UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 99-20179

SHARON M. WILLIAMS,

Plaintiff-Appellee,

VERSUS

TRADER PUBLISHING COMPANY,

Defendant-Appellant.

Appeal from the United States District Court

For the Southern District of Texas

July 24, 2000

Before JONES, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM:

Defendant-Appellant Trader Publishing Company (“Trader”)

appeals from the district court judgment based on a jury verdict in

favor of Plaintiff-Appellee Sharon M. Williams (“Williams”) finding

Williams had been discharged by Trader due to gender discrimination

in violation of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 200 0e, et seq . Trader challenges the jury’s finding of2

gender discrimination and com p ensatory damages, the award and

amount of punitive damages, and the award and amount of attorney’s

fees and interest. For the reasons assigned, we affirm in part and

reverse in part the judgment of the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

Williams was hired by Trader on April 27 t h

, 1989 as a

sales representative. From 1989 through 1995, Williams assumed

multiple positions for Trader, during which time she received

several raises and pe rformance based bonuses. In 1993, Williams

served as acting general manager for the Houston office of Trader.

Alth ough Williams applied for the position of full-time general

manager of the Houston office, in 1994 Trader h ired Ron Haas to

fill the position on a per manent basis. In 1995 Trader fired

Williams and she brought this suit.

Williams contends that Haas treated male employees more

favorably than female employees in the Houston office of Tr ader.

For example, she contends that Haas c riticized female employees’

style of dress and made recommendations to change it during visits

by his supervisor. In addition, Williams contends that Haas acted

friendlier to male employees than female employees. Specifically,

Haas discussed problems with male employees’ work openly and

informally. On the other hand, he confronted female employees with

criticisms of their work in formal conference room meetings. Haas3

disputes that he treated employees differently on the basis of

gender.

Tra der contends that Williams was discharged due to a

pattern of u nacceptable behavior rather than because of gender.

Specifically, Trader contends that Williams impaired office morale

by disparaging fellow employees. For example, Trader contends that

Williams called a co-worker a “bitch” and that she often addressed

Haas, her supervisor, as “Ron, Ron, the leprechaun.” In addition,

Trader contends that Williams circulated rumors about her impending

dismissal that further caused dissension in the Houston office and

falsified an examin ation score of a fellow employee. Trader

contends that it was in response to a pattern of such disruptive

behavior that Williams was dismissed.

In response to Trader’s accusations of “disruptive

behavior”, Will iams introduced evidence of similar behavior by

other employees that had not resulted in summa ry dismissal.

Seve ral former co-workers, both male and female, testified that

they had called the same co-worker a “bitch” without being

terminated. In addition, Williams introduced evidence that a male

employee had discussed rumors of his dismissal and challenged

Haas’s authority, but was not immediately terminated; rather, Haas

confronted the employee and offered him an opportunity to respond

to the allegations. It was only after this employee admitted to

the behavior that he was di smissed. Williams also introduced

Trader’s em ployee manual that stated as a general policy that4

employees should receive an oral warning and then a written

reprimand for disruptive behavior prior t o dismissal -- and that

while male employees were given the benefit of this procedure, she

was not.

Trader argues that the situations were different in that

Williams had developed a pattern of disruptive behavior which

required an immediate discharge in deviation from Trader’s standard

procedures. On cross-examination, however, Haas admitted that

generally the only disruptive behavior severe enough to justify an

immediate termination by Haas rather than by his superior , Sunny

Sonner (who had the ultimate authority to fire employees of

Williams’s level), was drunkenness at work or some other similarly

severe disruption. However, Trader contends that Haas actually did

n ot fire Williams, but that Haas reported Williams’s disruptive

behavior to Sonner and that Sonner (who is a woman) authorized the

discharge. Williams testified that Haas fired her directly without

following Trader’s policy or pr ocedure and without obtaining his

supervisor’s prior approval. Williams further testified that Haas

did not afford her the same opportunity to admit or deny

allegations against her, as Haas had given to an accused male

employee, and that Haas had her escorted out of th e building by

security guards immediately after discharging her.

Williams filed the present suit in October 1996. After

a jury trial she was awarded damages for back pay in the amount of

$106,000, future earnings of $27,160, compensatory damages for pain5

and suffering of $100,000, and punitive damages of $100,000. In

addition, the district court ordered prejudgment interest on back

pay and compensatory damages at a rate of ten percent and postjudgment interest at the rate of 5.407%, as well as attorney’s fees

of $61,479.54. Trader timely filed a notice of appeal.

II. STANDARD OF REVIEW

In Title VII cases, once the plaintiff has established a

prima facie case and the case been decided on the merits, the only

factual review available at the appellate level is whether, taking

all inferences and evidence in the light most favorable to the

verdict, the evidence points so strongly in favor of the defendantappellant that it is entitled to judgment as a matter of law. S ee

Deffenbaugh- Williams v. Wal-Mart Stores, Inc. , 156 F.3d 581, 588

(5 th Cir. 1998), reh’g en banc granted and opinion vacated 169 F.3d

215, opinion reinstated 182 F.3d 333 (5 th Cir. 1999) (“after a case

has been fully tried on the merits, we no longer focus on the

McDonnell Douglas burden-shifting rubric; the inquiry becomes

whe ther the record contains sufficient evidence to support the

jury’s ultimate finding of [gender] discrimination”). Accordingly,

if the evidence is sufficient to uphold a jury verdict under Title

VII, the appellate court should affirm both the verdict and the

award of damages. S ee Smith v. Berry Co.

, 165 F.3 d 390, 394 (5 t h

Cir. 1999).6 III. DISCUSSION

A.

To prove discrimination, a plaintiff may use

circumstantial evidence that she has been treated differently than

similarly situated non-members of the protected class. S ee Polanco

v. City of Austin, Texas

, 78 F.3d 968, 977 (5 th Cir. 1996). Trader

contends that to satisfy the “similarly situated” requirement, the

situations of the non-protected class members must be more than

“similar”, they must be “nearly identical.” S ee Mayberry v. Vought

Aircraft Co.

, 55 F.3d 1086, 1090 (“[t]o establish a prima facie

case in this manner, Mayberry must show that white employees were

treated differently under circumstances ‘nearly identical’ to his”)

(citing Little v. Repu blic Ref. Co. , 924 F.2d 93, 97 (5 t h Cir.

1 991)). In the present case, Trader contends that the

circumstances of the male employees’ treatment introduced by

Williams were not “nearly identical” to Willi ams’s treatment

because (1) there was no evidence that the supervisors knew of the

male employees’ conduct and (2) that the men had not established a

pattern of disruptive behavior as Williams had. In support, Trader

cites a recent decision by this circuit holding that a non-tenure

track professor is not “similarly situated” to a t enure track

professor. S ee Krystek v. University of So. Mississippi

, 164 F.3d

251, 257 (5 th Cir. 1999).7 Although Trader contends on appeal that the evidence

pertaining to these male employees is not admissible because they

were not in situations “nearly identical” to that of Williams,

Trader itself introduced the same evidence to show that it had

fired male employees for disruptive behavior in support of its

motion for summary judgment. Evidence may only be introduced at

the summary judgment phase of a tri al if the evidence would be

admissible at trial. S ee F ED .R.C IV .P. 56(e) (“Supporting and

opposing affidavits

. . . shall set forth such facts as would be

admiss ible in evidence). Thus, by introducing the evidence

relating to these male employees, Trader took the position before

the district court that the evidence would be relevant and

admissible at trial to show its parity of treatment of employees of

both genders.

After introducing this evidence in support of its motion

for summary judgment, Trader has argued in its motion in limine and

on appe al that the evidence cannot be introduced properly by

Williams to show that the similarly situated male employees were

afforded pre-termination reprimands or hearings that she was denied

as proof of gender discrimination. However, because Trader offered

the same comparables for purposes of its motion for summary

judgment, it cannot persuasively argue that those employees were

not similarly situated to Williams. The trial court did not err in

admitting the evidence.1 In general, evidentiary decisions of the district court are reviewed for

abuse of discretion only. S ee Stokes v. Georgia-Pacific Corp.

, 894 F.2d 764, 767

(5 th Cir. 1990).

8 B.

Trader contends that Williams failed to establish a prima

facie case of gender discrimination under Title VII because she

could not prove that she was replaced by a member of a nonprotected class. However, it is well settled that, although

replacement with a non-member of the protected class is evidence of

discriminatory intent, it is not essential to the establishment of

a prima facie case under Title VII. See Hornsby v. Conoco, Inc.

,

777 F.2d 243, 246 (5 th Cir. 1985) (“This court has previously held

that the single fact that a plaintiff is replaced by someone within

the protected class does not negate t he possibility that the

discharge was motivated for discriminatory reasons”). Accordingly,

that Williams may not have established that she was replaced by a

male employee does not necessarily mean that she failed to

establish her prima facie case.

C.

Trader co ntends that the district court abused its

discr e tion 1 in admitting evidence with respect to Williams’s

general work performance because the sole issue at trial was

whether Williams committed the specific acts for which Trader

contends Williams was dism issed. Trader cites L aMontagne v.

American Convenience Products, Inc.

, 750 F.2d 1405, 1414 (7 th Cir.9

1984) for the proposition that, when an employer has stated

specific reasons for dismissal, evidence of generally satisfactory

work performance in the past does not refute such evidence and thus

its admission for such purpose is reversible error if such evidence

prejudiced the defendant. In L aMontagne

, however, the appellate

court affirmed a judgment notwithstanding the verdict in favor of

the employer and rejected the employee’s argument that the evidence

of satisfactory job performance should be c onsidered as evidence

that the employer’s reason for its employment decisio n was a

pretext. S ee id

. at 1414. Thus, the L aMontagne cou rt did not

consider whether the introduction of such evidence would have been

reversible error because that issue was not raised by the

employee’s appeal.

In the p resent case, Williams contends that she

introduced evidence of prior satisfactory job performance not to

rebut Trader’s allegations of specific improper acts, but rather to

establish an element of her prima facie Title VII case, i.e., that

she was qualified for the position at the time she was discharged;

by way of contrast, she used evidence of conduct by similarly

situated male employees to prove that t he proffered nondisc riminatory reason for discharge, the alleged pattern of

disruptive behavior, was a pretex t. Nonetheless, because

Williams’s qualifications for the position were stipulated prior to

the admission of the ev idence, Trader argues that Williams’s job2 This circuit in Forsyth upheld an award of $100,000, the preci se amount

awarded in the present case, based solely on the testimony of the plaintiff. S ee

Forsyth

, 91 F.3d at 774 (“Judgments regarding noneconomic damages are notoriously

variable; we have no basis to reverse the jury’s evaluation.”).

10 performance evidence was irrelevant and should have been excluded.

Assuming without deciding that the trial court may have erred in

admitting the evidence, we conclude that under the circumstances of

t he present case, although the evidence was cumulative and co uld

have been excluded, its admission was not sufficiently prejudicial

to amount to reversible error.

D.

Trader contends that compensatory damages awarded by the

jury for emotional distress were not supported by the evidence

because Williams’s testimony was the only evidence that tended to

show these injuries. It is true that compensatory damages for

emotional dis tress may only be awarded when specific evidence of

actual harm is introduced. See Farpella-Crosby v. Horizon Health

Care

, 97 F.3d 803, 808 (5 th Cir. 1996) (citing Carey v. Piphus

, 435

U.S. 247 (1978)). This circuit has held, however, that the

testimony of the plaintiff alone may be enough to satisfy this

requirement. S ee Migis v. Pearle Vision, Inc.

, 135 F.3d 1041, 1046

(5 th Cir. 1998); Forsyth v. City of Dallas

, 91 F.3d 769, 774 (5 th

Cir. 1996). 2 In the present case, Williams testified specifically

as to her severe emotional distress due to the discharge from her

position at Trader resulting in sleep loss, beginning smoking and

a severe loss of weight. Such evidence, although solely the3 Since compensatory damages for emotional distress are necessarily vague and

are generally considered a fact issue for the jury, they may not be amenable to

the kind of calculation disclosure contemplated by Rule 26(a)(1)(C). S ee Burrell

v. Crown Central Petroleum, Inc. , 177 F.R.D. 376, 386 (E.D.Tex. 1997).

11 testimony of the plaintiff, is sufficiently specific to support the

jury’s determination of compensatory damages. See id

.

Trader al so contends that it was reversible error for

Williams to quantify her emotional distress in a dollar amount at

trial without previously disclosing that figure t o Trader as

required under Federal Rules of Civil Procedure 26 and 37. We need

not decide whether assigning a dollar figure to emotional distress

damage without previously disclosing the figure is in contradiction

to Rule 26, however. 3 Williams did not seek to quantify her

damages at trial with a previously undi sclosed dollar value.

Rath er, the following colloquy between Williams and her counsel

occurred on direct examination at trial:

Q: Are you asking this jury to award you damages for your

mental anguish?

A: Yes.

* * *

Q: Is there anyone else who is more qualified to tell you

how upset you felt because you were wrongfully

terminated?

A: No.

Q: In your opinio n, compensating for your mental anguish,

what is a fair dollar figure?

A: I don’t really know.12

Q: How much money are you asking the jury to award you for

your mental anguish?

A: $100,000.

Williams merely testified as to her mental distress and when asked

for a dollar figure that would fairly compensate her, she answered

“I don’t know.” Only in response to the questions of what amount

was she asking for, information of which Trader was apprised before

trial, did Williams mention the figure of $100,000. Accordingly,

we conclude that regardless of the reference to the dollar figure,

Williams’s testimony was sufficient evidence to uphold the jury’s

determination of damages for mental distress and that her reference

to the amount prayed for did not violate Rule 26.

E.

Title VII provides for the imposition of punitive damages

in intentional discrimination cases if an employer acts with malice

or reckless indifference to an employee’s rights. 42 U.S.C. §

19 81a(b)(1). Here, the jury found that Trader discriminated

against Williams with malice or reckless indifference. After

judgment was entered, the Supreme Cou rt revised the standard of

e mployer liability for punitive damages in Kolstad v. America n

Dental Association

,

_____ U.S.

_____, 119 S.Ct. 2118 (1999). As

this court has explained Kolstad , the Supreme Court:

. . . adopts Restatement (Second) of Agency § 217C for

imputing liability for punitive damages; they are

available against a principal only when, inter alia , an

agent employed in a managerial capacity acts in the scope

of employment. 119 S.Ct. at 2126-29. But pursuant to an4 Judge Dennis’s dissent avers that Haas had some limited authority to fire

employees for blatant misconduct like on the job drunkenness. This is irrelevant

to Williams’s situation, and no evidence suggests otherwise.

5 Of course, Haas’s gender-biased recommendation to terminate was within his

scope of authority and is sufficient to support a finding that his discrimination

was a reason for Williams’ termination, thus justifying the company’s liability

for actual damages.

13 exception crafted by the Court to the Restatement rule,

such liability may n ot be imputed when the manager ial

agent’s within the scope actions are “contrary to the

employer’s good faith efforts to comply with Title VII”.

Id . at 2129 (quotation omitted).(footnote omitted)

Deffen baugh-Williams v. Wal-Mart Stores, Inc. , 188 F.3d 278, 282

(5th Cir. 1999).

Trader’s liability for punitive damages depends on

whether Ron Haas was acting as a managerial employee within his

scope of employment when Williams was discriminated against. Based

on Kolstad , and because the discrimination occurred when Williams

was fired, the answer must be no. 4 First, Haas had no authority to

terminate her. In the company hierarchy, the final responsibility

undisputably belonged to Sunny Sonner, since Williams was a

managerial level employee. Sonner fired Williams not just because

Haas recommended it but because of her independent interviews of

Williams and several other witnesses. 5 Although Haas delivered the

message of termination to Williams and may have taken credit for

it, he was not the company’s decisionmaker. Second, there was no

evidence that Sonner’s decision was motivated in any way by gender

bias or that she ratified or approved Haas’s discriminatory

treatment. K olstad

,

____ U.S.

____, 119 S.Ct. at 2128. On the14

contrary, Williams had the opportunity to confide in Sonner about

Haas’s discrimination, but she never did so. As Williams was

herself a managerial employee, it would be incongruous, absent most

unusual circumstances, to infer that she could not or need not

resort to in-house means to address her discrimination complaints.

Under these circumstances, the line supervisor’s misconduct cannot

be imputed to Trader. C ompare Kimbrough v. Loma Linda Dev. Co

. ,

183 F.3d 782, 784-85 (8th Cir. 1999) (punitiv e damage verdict

upheld where general manager turned a blind eye toward or ratified

harassment of lower-level supervisor). Because we reverse the

punitive damage award, it is appropriate to vacate and remand the

attorneys’ fee award for reconsideration by the district court, as

Trader requests.

F.

Trader contends that the district court erred in its

calculation of pre and post-judgment interest. Trader did not

raise this argument before the district court, and therefore we

review the issue solely for plain error. See Marceaux v. Conoco,

Inc. , 124 F.3d 730, 734 (5 th Cir. 1997)

. Reversal for plain error

is appropriate only if in our discretion the er ror is (1) clear,

(2) a ffects substantial rights and, (3) if not corrected, would

“seriously affect the fairness, integrity, or public reputation of

judicial proceedings.” I d

. A district court has discretion to

impose a pre and post-judgment interest award to make a plaintiff6 S ee, e.g., Conway v. Electro Switch Corp.

, 825 F.2d 593, 600 (5 th Cir.

1987).

15 whole. See, e.g., Sellers v. Delgado Community College , 839 F.2d

1132, 1140 (5 th Cir. 1988). This court previously has approved the

imposition of the federal rate of interest in Title VII cases as

mak ing a plaintiff whole, but has not held that only the federal

rate of interest is appropriate for this purpose. 6 Considering the

total circumstances of this case, we conc lude that the district

court’s imposition of a somewhat higher rate of i nterest

(apparently based on the state interest rate), even if error, was

not plain error affecting the fairness, integrity, or public

reputation of judicial proceedings.

Trader also contends that the a ward of attorney’s fees

should be reduced if the judgment is reversed or if the amount of

damages is reduced. An award of attorney’s fees calculated by the

“lodestar” method which is well less than t he amount of

compensatory damages awarded by the jury is not an abuse of

discretion. S ee Hadley v. VAM PTS

, 44 F.3d 372, 375-76 (5 th Cir.

1995). Nevertheless, although we have affirmed the award of

compensatory damages, punitive damages made up about 40% of the

overall judgment, and the district court may choose to revisit the

amount of attorneys’ fees in light of Williams’s revised level of

success and the hours that may have been expended by her attorney

for non-co m pensable punitive damages. Attorneys’ fees should

accordingly be reconsidered on remand.16 16 IV. CONCLUSION

For the reasons assigne d, the judgment, except as to

punitive damages and attorney’s fees, is AFFIRMED

. The award of

punitive damages is REVERSED. The judgment for attorneys’ fees is

VACATED and REMANDED

.

DENNIS, Circuit Judge, concurring in part and dissenting in part:

I concur in sections I, II, and III.A

- III.D of the majority

opinion. However, I must respectfully dissent from section III.E

and the vacating of the attorney’s fee award in section III.F.

Trader contends that the evidence was insufficient to support

an award of punitive damages because Williams did not demonstrate

that Trader’s actions were “reprehensible.” The Supreme Court and

this circuit have recently rejected the theory that a level of

egregiousness is necessary in awarding punitive damages under Title

VII; all that is required to award punitive dama ges is that the

employer act with malice or reckless disregard of an employee’s

protected rights. S ee Kolstad v. American Dental Assoc.

, 119 S.Ct.

2118, 2124 (1999); Deffenbaugh-Williams v. Wal-Mart Stores, Inc.

,

188 F.3d 278, 281-82 (5 th Cir. 1999). Under K olstad

, that Trader’s

actions lacked reprehensibility or egregiousness does not preclude

an award of punitive damages. Trader does not dispute that it was

aware of the rights afforded Williams under Title VII and that

there was sufficient evidence to support the ju ry’s finding that17 17 Haas acte d with sufficient malice or reckless disregard to such

rights to constitute a violation of those rights. Thus, there is

sufficient evidence to support the jury’s award of punitive damages

based on the behavior of Haas.

This is not the end of the punitive damages analysis, however.

The Supreme Court in Kolstad held that liability cannot be imputed

to the employer if (1) the discriminating employee was not a

managerial employee acting in the scope of employment or (2) the

employee acted contrary to the employer’s go od-faith efforts to

comply with Title VII. See Deffenbaugh-Williams , 188 F.3d at 282

(citing Kolstad , 119 S.Ct. at 2129).

I t is somewhat difficult to discern Trader’s argument s with

respect to the first defense; however, it appears that Trader

contends that any discriminatory action by Haas in dismissing

Williams cannot be imputed to Trader because Haas did not have the

managerial authority to dismiss Williams. Trader asserts, and the

majority agrees, that only the Executive Vice President in charge

of Human Resources, Sunny Sonner, had that authority. Trader

furth er contends that Williams makes no allegations that Sonner,

the sole managerial agent for purposes of Kolstad

, acted in a

discriminat ory manner and thus Trader cannot be held liable for

punitive damages. It is true that for liability to be imputed to

an employer, the offending agent must be employed in a managerial

capacity. S ee Ko lstad , 119 S.Ct. at 2128-30. However, as this7 The record flatly contradicts the statement of the majority that

only Sonner had the authority to fire Williams; rather than attempt

to address Haas’s limited authority to fire managerial level

18 18 court said in Deffenbaugh-Williams

, “whether an agent is a manager

is a ‘fact intensive’ inquiry” and that “ultimately, the

. . . jury

wil l have to decide this issue on the particular facts of the

case.” 188 F.3d at 285 (quoting Kolstad

, 119 S.Ct. at 2128)

(quoting L. S CHLUETER & K. R EDDEN

, P UNITIVE D AMAGES § 4 .4(B)(2)(a)).

Thus, the sole issue presented is whether the evidence points so

strongly in favor of Trader that it is entitled to a judgment as a

matter of law on the issue of whether Haas was a managerial agent

of Trader.

In Deffenbaug h-Williams this court found that there was

sufficient evidence to support a factual de termination that an

employee was a “managerial agent” in that he (1) had supervisory

authority over the aggrieved employee, (2) terminated her on his

own authority and ( 3) was in charge of six stores. 188 F.3d at

285. Trader contends that Haas is not a managerial agent, although

he did have supervisory aut hority over Williams, because (1)

Sonner, not Haas, actu ally terminated Williams and (2) Haas was

only in charge of one branch office. Although in general only

Sonner had final authority to terminate employees such as Williams,

it is undisputed that Haas did have limited authority to discharge

emplo yees under his supervision for severe disruptive behavior,

suc h as public drunkenness at work. 7 It is also undisputed thatemployees, the majority chooses to ignore it.

8 Since the jury determined that Haas was a manageri al agent of

Trader, it is irrelevant whether Haas acted outside the scope of

his employment in dismissing Will iams for purposes of imputing

liability to Trader for punitive damages under Title VII. S ee

Defffenbaugh-Williams , 188 F.3d at 286 n.6.

19 19 Haas told Williams that he had terminated her employment, that

Williams did not receive any formal oral or written reprimand, and

t hat Williams was escorted from the Trader office by secur ity

guards upon her termination. This evidence supports Williams’s

contention that it was in actuality Haa s who fired her under his

limited em ergency authority to do so. Drawing all reasonable

inferences in favor of the verdict, the evidence does not point so

strongly in favor of Trader as to justify granting Trader a

judgment as a matter of law on the issue of whether Haas was a

managerial agent of Trader and whether it was Haas who fired

Williams on his own. 8

With respect to the second defense, Trader contends that it

had complied with Title VII in good faith through its “open-door”

policy encouraging aggrieved employees to contact superiors about

possible violations of Title VII. This court addressed a similar

argument in Deffenbaugh-Williams , and held that Wal-Mart’s policy

of encouraging employees to contact higher managers with grievances

does not establish good-faith compliance with Title VII as a matter

of law. 188 F.3d at 286. As in D effenbaugh-Williams

, Trader

presented no evidence of its responses to Williams’s complaints or9 Despite the majority’s implication ot herwise, that Williams

failed to avail herself of the open-door policy does not convert it

into a good fait h Title VII compliance system. Whether it would

have been preferable for Williams to have addressed a complaint of

Haas’s behavior to Sonner is irrelevant to the issue of whether

Trader had established a good faith Title VII compliance system.

20 20 of any sp ecific efforts to comply with Title VII other than the

evidence of its generic open-door policy which Willi ams had not

used. Accordingly, “the evidence of [Trader’s] antidiscrimination

good faith was certainly not so overwhelming that reasonable jurors

could not conclude otherwise.” Deffenbaugh-Williams , 188 F.3d at

286. 9

Trader has not demonstrated that there is insufficient

evidence to support the jury’s determination that Haas acted with

sufficient willfulness to jus t ify punitive damages. Further,

Trader has proved neither that there was insufficient evidence to

support the jury’s determination that Haas was a managerial agent

of Trader n or that it had established a good faith Title VII

compliance system. Accordingly, I respectfully dissent on the

issue o f punitive damages and would affirm the punitive damages

award.

With respect to the reversal of attorney’s fees, I d isagree

that this court has the authority to reverse the district court’s

award of attorney’s fees merely because it has reversed a portion

of the damages award. This court reviews the district court’s

lodestar calc ulation for clear error and any departure from the21 21 lodestar calculation for abuse of discretion. S ee Hadley v. VAM

PTS

, 44 F.3d 372, 375- 7 6 (5 th Cir. 1995). Thus, the district

court’s calculation of the lodestar amount i n the present case,

although it may well have been different had punitive damages not

been awarded, may only be reversed by this court if such

calculation was clearly erroneous.

It is well settled that if a prevailing party under Title VII

is entitled to attorney’s fees for all hours worked on claims,

victorious or not, that “ar ise out of the same course of conduct

and are not easily separated on the bas i s of each claim or

defendant.” C obb v. Mil ler , 818 F.2d 1227, 1235 (5 t h Cir. 1987);

see also Migis v. Pearle Vis ion, Inc. , 135 F.3d 1041 (5 t h Cir.

1998); id

. At 1056 (Barksdale, J., dissenting) (“H owever, I

disagree with the majority's implicit con clusion that, when

calculating the lodestar, the magistrate judge did not clearly err

by including hours spent on unsuccessful claims and un necessary

discovery in pursuit of irrelevant evidence.”). The Supreme Court

has explained this principle as follows:

Where a plaintiff has obtained ex cellent results, his

attorney should recover a fully compensatory fee.

Normally this will encompass all hours reasonably

expended on the litigation, and indeed in some cases of

exceptional success an enhanced award may be justified.

In these circumstances the fee award shoul d not be

reduced simply because the plaintiff failed to prevail on

every contention raised in the lawsuit.

Hensley v. Eckerhart , 461 U.S. 424, 435 (1983).22 22 A pplying Supreme Court and this circuit’s precedent to the

present case, it does not appear that the district court’s lodestar

calculation was clearly erroneous. Williams was victorious on a ll

her claims of liability and, under the majority opinion, has merely

failed to prevail on appeal in seeking punitive damages against

Trader. Trader has not demonstrated that the legal services of

Williams’s counsel related to the largely parasitic claims of

punitive damages were no t totally subsumed within the legal

services necessary to the successful prosecution of the underlying

claims of liability and compensatory damages, let alone show that

such legal services related to punitive damages did not “arise out

of the same course of conduct” or that they are “easily separated

on the basis of each claim or defendant.” C obb

, 818 F.2d at 1235.

That the punitive damages are being reversed on appeal does

not affect this analysis. This circuit has in the past affirmed a

district court’s calculation of attorney’s fees as not an abuse of

discretion despite reversing a punitive damage award that reflected

a significantly greater percentage of the total award than in the

present case. S ee Stevenson v. TRW, Inc.

, 987 F.2d 288 (5 th Cir.

1993) (affirming li ability and compensatory damages of $30,000,

reversing punitive damages of $100,000, and affirming attorney’s

fees of over $20,000). As I thus believe that this panel is

departing from circuit and Supreme Court prece4dent by vacating the

attorney’s fees award without any showing of clear error in the23 23 award by the appellant, but rather as a matter of law merely

because part of the award has been reversed or reduced on appeal,

I must respectfully dissent.