IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 99-10753

 

JOEL F. ARNOLD; ET AL.,

Plaintiffs,

JOEL F. ARNOLD; ALLEN MCDANIEL,

Plaintiffs-Appellants,

v.

UNITED STATES DEPARTMENT OF THE INTERIOR,

Defendant-Appellee.

_______________________________

Appeal from the United States District Court

for the Northern District of Texas

_______________________________

May 25, 2000

Before WIENER, BENAVIDES, and PARKER, Circuit Judges.

BENAVIDES, Circuit Judge:

Appellants Joel Arnold (“Arnold”) and Allen McDaniel

(“McDaniel”) appeal the district court’s ruling as a matter of

law that neither of them was entitled to compensatory damages on

their claims for gender discrimination brought pursuant to 42

U.S.C. § 2000e-5. They also complain that the trial court erred

when it granted the United States Department of the Interior’s

(“DOI”) motion for summary judgment on their retaliation claim. 

We affirm.
2

I. Factual and Procedural Background

Arnold and McDaniel, along with Bobby Maxwell (“Maxwell”),

all worked in the Dallas Compliance Division of the Mineral

Management Service (“MMS”), a division of the DOI. Each applied

for a GS-14 position as Supervisory Auditor in the Oklahoma City

office, and each was placed on the “best qualified list.” On the

basis of the numerical assessments of the candidates on the “best

qualified” list (which numbers themselves had been derived from

objective criteria), Gary Johnson (“Johnson”), the Chief of the

Dallas Compliance Division of the MMS, interviewed Pam Reiger

(“Reiger”) and Maxwell, who had the highest and second-highest

scores respectively. On December 30, 1994, Johnson hired Reiger,

who was an Asian-American woman.

Arnold, Maxwell, and McDaniel, all white men over the age of

forty, filed administrative complaints on February 2, 1995, March

7, 1995, and March 8, 1995, respectively. They each alleged that

race, gender, and age discrimination prevented their being hired

for the Supervisory Auditor position. After a hearing on April

29-30, 1996, the administrative judge issued an opinion on June

10, 1996 concluding that Arnold, Maxwell, and McDaniel had

presented direct evidence of gender discrimination: to wit,

Johnson had marching orders to hire a woman.

By letter dated August 14, 1996, the MMS announced its final

agency decision. It adopted the administrative judge’s finding
1

Counsel for the DOI admitted at oral argument that Johnson

considered only Arnold, McDaniel, and Maxwell in selecting Reiger’s

replacement.

3

with respect to gender discrimination, but rejected its holding

on the race and age discrimination claims, deciding that the

evidence was insufficient. The MMS determined that Arnold,

Maxwell, and McDaniel were entitled to compete in an unbiased

selection process and resolved to reconduct the job search. 

Arnold, McDaniel, and Maxwell filed suit on November 13,

1996. Sometime thereafter, Reiger requested and received a

transfer. Johnson selected Maxwell to replace Reiger.1 Johnson

then penned a justification memorandum, which Jim Shaw (“Shaw”),

the Associate Director for Royalty Management, approved. Despite

his promotion, Maxwell remained a plaintiff in the current suit.

Subsequent to Maxwell’s promotion, two of the four

Supervisory Auditors in the Dallas Compliance Division of the MMS

retired. After each retirement, Johnson elected to eliminate the

position, as opposed to hiring a successor. Johnson’s decision

in this regard was consistent with agency-wide down-sizing and

streamlining, and Johnson confirmed with Lucy Querques-Dennet,

Shaw’s replacement, that realignment in this manner was wholly

within his discretion. Johnson also obtained the unanimous

approval of the remaining Supervisory Auditors (including

Maxwell) when he decided to reduce the total number of

Supervisory Auditors.
2

The jury had actually awarded Maxwell $450,000, but the district

court capped that amount pursuant to Title VII’s limitations on damages.

4

Convinced that this realignment was actually a form of

retaliation against them, Arnold and McDaniel amended their

complaint to state a claim for retaliation. The trial court

granted summary judgment to the DOI on the retaliation claim on

July 26, 1997. And at a pretrial hearing on April 14, 1999, the

district court determined that neither Arnold nor McDaniel could

present evidence at trial supporting their claim for compensatory

damages because Maxwell’s promotion precluded both Arnold and

McDaniel from proving that they would have netted the job “but

for” the discrimination. After a trial ending on April 23, 1999,

the jury found in favor of Arnold, McDaniel, and Maxwell on their

race and gender discrimination claims and awarded Maxwell

$300,000 in compensatory damages.2 The jury specifically

rejected the DOI’s defense that it would have failed to hire

Arnold and McDaniel even if gender had not been a consideration. 

The district court awarded attorneys’ fees and costs to the

plaintiffs.

Arnold and McDaniel, though not Maxwell, timely filed this

appeal.

II. Standard of Review

Both the decision that, as a matter of law, Arnold and

McDaniel could not prove that they would have obtained the job

“but for” the discrimination and the grant of summary judgment on
5

the retaliation claim are issues of law to which we apply de novo

review. See Hall v. Thomas, 190 F.3d 693, 695 (5th Cir. 1999)

(summary judgment); Randel v. United States Dep’t of the Navy,

157 F.3d 392, 395 (5th Cir. 1998) (“Questions of law we review de

novo.”).

The district court should grant summary judgment where “the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter of law.” 

Fed. R. Civ. Proc. 56(c); see also Christopher Village, LP v.

Retsinas, 190 F.3d 310, 314 (5th Cir. 1999). “An issue is

genuine if the evidence is sufficient for a reasonable jury to

return a verdict for the nonmoving party.” Owsley v. San Antonio

Indep. Sch. Dist., 187 F.3d 521, 523 (5th Cir. 1999), petition

for cert. filed (Jan. 18, 2000) (No. 99-1205). “Although we

consider the evidence and all reasonable inferences to be drawn

therefrom in the light most favorable to the nonmovant, the

nonmoving party may not rest on the mere allegations or denials

of its pleadings, but must respond by setting forth specific

facts indicating a genuine issue for trial.” Rushing v. Kansas

City S. Ry. Co., 185 F.3d 496, 505 (5th Cir. 1999), petition for

cert. filed (Dec. 28, 1999) (No. 99-1090).

III. Compensatory Damages
3

Arnold and McDaniel also rely on three EEOC agency decisions. See

Miller v. Babbit, 1999 WL 716389 (EEOC); Harris v. Glickman, 1998 WL 897680

(EEOC); Deauzat v. Dalton, 1997 WL 241520 (EEOC). These cases, broadly

speaking, stand for the proposition that, “even if a victim of a

discriminatory selection process is not awarded the position during reselection, he is nonetheless entitled to compensatory damages, if proven, for

having been subjected to a discriminatory selection process in the first

6

Arnold and McDaniel argue that the district court erred when

it forbade them from presenting evidence on their claim for

compensatory damages and refused to submit the same to the jury. 

Specifically, Arnold and McDaniel assert that, because the jury

rejected the DOI’s mixed motive defense, they are therefore

entitled to compensatory damages. 

The DOI retorts that the district court acted properly

because compensatory damages are not available to plaintiffs who

cannot show that discrimination was the “but for” cause of the

failure to hire. The DOI further argues that the jury verdict,

coming as it did on the heels of the district court’s dismissal

of Arnold and McDaniel’s claims for compensatory damages, is a

nullity. 

Title 42 U.S.C. § 1981a(a)(1) states “In an action brought

by a complaining party under . . . [§ 2000e-5] against a

respondent who engaged in unlawful intentional discrimination . .

. prohibited under . . . [§ 2000e-2] . . . , the complaining

party may recover compensatory and punitive damages . . ., in

addition to any relief authorized by . . . [§ 2000e-5(g)].” This

is the language that Arnold and McDaniel claim presumptively

entitles them to compensatory damages.3 They also urge us to
instance.” Miller, 1999 WL 716389, at *4. However, one of the cases permits

an award of compensatory damages only “up until . . . the date on which the AJ

issued her RD finding that Complainant A was the best qualified candidate and

would have been selected for the position absent the agency’s discrimination.” 

Harris, 1998 WL 897680, at *3. In other words, even under the EEOC decisions,

Arnold and McDaniel could not recover compensatory damages past the date on

which Maxwell received the position of Supervisory Auditor.

“An agency’s construction of a statute it is charged with enforcing is

entitled to deference if it is reasonable and not in conflict with the

expressed intent of Congress.” United States v. Riverside Bayview Homes,

Inc., 747 U.S. 121, 131 (1985); Gomez v. Department of the Air Force, 869 F.2d

852, 860 (5th Cir. 1989) (same). To the extent that these EEOC decisions

conflict with § 2000e-5(g)(2)(B)(ii), they are neither binding nor entitled to

deference.

4

Even were Willson persuasive, it is not binding for four reasons. 

First, though Willson was affirmed in part in an unpublished opinion, pursuant

to Local Rule 47.5.3, “[u]npublished opinions issued before January 1, 1996 .

. . . should normally be cited only when the doctrine of res judicata,

collateral estoppel or law of the case is applicable.” None of those

doctrines is relevant here. Second, the unpublished affirmance did not

discuss Willson’s reasoning, but instead merely found the denial of a motion

for new trial to be not plain error. Third, Willson itself is factually

distinguishable, involving, as it appears to, successive denials of an open

job position to female applicants. Finally, as is detailed below, Willson

conflicts with language in De Volld v. Bailar, 568 F.2d 1162 (5th Cir. 1978),

and, under the rule of orderliness, to the extent that a more recent case

contradicts an older case, the newer language has no effect. See Teague v.

City of Flower Mound, Texas, 179 F.3d 377, 383 (5th Cir. 1999). 

7

follow Willson v. Shannon, 857 F. Supp. 34 (S.D. Tx. 1994), aff’d

in part, 77 F.3d 473 (5th Cir. 1995) (unpublished), which, in the

course of denying a motion for a new trial, rejected the argument

that because “only one . . . position had been available for

either Plaintiff to fill, and that only one of the Plaintiffs

could have obtained the position even in the absence of

discrimination, . . . only one Plaintiff should be able to

recover damages[.]” Id. at 35. The court condemned this

argument as it “would allow . . . discriminat[ion] with respect

to any given position with impunity for near perpetuity, once

[the agency] has become liable for discriminating once.” Id.4

However, what Willson does not even mention (indeed Willson
8

cites no law in support of its position), and what the DOI

highlights, is § 2000e-5(g)(2)(B)(ii), which states: “On a claim

in which . . . the respondent demonstrates that [it] would have

taken the same action in the absence of the impermissible

motivating factor, the court . . . . shall not award damages[.]”

This section establishes what is known as “the mixed motive

defense.” The DOI insists that this language absolves it of

liability for compensatory damages to Arnold and McDaniel because

the DOI would not have hired Arnold and McDaniel regardless of

their gender for the simple reason that it promoted Maxwell

instead. The DOI also relies on De Volld v. Bailar, 568 F.2d

1162 (5th Cir. 1978), in which a panel of this circuit stated:

It must be kept in mind that only one person could be

promoted to the position in question. Both MexicanAmerican clerks [Trevino and De Volld] were concededly

treated discriminatorily in that both were passed over

because of their national origin. But the blunt fact

remains that only one of the two if either could

receive the promotion. When the Civil Service

Commission determined that the deserving candidate was

Trevino . . ., it became indisputable that whatever

discrimination [De Volld] suffered because of her

national origin, that discrimination no longer kept her

from the promotion. Put another way, whatever motives

the Commission may have had in choosing between two

people of the same ethnic origin, discrimination cannot

have been among them. . . . In this case the

administrative award to [Trevino] removes any

possibility that [De Volld] can prove that her

situation is due to discrimination against her as a

Mexican-American.

Id. at 1164-65; see also Pollard v. Grinstead, 741 F.2d 73,

75 (4th Cir. 1984) (“Pollard . . . did not . . . prove that the

agency discriminated against him when it [decided] . . . that
9

Webb was better qualified. Pollard was refused promotion, in the

words of the statute, for a ‘reason other than discrimination.’ 

The absence of discrimination when the agency weighed the

qualifications of the two applicants bars relief.” (quoting §

2000e-5(g))); Burks v. City of Philadelphia, 950 F. Supp. 678,

689 (E.D. Pa. 1996) (“[F]ederal appellate courts have followed

the rule that an employee should be denied damages if her

qualifications relative to another candidate were such that he or

she would not have received the position.”).

The statutory language and the case law set forth the rule

plainly enough: among multiple job applicants who fail to secure

the position because of discrimination, only those who can prove

that they would have gotten the position but for the

discrimination can recover compensatory damages. Arnold and

McDaniel are not candidates who, but for the discrimination,

would have received the Supervisory Auditor position for the

following reasons: (1) only one position was open; (2) Johnson

considered only Arnold, McDaniel, and Maxwell in selecting

Reiger’s replacement; and (3) neither Arnold nor McDaniel contend

that a discriminatory motivation tainted Johnson’s selection of

Maxwell. Moreover, it flies in the face of all reason that all

three would have been chosen for only one position. For these

reasons, Arnold and McDaniel cannot show that they would have

garnered the job but for the discrimination and consequently

cannot demonstrate that they are entitled to compensatory
10

damages. Therefore, the district court did not err.

Arnold and McDaniel emphasize the jury’s special finding

that the DOI would have hired them if gender had not been a

motivating factor precludes the DOI’s reliance on the mixed

motive defense. The jury’s special interrogatory, however, is

not determinative of this issue. Whether Arnold and McDaniel

could recover compensatory damages “was a matter of statutory

interpretation . . . properly decided by the court[.]” United

States v. Nolan, 136 F.3d 265, 271 (2d Cir. 1998). Having

correctly determined that § 2000e-5(g)(2)(B)(ii) precluded Arnold

and McDaniel’s entitlement to compensatory damages, the court

definitively disposed of the matter; a subsequent jury

pronouncement on an issue no longer in the case is of no effect. 

We therefore find that the district court did not err in

ruling, as a matter of law, that Arnold and McDaniel could not

recover compensatory damages.

IV. Retaliation

Arnold and McDaniel identify the realignment as a form of

retaliation because it foreclosed promotion opportunities for

them, and it increased their workload. The DOI counters that the

realignment is not an ultimate employment decision, and

therefore, not an adverse action sufficient to state a prima

facie claim for retaliation. Moreover, the DOI urges that no

causal link exists between Arnold and McDaniel’s protected
11

activity and the realignment.

To state a claim for retaliation, a plaintiff must prove

that: (1) he engaged in protected activity pursuant to Title VII;

(2) he suffered an adverse employment action; and (3) a causal

nexus exists between the protected activity and the adverse

employment action. See Messed v. Men, 130 F.3d 130, 140 (5th

Cir. 1997). Assuming arguendo that the realignment can be

properly characterized as an adverse employment action, Arnold

and McDaniel have not established any causal link between their

protected activity and the realignment. Though they argue

vigorously that Johnson flouted agency procedures for conducting

the realignment, Johnson, in fact, had total discretion in making

the adjustment. Even so, Johnson obtained the approval of his

superior and the other Supervisory Auditors before eliminating

the positions. The unexpected retirements of two Supervisory

Auditors—not the protected activity of Arnold and

McDaniel—appears to have prompted the realignment, and Arnold and

McDaniel present no evidence inconsistent with that proposition. 

Therefore, the district court did not err when it granted the DOI

summary judgment on the retaliation claim.

V. Conclusion

Because we find that the plain language of § 2000-

e5(g)(2)(B)(ii) forbids an award of compensatory damages to a job

applicant who, despite unlawful discrimination, still would not
12

have received the job, we hold that the district court did not

err when it ruled as a matter of law that Arnold and McDaniel

were not entitled to compensatory damages.

We further hold that Arnold and McDaniel did not demonstrate

a causal link between their protected activity and the

realignment that foreclosed their opportunities for promotion. 

The district court therefore did not err when it granted the

DOI’s motion for summary judgment on the retaliation claim.

AFFIRMED