UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-10601

Summary Calendar

RUBEN GLORIA,

Plaintiff-Appellant,

VERSUS

VALLEY GRAIN PRODUCTS, INC.,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Texas

January 17, 1996

Before WIENER, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:

I. FACTS and PROCEDURAL HISTORY

Ruben Gloria ("Gloria") filed suit against Valley Grain

Products, Inc. ("Valley Grain"), alleging discrimination under

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §

2000e. A jury found for Gloria and awarded backpay in the amount

of $33,000; however, the district court granted Valley Grain's

motion for judgment as a matter of law. On appeal, this court

reversed the district court's judgment as a matter of law and

remanded "for further proceedings in accordance with the opinion of
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this court." Gloria v. Valley Grain Prod., Inc., (5th Cir. May 8,

1995). 

On remand, the district court entered judgment for the $33,000

in backpay found by the jury, $21,085 in attorneys' fees, and postjudgment interest at the rate of 5.88% per annum. Valley Grain

tendered a check in response to the judgment in the amount of

$54,145.95. Gloria accepted the check without objection.

Gloria now appeals the district court's calculation of

damages. Specifically, Gloria asserts that he is entitled to (1)

backpay from the date of trial, February 24, 1994, through the date

of final judgment entered after the first appeal, June 2, 1995; (2)

frontpay in lieu of reinstatement; and (3) prejudgment interest,

either from the date of his unlawful termination or from the date

of trial to the date of the final judgment. Valley Grain counters

these assertions on the merits and also argues that by accepting

the check without objection, Gloria is now precluded from seeking

additional damages.

II. ANALYSIS

1. Preclusion from Seeking Additional Damages:

Acceptance of payment of an unsatisfactory judgment can amount

to an accord and satisfaction precluding an appeal where

circumstances indicate an intention to finally compromise and

settle a disputed claim. United States v. Houghan, 364 U.S. 310,

312, 81 S. Ct. 13, 15-16 (1960). Valley Grain asserts that its

check was cashed without objection or without any indication that

Gloria was dissatisfied with the award or intended to appeal the
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court's judgment. Gloria counters that the check was delivered

without any form of settlement or release being signed or presented

to Gloria, and that the check was accepted because the issues in

this appeal do not involve any part of the amount paid. 

"It is a generally accepted rule of law that where a judgment

is appealed on the ground that the damages awarded are inadequate,

acceptance of payment of the amount of the unsatisfactory judgment

does not, standing alone, amount to an accord and satisfaction of

the entire claim." Houghan, 81 S. Ct. at 16. Gloria is foreclosed

from appealing the damages award "only if the parties mutually

intended a final settlement of all the claims in dispute and a

termination of the litigation." McGowen v. King, 616 F.2d 745, 746

(5th Cir. 1980); see Gadsden v. Fripp, 330 F.2d 545, 548 (4th Cir.

1964) (for an appeal to be foreclosed, there must be a "mutual

manifestation of an intention to bring the litigation to a definite

conclusion upon a basis acceptable to all parties . . . not the

bare fact of payment of the judgment."). In the present case,

there was no manifestation of Gloria's intent to bring the

litigation to a definite conclusion. Therefore, because there was

no such mutual intent, an accord and satisfaction of all claims was

not reached and Gloria's appeal is not precluded.

2. Backpay through the Date of Final Judgment and Frontpay:

The district court awarded backpay for the amount requested at

trial, as determined by the jury. However, following the jury

verdict, the judgment did not become final until after appeal, 15

months later. Gloria asserts that he is entitled to backpay from
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the date of trial until the award was actually entered on remand.

Additionally, Gloria argues that he is entitled to frontpay for

approximately 30 months in order to make him "whole" in accordance

with Title VII objectives.

Because Title VII, prior to its amendment in 1991, afforded

only equitable relief, a complaining party was not as a matter of

right entitled to a trial by jury. Blum v. Gulf Oil Corp., 597

F.2d 936, 938 (5th Cir. 1979). However, the parties in this case

consented to a trial by jury. Therefore, the verdict of the jury

has the same effect as if the trial by jury had been as a matter of

right. Fed. R. Civ. P. 39(c). 

The jury was asked to determine Gloria's "lost wages and

employment benefits in the past" (between the date of discharge and

the date of trial). The jury determined that $33,000 would fairly

compensate Gloria for this time period. Any damages allegedly

incurred after the date of trial were considered in a separate

question when the jury was asked to determine Gloria's "lost wages

and employment benefits reasonably probable to be lost in the

future." The jury answered this question "none." The verdict of

the jury is binding, subject to being set aside only under the

verdict deferential standard of review. Boeing v. Shipman, 411

F.2d 365, 374 (5th Cir. 1969) (en banc). Gloria has failed to show

that there is a lack of substantial evidence to support the jury's

answer to this second question. Accordingly, Gloria is not

entitled to any damages calculated past the day of trial.
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3. Prejudgment Interest:

This court has stated that interest is an element that

"should" be included in backpay. Pettway v. American Cast Iron

Pipe Co., 494 F.2d 211, 263 (5th Cir. 1974), cert. denied, 439

U.S.. 1115 (1979), cert. denied, 467 U.S. 1243 (1984), and cert.

dism'd, 467 U.S. 1247 (1984); see Sellers v. Delgado Community

College, 839 F.2d 1132, 1140 (5th Cir. 1988). Furthermore, the

goal of Title VII is to restore an employee who has been

discriminated against to his or her rightful place by making the

employee financially whole again. Deloach v. Delchamps, Inc., 897

F.2d 815, 822 (5th Cir. 1990). The time value of money causes an

award of backpay to be worth less if prejudgment interest is not

included. Gloria was discharged in July 1991, and the trial was

not held until February 1994. The numerous steps necessary to

prove discrimination in employment regretfully take an extended

period of time. The employee should not be punished for this delay

if, after the legal process is completed, discrimination is found

to have occurred. This rationale leads us to conclude, as did the

Pettway court, that prejudgment interest on backpay awards should

be granted.

However, it is settled that the decision to award prejudgment

interest on a backpay award in Title VII cases rests within the

sound discretion of the district court. Hadley v. Vam PTS, 44 F.3d

372, 376 (5th Cir. 1995); Sellers, 839 F.2d at 1140; Bunch v.

Bullard, 795 F.2d 384, 399 (5th Cir. 1986). Gloria's only argument

to establish an abuse of discretion by the district court is that
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it ignores the "make whole" policies of Title VII. This contention

could be raised in every Title VII case where backpay is awarded.

A general rule that prejudgment interest on every backpay award

must be granted would obliterate the discretion of the district

court. We are unable to simply ignore the recognized discretion of

the district court in this area. 

Similarly, Gloria's rationale would result in a blanket rule

requiring prejudgment interest, and this court has recently

observed that there is no per se rule that requires prejudgment

interest in every award of backpay. Hadley, 44 F.3d at 376.

Therefore, while we agree that prejudgment interest "should"

normally be included, it was not an abuse of discretion for the

district court to decline to do so here.

The judgment of the district court is therefore AFFIRMED.