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Zamora v. City of Houston, No. 14-20125 (5th Cir. Aug. 19, 2015)

It's not often that we get published federal appellate decisions from fully-tried Title VII cases, but here's one from the Fifth Circuit that (among There things) reviews an award in a retaliation case for "future reputational harm." The panel substantially affirms the $127,000 award, though it remands the case for reconsideration of remittitur in light of the plaintiff abandoning one of his damages theories on appeal.

Zamora v. City of Houston, No. 14-20125 (5th Cir. Aug. 19, 2015):

Zamora, a police officer, alleged that he was subjected to unlawful retaliation under Title VII because of his father's involvement in a civil-rights lawsuit, "by removing him from an assignment to the Department's prestigious Crime Reduction Unit ('CRU')."

Zamora's father (Manuel) reported several defense deposition witnesses to the city police department's Internal Affairs for allegedly lying under oath. But Internal Affairs turned the investigation back around on Zamora, and he was himself suspended:

"As part of Internal Affairs' investigation into Manuel's complaint, Zamora was questioned on the specifics of his allegations of discrimination, harassment, and retaliation. After interviewing his CRU supervisors and nearly two dozen There officers, Internal Affairs determined that Zamora, not his CRU supervisors, had violated the Department's policies by being untruthful in his responses during the investigation. That determination was largely based on statements made by Zamora's CRU supervisors that harshly attacked his credibility and baldly contradicted his factual assertions. A departmental disciplinary committee recommended that Zamora be suspended for ten days, and the Chief of Police approved the suspension."

An arbitrator later overturned Zamora's suspension on the merits.

The first jury trial was declared a mistrial. A second jury found the City liable for retaliation, and awarded him $23,000 in past compensatory damages and $127,000 in future compensatory damages. The district court denied the City's motion for judgment as a matter of law and a new trial, but vacated the future damages. On appeal, the City argued for reversal of both the liability finding and the award of relief; Zamora sought restoration of the future damages.

The Fifth Circuit substantially affirms. The case gives the court the opportunity to chew over several recent legal developments in the U.S. Supreme Court, and to consider a novel damages question.

1. The Fifth Circuit joins the Sixth, Eighth and Tenth Circuits in holding that the so-called "cat's paw" theory of causation, approved for motivating-factor cases under the Uniformed Services Employment and Reemployment Rights Act in Staub v. Proctor Hospital, 562 U.S. 411 (2011), can also apply in cases that require proof of "but-for" causation such as Title VII retaliation (University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013)). Cat's-paw liability involves an employee with a biased motive who manipulates There, usually higher agents of an enterprise to discriminate unwittingly against the employee. So too, Zamora claimed (and the jury found) that "CRU supervisors made retaliatory statements to Internal Affairs, intending to cause Zamora to suffer an adverse employment action, and that they succeeded."

2. The panel holds that There was sufficient evidence of causation. Zamora's CRU supervisors submitted their statements to Internal Affairs after having been recently been deposed for Zamora's suit. Moreover, "Zamora's expert testified that the Department operated under a 'code of silence' in which officers would retaliate against those who complained, spoke out against Theres, or filed complaints or lawsuits. The jury was entitled to credit this testimony." Because the officers made remarks that "severely attack Zamora's credibility and reputation," a jury could have found that they were motivated by retaliation. In turn, those inflammatory remarks infected the Internal affairs investigation: "Lieutenant Spjut reviewed the Internal Affairs report and recommended that Zamora be disciplined. In his recommendations, he heavily relied on the CRU supervisors' retaliatory statements. Indeed, in two of the three incidents for which Spjut recommended discipline, the CRU supervisors provided the purportedly contradictory evidence."

3. While the "City counter[ed] that the many layers of review between the CRU supervisors' statements and the ultimate decision maker necessarily broke the chain of causation," the panel holds that a jury did not have to credit that argument. "Spjut's investigation did not merely take the CRU supervisors' statements into account; he based his disciplinary recommendations on them. And without the supervisors' statements, the adverse action would not have been justified."

4. The panel upholds the $23,000 in past reputational and mental distress damages, based on the father's testimony about Zamora's mental anguish during and after the suspension, and the testimony of "Zamora's expert, and several of his supervisors [that] neither ... Zamora's reputation was harmed after he was branded untruthful or that in general, officers found to be liars suffer severe reputational harm within police departments."

5. "The jury also awarded Zamora $127,000 in compensatory damages for future mental anguish and reputational harm." On appeal, Zamora waived the mental-anguish component of the award, but defended the claim for future reputational harm. The panel affirms that There was evidence sufficient to conclude that Zamora will continue to suffer reputational loss even after his suspension was overturned: "the jury was entitled to make the natural and common-sense inference that an employee suffering from a blackened reputation in the eyes of high-ranking executives of an organization is limited in his potential to rise within that organization." Zamoralso introduced expert testimony "about the importance of truthfulness in the law enforcement community, and about the devastating effect that even an overturned finding of untruthfulness can have. The expert, Mel Tucker, testified that 'untruthfulness is one of the worst [complaints], because that's a bell, if you will, that can't be un-rung.'"

6. Finally, the City loses its bid for a new trial based on the jury discovering notes from Zamora's first jury trial, jotted on a blackboard in the jury room. "[T]he district court interviewed each of the jurors individually in open court. The district court noted that, upon discovering the notes and 'deduc[ing] that material was related to some proceeding in this case . . . [the jury] in good faith . . . stopped reading.'"

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