on. You know, how come you got fired. It’s kind of a


                                     19
     blight on your        reputation,          and    it    does    affect    you
     emotionally.

At that point, Hitt’s attorney turned to the question of lost

income.     Aside from a few other scattered statements, the quoted

testimony     is   all   the    evidence        of    mental      anguish     that   Hitt

presented.

              Our conclusion in Brady applies equally well to this

case:   The     plaintiff’s         testimony    is    “vague,       conclusory,      and

uncorroborated . . . . [and] cannot legally support mental anguish

damages.”     Brady, 

145 F.3d at 720

.           The district court thus abused

its discretion in entering judgment for Hitt in the amount of

$300,000.     The evidence presented at trial supports the $76,000 in

damages for lost income but not the remaining $224,000 in non-

pecuniary damages.

                               F.     Attorney’s fees

              In a consolidated appeal, Connell challenges the district

court’s decision to award attorney’s fees and expenses in the

amount of $88,487.94 to Hitt’s attorney.                     See 

42 U.S.C. § 1988

.

Appellate review of this award would have been hampered in any

event by appellant’s apparent failure to include the district court

decision      in   the   appellate       record.            But     because    we    have

substantially reduced the judgment, it is prudent to remand the fee

award for reconsideration.            We express no opinion on the award.




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                             III.    CONCLUSION

          In   Cause   No.    01-50117,     we   AFFIRM    the   judgment   of

liability,   but   VACATE    the    award   of   damages   and   REMAND   with

Instructions to enter judgment for $76,000. In Cause No. 01-51010,

the district court’s judgment awarding attorney’s fees is VACATED

and REMANDED for reconsideration in light of this opinion.

          AFFIRMED in part, VACATED in part, and REMANDED.




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CARL E. STEWART, Circuit Judge, concurring in part and dissenting in part.



        I concur with the majority’s resolution of the liability issues and t he affirmance of Hitt’s

$76,000 lost wages award in cause No. 01-50117. I also agree that the jury’s mental anguish award

of $224,000 is excessive because Hitt’s evidence on this claim was minimal. However, I do not

believe that the solution is to zero out the award completely. See Vadie v. Mississippi, 

218 F.3d 365, 375-79

 (5th Cir. 2000) (finding an award of $300,000 in mental anguish damages under Title VII was

excessive where the only evidence supporting a finding of emotional injury was the plaintiff's own

testimony, and concluding that because the evidence presented supported an award no greater than

$10,000, either remittitur or a new trial was required).

        I respectfully dissent from the majority view that Hitt failed to present sufficient evidence to

support some award for mental anguish. In Oden v. Oktibbeha County, Mississippi, we determined

that there was sufficient evidence to support a jury award of $20,000 in compensatory damages for

mental anguish when the only evidence submitted by Deputy Sheriff Oden was his own testimony that

as a result of the defendants’ discrimination, he experienced stress, sleeplessness, betrayal, and shame.

246 F.3d 458, 470-71

 (5th Cir. 2001); See also Migis v. Pearle Vision, Inc., 

135 F.3d 1041, 1046

(5th Cir. 1998) (concluding that the evidence, which consisted solely of Migis’ testimony, was

sufficiently detailed to preclude this court from holding that the district court abused its discretion

in awarding $5,000 in compensatory damages for mental anguish); Williams v. Trader Publ'g Co., 

218 F.3d 481

 (5th Cir. 2000) (upholding an award of $100,000 in compensatory damages for emotional

distress, premised solely on Williams’ testimony regarding her "severe emotional distress," "sleep


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loss," "severe loss of weight," and "beginning smoking"); Forsyth v. City of Dallas, Tex., 

91 F.3d 769, 775

 (5th Cir. 1996) (upholding an emotional distress award of $100,000 that was premised on

the plaintiff's testimony describing "depression, weight loss, intestinal troubles, and marital

problems").

       In the instant case, Deputy Constable Hitt testified that his termination

       was emotionally trying. I was depressed. I was out of work. I was embarrassed
       because it never should have happened. And it made me very defensive in terms of
       applying for jobs and having to go through and explain, if it got to that point what had
       gone on and why I was out looking for work. I’ve been around law enforcement in
       Bexar County for a number of years. And people ask you, hey, what’s going on.
       You know, how come you got fired. It’s kind of a blight on your reputation, and it
       does affect you emotionally.

Hitt’s claim for some compensation is supported by this court’s holdings in Forsyth, Migis, Oden,

Vadie, and Williams. In these cases, as in the instant case, there was no corroborating evidence, only

the testimony of the plaintiffs. In addition, Hitt’s testimony is arguably comparable to that of Deputy

Sheriff Oden, who recovered a $20,000 award from a jury based solely on his testimony.

       Along the spectrum of awards that have previously been upheld by this court, it is debatable

what specific amount of mental anguish damages Hitt is entitled to. However, it is clear that he is

entitled to an award that is greater than zero. Thus, for the foregoing reasons, I would vacate the

jury’s mental anguish award of $224,000 and either remit the award down to $20,000, or remand to

the district court for a new trial on damages. In cause No. 01-51010, I concur in the remand of the

attorney’s fees award for reconsideration in light of the overall reduction of the jury award.




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