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Revised
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-11059
_______________
CHARLES M. GILES,
Plaintiff-Appellee-
Cross-Appellant,
VERSUS
GENERAL ELECTRIC COMPANY,
Defendant-Appellant-
Cross-Appellee.
_________________________
Appeals from the United States District Court
for the Northern District of Texas
_________________________
March 19, 2001
Before JOLLY, JONES, and SMITH,
favor of Giles. GE further appeals the award
Circuit Judges.
of attorneys' fees. Giles cross-appeals the
quantum of damages and the dismissal of his
JERRY E. SMITH, Circuit Judge:
retaliation claim under state law. We affirm in
part, reverse in part, and remand for further
This appeal arises out of a disability dis-
proceedings.
crimination suit filed by Charles Giles against
General Electric Company ("GE"), which ap-
I.
peals the denial of its motion for judgment as
Beginning in 1978, Giles worked as a
a matter of law ("j.m.l.") following a verdict in

Class A Machinist.1 In April 1995, he injured
interference with his relationship with Coliga-
his back lifting toolboxes while traveling home
do, Giles thereafter sought treatment from Dr.
from a customer location. Although he tried
John Milani, who performed surgery in March
to work thereafter, the pain forced him, in a
1996 and thereafter prescribed a second FCE.
few days, to seek treatment from Dr. Eric
In light of the FCE results, Milani
Coligado, who in July 1995 released him to
recommended in June 1996 that Giles limit his
return to GE, where he attempted to work for
work to a "medium physical demand level"
approximately a week before succumbing
and shortly thereafter released him to work but
again to back pain.
imposed a permanent lifting restriction of fifty
pounds.
The following month, Coligado prescribed
a functional capacity evaluation ("FCE"), on
On August 6, 1996, Milani informed GE
the basis of which2 he concluded that Giles had
that the restrictions would not allow Giles to
attained maximum medical improvement and
return to work as a Class A Machinist.3 In an
rated him as nine percent impairedSSmeaning
August 13 meeting with GE representatives,
Giles exhibited ninety-one percent of the phys-
Giles learned that, based at least in part on
ical capacity of an unimpaired person. In Sep-
Milani's findings, GE would not allow him to
tember 1995, Coligado released Giles to work
return to work.
once again, this time under permanent lifting
restrictions.
Giles filed an application for disability pen-
sion GE in November 1996. As a condition of
On October 12, Coligado released Giles to
eligibility for the pension, Giles asserted that
a transitional work program with a twenty-
he was "permanently incapacitated for further
pound lifting restriction but, five days
work." GE approved the application, and
laterSSapparently at the urging of a nurse in
Giles began receiving payments under the
the employ of GESSrescinded the restriction.
pension plan in April 1997. Giles further
Giles refused to work, however, contending
sought long term disability ("LTD") benefits,
that he was unable to lift even twenty pounds.
which GE agreed to pay through April 1997,
Upset with what he regarded as GE's
backdated to October 1995. After Giles's
LTD benefits expired, he filed with GE in July
1997 a written request for accommodation un-
1 As a Class A Machinist, Giles repaired com-
der the Americans with Disabilities Act
ponents of power-generating equipment produced
("ADA"), 42 U.S.C. � 12101 et seq.
by GE. The position required occasional travel to
customer locations and the lifting of objects
weighing up to ninety pounds. According to Giles
and GE, the position "entailed a lot of crawling
3 Giles testified that Milani's conclusion re-
around into steam turbines" and represented "very
garding his inability to return to work was based on
physical and heavy work."
an erroneous job description GE had given to
Milani. According to Giles, GE furnished to Mi-
2 The FCE results indicated that Giles
lani the job description for a welder, which
frequently could lift twenty to twenty-five pounds
required, inter alia, lifting equipment that weighed
and occasionally fifty pounds. Coligado interpret-
over sixty-seven pounds, and lifting parts that
ed these results as indicating that Giles could not
weighed up to one hundred pounds to a height of
"safely go back to his regular duty work."
forty inches.
2

Giles submitted to a third FCE, which qual-
the close of Giles's case in chief. First, GE
ified him to work only at "medium duty"
argued that Giles had failed to prove that he
positions. Failing to secure an unqualified re-
was a qualified individual under the ADA and
lease to work, he applied for Social Security
that he was judicially estopped from claiming
Disability Insurance ("SSDI") in September
qualified individual status. Second, GE
1997. The Social Security Administration
asserted that Giles had failed to prove the
rejected the application, however, finding that
elements of a retaliation claim under the ADA.
"[his] condition does not prevent [him] from
The court denied the motion with respect to
performing [his] previous job as a machinist as
Giles's status as a qualified individual5 and
it is generally performed."
granted it with respect to the retaliation claim.
II.
The jury made the following findings via
Giles sued in November 1997, asserting
special verdict: (1) Giles is a qualified
claims for discrimination under the ADA and
individual with a disability; (2) his disability
the Texas Commission on Human Rights Act
was a motivating factor in GE's refusal to
("TCHRA"), TEX. LAB. CODE � 21.001 et seq.
rehire him; (3) the reasonable accommodation
He followed with an amended complaint, ad-
requested by Giles would not impose an undue
ding a claim for retaliation under the ADA, a
burden on GE; (4) GE failed to make a good
claim for retaliation under TEX. LAB. CODE
faith effort reasonably to accommodate Giles's
Ann. � 451.001,4 and state tort claims. The
disability; (5) Giles is entitled to $400,000 in
court granted GE's motion for summary judg-
compensatory damages; (6) GE violated
ment on the state tort and retaliation claims
Giles's rights under the ADA with malice or
and reserved judgment on GE's contention
reckless indifference; and (7) Giles is entitled
that Giles's SSDI and LTD benefit
to $800,000 in punitive damages. Citing 42
applications estopped him from asserting that
U.S.C. � 1981a(3)(D), the court limited the
he was a qualified individual for purposes of
award to $300,000,6 denied Giles's motion for
the ADA. The court considered the impact of
back pay, awarded front pay of $141,110, and
Cleveland v. Policy Management Systems
granted Giles attorneys' fees of $150,837.
Corp., 526 U.S. 795 (1999), then denied sum-
mary judgment on the estoppel issue, ruling
GE filed a post-judgment motion for j.m.l.
that Giles had sufficiently explained the
under FED. R. CIV. P. 50(a), contending that
discrepancies between his assertions on the ap-
plications and his contention that he was a
qualified individual. See Giles v. Gen. Elec.
5 The court stated that it was "going to deny the
Co., Civ. Ac. No. 3-97-CV-2774-H, 1999
motion [with respect to Giles's status as a qualified
U.S. Dist. LEXIS 9369 (N.D. Tex. June 9,
individual] . . . and we'll see how we do on that."
1999).
6 The district court characterized the limited
award wholly as compensatory damages,
GE moved for j.m.l. on several issues after
neglecting any punitive award, because the jury's
compensatory award alone exceeded the statutory
cap. We reject this characterization for the
4 The amended complaint did not cite the rel-
purpose of evaluating whether Giles's injuries
evant Texas statute but merely referenced "Federal
supported the compensatory award. See infra part
and State anti-retaliation laws."
IV.A.
3

(1) Giles's statements on his SSDI and benefit
Scurlock Marine, Inc., 107 F.3d 331 (5th Cir.
applications estop him from asserting his status
1997) (en banc).
as a "qualified individual with a disability" un-
der the ADA; (2) Giles is not a qualified
If the facts and inferences point so
individual with a disability, because he could
strongly and overwhelmingly in favor of
not have performed his job even with
one party that the Court believes that
reasonable accommodation; (3) Giles is not
reasonable men could not arrive at a
disabled for purposes of the ADA, because he
contrary verdict, granting of the
was not restricted from a broad class of jobs;
motion[] is proper. On the other hand,
(4) GE does not regard Giles as disabled;7
if there is substantial evidence opposed
(5) GE has a policy of not allowing restricted
to the motion[], that is, evidence of such
individuals to return to work and could not be
quality and weight that reasonable and
required to act contrary to that policy;8
fair-minded men in the exercise of
(6) Giles is not entitled to an award of front
impartial judgment might reach different
pay; and (7) the attorneys' fee award is
conclusions, the motion[] should be
excessive. The court denied the motion in all
denied, and the case submitted to the
respects.
jury.
GE appeals the denial of the rule 50
Id. Accord Piotrowski v. City of Houston,
motion, the magnitude of the damage award,
237 F.3d 567, 576 n.9 (5th Cir. 2001).
and the order awarding attorneys' fees. Giles
cross-appeals the refusal to award back pay,
The court denied GE's motion for j.m.l.
the limitation of the compensatory and
made at the close of Giles's case. Under rule
punitive awards, and the order setting off
50(b), if a party moves for j.m.l. at the close of
Giles's disability benefits against his award.
all the evidence, it may renew its motion after
judgment. The right to renew the motion
III.
post-judgment can be waived, however: "[B]y
We turn first to GE's arguments. When re-
introducing its own evidence after the
viewing the denial of j.m.l., we "consider all of
plaintiff's case in chief, and by failing to renew
the evidence . . . in the light and with all rea-
the motion for [j.m.l.], the defense waive[s] its
sonable inferences" in favor of the party
motion for judgment after the verdict." Tamez
opposing the motion. Boeing Co. v. Shipman,
v. City of San Marcos, 118 F.3d 1085, 1089
411 F.2d 365, 374 (5th Cir. 1969) (en banc),
(5th Cir. 1997).9 Nonetheless, we "ha[ve]
overruled on other grounds by Gatreaux v.
been willing to excuse certain `de minimis' de-
partures from technical compliance with Rule
50(b)," McCann, 984 F.2d at 671, if the
purposes of the rule have been met;10 thus, we
7 We need not address this argument, because
the verdict is sufficiently supported by the finding
that Giles in fact was disabled for purposes of the
ADA. See infra part III.B.
9 See rule 50(b); McCann v. Tex. City Refining,
Inc., 984 F.2d 667, 673 (5th Cir. 1993).
8 Although, in its motion for j.m.l., GE argued
that its policy preempts liability under the ADA, it
10 Rule 50(b) serves two purposes:
does not pursue that issue on appeal.
(continued...)
4

generally have excused violations of rule 50(b)
Cir. 1978)). GE failed to comply with rule
only where
50(b) in moving for j.m.l after judgment. Be-
cause the post-judgment motion for j.m.l.
the trial court had reserved a ruling on
argued several issues, we analyze each
an earlier motion for directed verdict
separately to determine whether GE's
(made at the close of the plaintiff's
shortcoming can be considered de minimis.
evidence); the defendant called no more
than two witnesses before closing; only
A.
a few minutes elapsed between the
1.
motion for directed verdict and the
The first issue GE raised in its post-
conclusion of all the evidence; and the
judgment motion for j.m.l. is whether the
plaintiff introduced no rebuttal evidence.
statements on Giles's SSDI and LTD
applications operate judicially to estop him
Id.11
being a claimant under the ADA. We
conclude that, with respect to this issue, GE's
If a defendant has waived its right to move
failure to comply with the strictures of rule
for j.m.l. after judgment, we review merely for
50(b) are excusable.
plain error and reverse only if the judgment
works a "manifest miscarriage of justice." Mc-
First, the court arguably reserved ruling on
Cann, 984 F.2d at 673 (quoting Coughlin v.
that issue when it was raised at the close of
Capitol Cement Co., 571 F.2d 290, 297 (5th
Giles's case. Although the court denied the
motion, it added, "we'll see how we do on
that," indicating a willingness to revisit the
issue at the close of all the evidence. Second,
10(...continued)
GE's only witness, Bob Scaggs, had first been
to enable the trial court to re-examine the
called by Giles. Importantly, his testimony
question of evidentiary insufficiency as a
was unrelated to the issue of Giles's SSDI and
matter of law if the jury returns a verdict
LTD applications; furthermore, GE
contrary to the movant, and to alert the op-
posing party to the insufficiency before the
contendsSSand Giles does not disputeSSthat
case is submitted to the jury, thereby
Scaggs testified for only an hour.12 Third, as
affording it an opportunity to cure any
in the cases cited in McCann, the plaintiff here
defects in proof should the motion have mer-
presented no rebuttal case.
it.
Most importantly, allowing GE to seek
Bohrer v. Hanes Corp., 715 F.2d 213, 216 (5th
j.m.l. on the estoppel issue does not thwart the
Cir. 1983).
purposes of rule 50(b). The issue of estoppel
11
was well-litigated. Both parties briefed it, and
But see Tamez, 118 F.3d at 1091 (upholding
the court tendered a ruling before trial. In
j.m.l. despite fact that defendant's case in chief
included five witnesses and lasted over five hours,
because the court had discussed the j.m.l.
extensively with the parties and expressly had
12 Although Giles does not dispute GE's
reserved ruling on the motion at the close of
assertion that Scaggs testified for only an hour, he
plaintiff's case, so plaintiff was not unfairly
notes that Scaggs's direct testimony comprises
surprised).
fifty-three pages of transcript.
5

addition, in cross-examination and redirect tes-
[A] plaintiff's sworn assertion in an
timony, Giles discussed his SSDI and LTD ap-
application for disability benefits that she
plications. After moving for j.m.l. at the close
is, for example, "unable to work" will
of Giles's case, GE did not address the issue in
appear to negate an essential element of
its own case in chief, and Giles presented no
her ADA caseSSat least if she does not
rebuttal evidence. Thus, the issue had
offer a sufficient explanation. For that
developed no further by the close of the
reason, we hold that an ADA plaintiff
evidence than it had when GE first moved for
cannot simply ignore the apparent
j.m.l. Therefore, Giles could not have been
contradiction that arises out of the
unfairly surprised by the motion for j.m.l. on
earlier SSDI total disability claim. Rath-
this issue after judgment. We thus review the
er, she must proffer a sufficient
issue of estoppel under the Boeing standard.
explanation.
2.
. . .
To present a prima facie case of
discrimination under the ADA, Giles must
. . . When faced with a plaintiff's
prove that "[he] is a qualified individual with a
previous sworn statement asserting "to-
disability and that the negative employment
tal disability" or the like, [a] court
action occurred because of the disability."
should require an explanation of any ap-
Sherrod v. Am. Airlines, Inc., 132 F.3d 1112,
parent inconsistency with the necessary
1119 (5th Cir. 1998); see 42 U.S.C. �
elements of an ADA claim. To defeat
12112(a). A "qualified individual with a
summary judgment, that explanation
disability" is defined by the ADA as someone
must be sufficient to warrant a rea-
who has a disability, but who, "with or without
sonable juror's concluding that,
reasonable accommodation, can perform the
assuming the truth of, or the plaintiff's
essential functions of the employment position
good faith belief in, the earlier
that such individual holds or desires." 42
statement, the plaintiff could nonetheless
U.S.C. � 12111(8).
"perform the essential functions" of her
job, with or without "reasonable
GE contends that Giles failed sufficiently to
accommodation."
explain the apparent inconsistencies between
the statements on his benefit applications and
Cleveland, 526 U.S. at 806-07. Under
his asserted status as a qualified individual to
Cleveland, unless Giles properly explained the
enable a reasonable juror to conclude that he
discrepancy between his earlier sworn
could perform the essential functions of his
assertions in his SSDI application, he failed to
job, even with reasonable accommodation.
demonstrate a material issue of fact with
According to GE, Giles therefore is estopped
respect to his status as a qualified individual,
from claiming he is able to work with
and the district court should have granted
reasonable accommodation, by virtue of the
summary judgment or j.m.l. in favor of GE on
fact that his applications for SSDI and LTD
that issue.
benefits asserted that he was completely
disabled.
As an initial matter, the assertions in Giles's
SSDI application do not operate judicially to
6

estop him from asserting qualified individual
he has "recurrent disk herniation, resulting
status only because he failed to obtain benefits
with [sic] leg pain & numbness," "inability to
under SSDI. Without an award of SSDI
walk more than 1� blocks," and a
benefits, the inconsistency between Giles's
"perm[anent] [weight] restriction." The ap-
prior statements and his assertions in this
plication also stated that Giles has "[c]hronic
litigation does not give rise to judicial
pain" and that he "can't walk or stand long,"
estoppel:
although he contends that he did not make
those assertionsSSinstead, he claims, the con-
[I]f an individual has merely applied for,
sultant hired by GE inserted them after he had
but has not been awarded, SSDI
completed the form.
benefits, any inconsistency in the theory
of the claims is of the sort normally tol-
Before trial, the court requested briefs on
erated by our legal system. Our
the issue, then ruled that, because "Giles as-
ordinary rules recognize that a person
serts he can perform the job with reasonable
may not be sure in advance upon which
accommodation, and none of the disability
legal theory she will succeed, and so
programs he applied for account for
permit parties to "set forth two or more
reasonable accommodations, . . . Plaintiff has
statements of a claim or defense
offered a sufficient explanation to [survive
alternately or hypothetically," and to
summary judgment]." Giles, 1999 U.S. Dist.
"state as many separate claims or
LEXIS 9369, at *3. Similarly, Giles testified
defenses as the party has regardless of
that none of the benefit applications at issue
consistency."
anticipated reasonable accommodation and
that he felt he could perform the job with such
Id. at 805. The doctrine of judicial estoppel
accommodation. Giles therefore sufficiently
therefore is inappropriate in this case.
explained the assertions on his SSDI
application to allow a reasonable juror to
Even without the operation of judicial es-
conclude that, notwithstanding his prior
toppel, however, the statements on Giles's
representations, he is a qualified individual
SSDI application properly could provide the
basis for summary judgment if they undermine
the factual assertions necessary to his ADA
claim.13 Giles's SSDI application asserted that
13(...continued)
undermined by the plaintiff's previous sworn state-
13 See Albertson v. T.J. Stevenson & Co., 749
ments."). Although Cleveland dealt with the
F.2d 223, 228 (5th Cir. 1984) ("[A] nonmovant
interplay between an ADA plaintiff's assertions at
cannot defeat a motion for summary judgment by
trial and her earlier SSDI application, the Court
submitting an affidavit which directly contradicts,
limited itself to the question of judicial estoppel;
without explanation, his previous testimony."); see
with respect to "factual contradictions," the Court
also Feldman v. Am. Mem'l Life Ins. Co., 196
"[did] not necessarily endorse [existing] cases, but
F.3d 783, 791-92 (7th Cir. 1999) ("Judicial estop-
[left] the law as we found it." Cleveland, 526 U.S.
pel of an ADA claim, however, is distinguishable
at 807. Cleveland is instructive, however, in that
from summary judgment against the plaintiff when
it borrowed from prior "factual contradiction" cas-
factual assertions essential to the claim are
es, including Albertson, the requirement that a
(continued...)
plaintiff explain an apparent contradiction.
7

under the ADA.14
Parker than to Reed or Feldman. The
This case is more similar to Cleveland and
plaintiff's application in Reed described
specific symptoms that, if accepted as true,
would render her unable to obtain a
14 Compare Cleveland, 526 U.S. at 807
government license necessary for the
(reasoning that the facts that the assertions on
performance of her old position. The court in
plaintiff's SSDI application "were made in a forum
Reed, 218 F.3d at 480, ruled that such
which does not consider the effect that reasonable
assertions could not be cured merely by
workplace accommodations would have on the
testifying that the assertions did not account
ability to work" and that the injury apparently
for reasonable accommodation. In Feldman,
improved between the time she filed the SSDI ap-
the plaintiff failed to provide any explanation
plication and the time she asserted her status as a
for the factual inconsistencies.15
qualified individual under the ADA, provided suf-
ficient explanation to survive summary judgment)
and Parker v. Columbia Pictures Indus., 204 F.3d
In contrast, Giles's SSDI application is sim-
326, 334 (2d Cir. 2000) (opining that statement on
ilar to those in Cleveland and Parker, in that it
SSDI application that plaintiff was "still disabled
contains no specific assertions resisting his
does not dictate the factual conclusion that he was
explanation that he could perform his job with
incapable of returning on a part-time basis or with
reasonable accommodation;16 moreover, like
other accommodation," and plaintiff's explanation
the plaintiffs in Cleveland and Parker, he
to that effect precluded summary judgment), with
provided such an explanation. While Giles
Reed v. Petroleum Helicopters, Inc., 218 F.3d
conceded at trial that he suffers pain and labors
477, 480 (5th Cir. 2000) (reasoning that although
under a permanent lifting restrictionSSthe two
general statement of total disability may not have
primary assertions in his applicationSShe
been incompatible with qualified individual status,
contends that a reasonable accommodation
pilot's specific assertions on SSDI application that
would enable him to work at his old position,
"she could not sit for extended periods of time and
despite those impairments. He therefore suf-
that her back problems made her `totally
ficiently explained any factual inconsistencies
unpredictable' were properly considered in
determining that she could not fly a helicopter or
to survive either summary judgment or j.m.l.
obtain a valid airmen's certificate," and bare
assertions that plaintiff spoke little English and that
SSDI application failed to anticipate reasonable
accommodation were insufficient to survive sum-
mary judgment) and Feldman, 196 F.3d at 791-92
(concluding that plaintiff's utter failure to explain
15 See Feldman, 196 F.3d at 792 ("Unlike the
why sworn statement that she was "completely and
plaintiff in Cleveland, Feldman failed to offer any
totally disabled" on SSDI application was not
explanation for the contradiction between her SSDI
inconsistent with her asserted status as a qualified
and ADA statements.")
individual rendered summary judgment
appropriate). Because Giles's explanations
16 The one assertion on Giles's SSDI
encompass both his SSDI application and his other
application that might preclude a jury from finding
benefit applications, we do not reach the issue of
that he could perform his prior job with reasonable
whether any unexplained inconsistencies between
accommodation is the statement that he has chronic
the unsworn statements in those applications and
pain and cannot walk or stand long. A reasonable
his assertions in this litigation might properly form
jury, however, could believe Giles's contention that
the basis for summary judgment on this issue.
he did not make those assertions.
8

B.
Under the ADA, "`qualified individual with
GE argues that, apart from the issues of es-
a disability' means an individual with a
toppel and factual inconsistency, the district
disability who, with or without reasonable ac-
court should have found as a matter of law
commodation, can perform the essential func-
that Giles could not have performed his job
tions of the employment position that such
even with reasonable accommodation,
individual holds or desires." 42 U.S.C.
negating Giles's status as a "qualified
� 12111(8). In determining what constitutes
individual" under the ADA. With respect to
the essential functions of a position,
this issue, GE's rule 50(b) violations cannot be
"consideration shall be given to the employer's
considered de minimis.
judgment as to what functions of a job are
essential, and if an employer has prepared a
Although GE called only one witness as
written description before advertising or
part of its case in chief, that witness testified
interviewing applicants for the job, this
extensively regarding the nature of the Class A
description shall be considered evidence of the
Machinist position, whether a person with
essential functions of the job." Id.
Giles's disabilities would be able to perform
the duties required, and whether any
GE contends that Giles cannot bend, climb,
accommodation would be feasible. GE relies
or lift to the degree required by the Machinist
heavily on the testimony of that witness in its
Class A position, and it introduced testimony
post-judgment motion for j.m.l. and on appeal.
indicating that those skills are essential to the
In light of the close nexus between the issue
position. Nonetheless, Giles produced a pub-
on which GE sought j.m.l. and the extensive
lished list of "Job Classifications and Descrip-
testimony of its lone witness, to entertain GE's
tions" from GE's Dallas Service Center that
post-judgment motion on this issue despite
included a description of the Machinist Class A
GE's failure to comply with rule 50(b) would
position:
unfairly surprise Giles and thereby would
thwart one of the purposes of rule 50(b). See
Performs miscellaneous operations in-
Bohrer v. Hanes Corp., 715 F.2d 213, 216
volving broad machine shop experience.
(5th Cir. 1983). Consequently, we cannot ex-
Operates all types of machine tools, in-
cuse GE's failure to follow the procedures
volving close tolerance work, intricate
outlined by the rule, so GE waived its motion
setups and development. Dismantles,
for j.m.l. with respect to this issue.
assembles, diagnoses and corrects
mechanical trouble on electrical and
Thus, we review only for plain error the
mechanical equipment such as turbines,
verdict with respect to whether Giles is a qual-
motors, generators, transformers, etc.
ified individual under the ADA. Under that
Machines or builds parts from samples
standard, "our inquiry is limited to whether
or drawings. Performs related duties as
there was any evidence to support the jury's
assigned. May direct others.
verdict, irrespective of its sufficiency, or
whether plain error was committed which, if
Though the description "does not purport
not noticed, would result in a manifest
to be all-inclusive or exhaustive of the actual
miscarriage of justice." Coughlin, 571 F.2d at
requirements of [the] job," it nowhere
297 (internal quotation marks omitted).
indicates that climbing, bending, or lifting is
9

essential. The description may not be the
issue.17 By failing to raise the issue at any time
bestSSor even sufficientSSevidence of the es-
before its post-judgment motion, GE waived
sential requirements of the Machinist Class A
it, so we refuse to consider it now.18
position to survive under a more stringent
standard of review, but it does provide, under
IV.
� 12111(8), some evidence supporting the
A.
verdict.
The jury awarded $400,000 as
compensatory damages and $800,000 as
Furthermore, Giles introduced evidence
punitive damages pursuant to 42 U.S.C. �
that Milani's final determination finding him
1981a, which authorizes compensatory and
unable to return to work as a Class A
punitive damages for discrimination under the
MachinistSSa determination that apparently
ADA.19 The court limited the damages to
influenced GE's decision not to rehire
$300,000 under the limitation provisions of 42
GilesSSwas based on an incorrect job
U.S.C. � 1981a(b)(3) and characterized the
description pro vided to Milani by GE. This
entire award, so limited, as compensatory.20
discrepancy ameliorates GE's assertion that
GE argues that the award is unsupported by
medical experts determined that Giles could
not perform the essential elements of the Class
A Machinist position. Finally, the SSA's
17 In its April 1999 summary judgment order,
determination that Giles's disability "does not
the court noted that "Defendant does not dispute
prevent [him] from performing [his] previous
that Plaintiff, who injured his back while working
job as machinist as it is generally performed" is
for the Defendant in Mexico and has undergone
additional evidence supporting the verdict.
back surgery and rehabilitation due to this injury,
We cannot conclude that there was no
is in fact disabled for purposes of the ADA."
evidence produced to support the verdict; the
Moreover, the joint pretrial order fails to mention,
jury was no t plainly erroneous in finding that
either as a defense or as a contested issue of law,
Giles was a qualified individual under the
Giles's alleged lack of disability for purposes of the
ADA.
ADA.
18 See Portis v. First Nat'l Bank, 34 F.3d 325,
C.
331-32 (5th Cir. 1994). (holding that an issue not
In addition to arguing that Giles is not a
raised in the district court will not be reviewed on
"qualified individual," GE contends that he
appeal, and determining that "[a] party has
failed to establish another element of his prima
presented an issue in the trial court if that party has
facie case under the ADA; namely, that he
raised it in either the pleadings or the pretrial order,
possessed a disability as defined by that
or if the parties have tried the issue by consent.").
statute. In denying GE's post-judgment
19
motion on the issue, the district court
Tracking the language of � 1981a(b)(3), the
notedSSand GE does not disputeSSthat, before
charge defined compensatory damages to include
"emotional pain and suffering, inconvenience, men-
filing its post-judgment motion, GE never
tal anguish, loss of enjoyment of life, and other
raised the issue of whether Giles was disabled
non-pecuniary losses."
and, in fact, previously had conceded the
20 Giles contends that the court improperly ap-
plied the statutory cap. We consider that in
part V.A, infra.
10

competent evidence of actual injury.
considerably on the demeanor of witnesses."23
Nonetheless, to merit any award greater than
The capped amount for a damage award
nominal damages, emotional distress damages
under �1981a is $300,000. When deciding
must "be supported by competent evidence
whether a jury award is excessive, we consider
concerning the injury."24
the amount of the award after application of
the statutory cap, not the amount given by the
There are two requirements to prove
jury. See Vadie v. Miss. State Univ., 218 F.3d
emotional distress, the first of which is
365, 375-76 (5th Cir. 2000), cert. denied, 121
specificity with respect to the alleged injury:
S. Ct. 859 (2001), and cert. denied, 2001 U.S.
"[T]here must be a specific discernable injury
LEXIS 1197 (U.S. Feb. 20, 2001) (No. 00-
to the claimant's emotional state, proven with
1007).
evidence regarding the nature and extent of the
harm . . . . [H]urt feelings, anger and
In limiting Giles' damages to $300,000, the
frustration are part of life . . . and [are] not the
district court characterized those damages as
types of harm that could support a mental
solely compensatory. Without passing on
anguish award." Id. Damages for emotional
whether it is appropriate in every case to char-
distress may be appropriate, however, where
acterize limited damages as purely
"the plaintiff suffers sleeplessness, anxiety,
compensatory,21 we note that the lack of
stress, marital problems, and humiliation."
evidence of malice or reckless indifference on
Migis v. Pearle Vision, Inc., 135 F.3d 1041,
the part of GE justifies that delineation here.22
1047 (5th Cir. 1998).
We thus consider whether Giles produced
sufficient evidence to support a $300,000
Second, we require more than vague
compensatory judgment.
allegations to establish existence of the injury.
Because "`emotional distress [is] fraught with
We review with deference damage awards
vagueness and speculation, [and] is easily sus-
based on intangible harm, because "the harm is
ceptible to fictitious and trivial claims,' we
subjective and evaluating it depends
must `scrupulously analyze an award of
compensatory damages for a claim of
emotional distress predicated exclusively on
the plaintiff's testimony.'" Brady, 145 F.3d at
21 See Quint v. A.E. Staley Mfg. Co., 172 F.3d
1, 13-14 & n.9 (1st Cir. 1999), petition for cert.
filed (June 21, 1999) (No. 98-9984) (refusing, in
23 Patterson v. P.H.P. Healthcare Corp., 90
the face of substantial evidence supporting punitive
F.3d 927, 937-38 (5th Cir. 1996) (quoting
damages, to accept the district court's
1 HENRY H. PERRITT, JR., CIVIL RIGHTS IN THE
characterization of the limited award as purely
WORKPLACE � 4.6, at 245 (2d ed. 1995)).
compensatory because "by its terms . . . section
1981a(b)(3) neither contemplates nor requires such
24 Brady v. Fort Bend County, 145 F.3d 691,
a characterization.").
718 (5th Cir. 1998) (quoting Carey v. Piphus, 435
U.S. 247, 264 n.20 (1978)). We use "emotional
22 A punitive award is justified only if the
distress" to refer to Giles's emotional pain and
defendant acted "with malice or with reckless
suffering, mental anguish, and loss of enjoyment of
indifference to the federally protected rights" of the
life, to the extent that those injuries formed the
plaintiff. 42 U.S.C. � 1981a(b)(1).
basis for the compensatory award.
11

719. (quoting Price v. City of Charlotte, 93
the plaintiff chooses not to accept the remitted
F.3d 1241, 1250, 1251 (4th Cir. 1996)).
award, a new trial on the issue of damages
Importantly, however, "we do not now hold,
alone. See id. To determine the size of the re-
nor have we ever held, that a plaintiff may
mittitur, we follow the "maximum recovery
never prove mental anguish damages with his
rule," reducing the damages to the maximum
own testimony alone. In certain cases a
amount a reasonable jury could have awarded.
plaintiff's testimony alone may be sufficient
See Dixon v. Int'l Harvester Co., 754 F.2d
proof of mental damages." Id. at 720.25
573, 590 (5th Cir. 1985). "Of course, our re-
assessment of damages cannot be supported
Giles relies primarily on his own testimony
entirely by rational analysis, but involves an
to support his contention of emotional distress,
inherently subjective component." Eiland, 58
although he also cites the testimony of a co-
F.3d at 183.
worker, Mike Joyner. Giles testified that he
has had trouble sleeping, suffered headaches
The symptoms of which Giles complains
and marital difficulties, and lost the prestige
do not support an award of $300,000. In
and social connections associated with his
Forsyth v. City of Dallas, 91 F.3d 769, 774
position at GE and his service as treasurer of
(5th Cir. 1996), we concluded that a jury
the local union. Joyner testified that Giles
reasonably had awarded $100,000 for
appeared "despondent, depressed, down and
emotional distress symptoms quite similar to
absolutely utterly discouraged about not being
Giles's.26 In our view, that amount properly
able to come back to work." This testimony
would compensate Giles for his emotional dis-
is specific enough to allow a jury to award
tress. To avoid substituting our judgment for
compensatory damages.
that of the jury, however, we augment that
amount by fifty percent to reach a maximum
We cannot say, however, that Giles is
recovery. See Dixon, 754 F.2d at 590 (citing
entitled to the full $300,000. "There is a
Caldarera v. E. Airlines, Inc., 705 F.2d 778,
strong presumption in favor of affirming a jury
784-85 (5th Cir. 1983)). We therefore reduce
award of damages. The damage award may be
Giles' compensatory award to $150,000, with
overturned only upon a clear showing of
the option of a new trial if he chooses not to
excessiveness . . . . However, when this court
accept the remittitur.
is left with the perception that the verdict is
clearly excessive, deference must be
abandoned." Eiland v. Westinghouse Elec.
Corp., 58 F.3d 176, 183 (5th Cir. 1995)
(citation omitted).
26 Forsyth upheld emotional distress damages
In such a case, we grant a remittitur, or if
of $100,000 to one plaintiff based on her testimony
that "she suffered depression, weight loss,
intestinal troubles, and marital problems, that she
had been sent home from work because of her
25 See also Migis, 135 F.3d at 1047 (noting that
depression, and that she had to consult a
an award for emotional distress "does not always
psychologist," and emotional distress damages of
require that the plaintiff offer medical evidence or
$75,000 to a second plaintiff who "testified that he
corroborating testimony in addition to her own
suffered depression, sleeplessness, and marital
testimony").
problems." 91 F.3d at 774.
12

B.
Giles had failed to mitigate his future damages.
The district court awarded front pay of
The court therefore "decided to exercise its
$141,110.27 GE argues Giles failed to mitigate
equitable discretion and award Plaintiff front
his damages by seeking further employment
pay in an effort to make him whole."
and that the court erred in awarding front pay
in light of this failure. We review front pay for
The court did not abuse its discretion. The
abuse of discretion. See Rutherford v. Harris
only evidence cited by GE to show that Giles
County, 197 F.3d 173, 188 (5th Cir. 1999).
failed to mitigate his future damages is the fact
that he accepted employment as a park
In exercising that discretion, the district
attendant and a finding by the Texas Workers'
court must consider whether an award of front
Compensation Commission that he had "not
pay is reasonable under the facts of the case;
made a good faith effort to obtain employment
because front pay is an equitable remedy em-
equal to [his] ability to work" and suspended
ployed to account for future lost earnings, the
his workers' compensation benefit for that rea-
award "should reflect earnings in mitigation of
son. Giles challenged the commission's find-
damages." Patterson, 90 F.3d at 937 n.8. Ac-
ing and, after a hearing, persuaded that agency
cordingly, district courts "must consider [a
that the benefits should not have been sus-
plaintiff's] failure to mitigate . . . damages in
pended because, in fact, he had diligently
determining the extent to which, if at all, front
sought work. Moreover, although Giles is un-
pay is appropriate." Hansard v. Pepsi-Cola
able to detail specifically how he conducted his
Metro. Bottling Co., 865 F.2d 1461, 1470 (5th
job search, he attributes that shortcoming to a
Cir. 1989).
lack of adequate record-keeping, not of effort.
In support of its argument that Giles failed
to mitigate, GE cites primarily the refusal to
Ultimately, this evidence is inconclusive.
award back pay, contending that the finding of
Though the evidence of Giles's failure to mit-
failure to mitigate damages in that context re-
igate may have been sufficient to allow the
quires a similar finding with respect to front
court to deny front pay, it was insufficient to
pay. The court considered that argument,
require it to do so.28
however, and concluded that, notwithstanding
Giles's failure to mitigate back pay damages,
GE had not met its burden of proving that
28 Perhaps a thornier issue is whether front pay
is subject to the statutory cap embodied by
� 1981a(b)(3), which limits "compensatory dam-
ages," including, inter alia, "future pecuniary
27 "Front pay is awarded to compensate the
losses." Although the issue appears undecided in
plaintiff for lost future wages and benefits." Shir-
this circuit, the majority of circuits to confront it
ley v. Chrysler First, Inc., 970 F.2d 39, 44 (5th
have concluded that front pay should not be limited
Cir. 1992). Reinstatement generally is preferable
by � 1981a(b)(3) because, as an alternative to
to an award of front pay, and we customarily re-
reinstatement, it is equitable in nature and therefore
quire the district court to articulate its reasons for
falls outside the statutory limitation of "com-
finding reinstatement infeasible and awarding front
pensatory damages." Compare Pals v. Shepel Bu-
pay in lieu of reinstatement. See Weaver v. Amoco
ick & GMC Truck, Inc., 220 F.3d 495, 499-500
Prod. Co., 66 F.3d 85, 88-89 (5th Cir. 1995). GE
(7th Cir. 2000) (holding front pay exempt from
concedes that reinstatement is not feasible.
(continued...)
13

C.
Miller, 818 F.2d 1227, 1232 (5th Cir. 1987).
After a hearing, the court awarded
"The `district court's Johnson analysis . . .
attorneys' fees of $150,837. Pursuant to 42
need not be meticulously detailed to survive
U.S.C. � 1988(b), courts may award fees to
appellate review', but it must articulate and
prevailing plaintiffs in civil rights actions. We
clearly apply the Johnson criteria." Riley, 99
review an award for abuse of discretion and
F.3d at 760 (quoting Louisiana Power & Light
any factual findings supporting the award for
Co. v. Kellstrom, 50 F.3d 319, 331 (5th Cir.
clear error. See Riley v. City of Jackson, 99
1995)).
F.3d 757, 759 (5th Cir. 1996). In exercising
that discretion, however, the district court
GE complains that the court abused its
must heed the twelve-factor analysis of
discretion and that the award was excessive,
Johnson v. Ga. Highway Express, Inc., 488
because Giles employed five lawyers, took no
F.2d 714 (5th Cir. 1974).29 See Cobb v.
depositions, made no court appearances before
trial, and argued no novel issues. We disagree.
The court considered the Johnson factors
28(...continued)
carefully in determining the appropriate fee
cap); EEOC v. W & O, Inc., 213 F.3d 600, 618 &
award.
n.10 (11th Cir. 2000) (same); Gotthardt v. Nat'l
R.R. Passenger Corp., 191 F.3d 1148, 1153-54
Specifically, the court found that Giles's
(9th Cir. 1999) (same); Martini v. Fed. Nat'l
attorneys' lodestar value accurately reflected
Mortgage Ass'n, 178 F.3d 1336, 1348-49 (D.C.
the complexity and novelty of the case;30
Cir. 1999) (same), cert. denied, 120 S. Ct. 1155
moreover, the court found that the ability and
(2000); Medlock v. Ortho Biotech, Inc., 164 F.3d
reputation of Giles's attorneys was accurately
545, 556 (10th Cir.) (same), cert. denied, 528 U.S.
813 (1999); Kramer v. Logan County Sch. Dist.,
157 F.3d 620, 626 (8th Cir. 1998) (same), with
Pollard v. E.I. du Pont de Nemours & Co., 213
29(...continued)
F.3d 933, 945 (6th Cir. 2000) (reasoning that front
customary fee, (6) whether the fee is fixed
pay is compensatory in nature and therefore subject
or contingent, (7) time limitations imposed
to the cap), cert. granted, 121 S. Ct. 756 (2001);
by the client or the circumstances, (8) the
Hudson v. Reno, 130 F.3d 1193, 1202-03 (6th Cir.
amount involved and the results obtained,
1997) (same). Like the majority of circuits, we
(9) the experience, reputation, and ability of
regard front pay as an equitable remedy, see
the attorneys, (10) the undesirability of the
Walther v. Lone Star Gas Co., 952 F.2d 119, 127
case, (11) the nature and length of the
(5th Cir. 1992). By failing to argue that the
professional relationship with the client, and
limitation applies, however, GE has waived the
(12) awards in similar cases. Strong v.
issue on appeal, so we do not decide it.
BellSouth Telecomms., Inc., 137 F.3d 844,
850 n.4 (5th Cir. 1998) (citing Johnson,
29 As we recently reiterated,
488 F.2d at 717-19).
[t]he twelve Johnson factors are: (1) the
30 The lodestar value is the number of hours
time and labor required, (2) the novelty and
worked by Giles's attorneys multiplied by their
difficulty of the issues, (3) the skill required
respective rates. It serves as the base value for any
to perform the legal services properly, (4)
fee award, subject to enhancement or reduction
the preclusion of other employment, (5) the
based on the Johnson factors. See Riley, 99 F.3d
(continued...)
at 760.
14

reflected in their customary billing rates and
Act of Texas, TEX. REV. CIV. STAT. ANN. art.
that the result obtainedSSa successful
4590i. There, we analyzed several factors in
judgment of over $1,000,000, reduced to over
determining that the statutory limitation
$400,000 by the statutory capSSjustified the
functioned as an affirmative defense that must
lodestar value.31 Finally, finding some of
be pleaded under FED. R. CIV. P. 8(c).
Giles's attorneys' fees unreasonable, the court
reduced their hours and rates.
We need not reach the issue of whether the
statutory cap of � 1981a(b)(3) must be plead-
Although GE complains about the number
ed as an affirmative defense under Ingraham,32
of attorneys employed by Giles, it does not
because even assuming the cap is an
take issue with any of the court's Johnson
affirmative defense, GE's failure to plead the
analysis. We cannot conclude that the court
cap did not waive the defense in this case. Al-
abused its discretion in determining the fee
though failure to raise an affirmative defense
award.
under rule 8(c) in a party's first responsive
pleading "generally results in a waiver. . . . ,
V.
[w]here the matter is raised in the trial court in
A.
a manner that does not result in unfair surprise
In his cross-appeal, Giles contends that the
. . . technical failure to comply precisely with
statutory limitation of � 1981a(b)(3) does not
Rule 8(c) is not fatal." Allied Chem. Corp. v.
apply to the damages in this case, arguing that
Mackay, 695 F.2d 854, 855-56 (5th Cir.
the limitation is an affirmative defense; because
1983). Thus, a defendant does not waive an
GE failed to plead that defense, it waived its
affirmative defense if he "raised the issue at a
right to argue for limitation of the judgment
pragmatically sufficient time, and [the plaintiff]
after trial. Giles can marshal no authority
was not prejudiced in its ability to respond."
directly supporting his assertion, so he argues
Id. at 856.
by analogy from Ingraham v. United States,
808 F.2d 1075 (5th Cir. 1987), in which we
considered the statutory limitation of the
Medical Liability and Insurance Improvement
32 The only court to have addressed the issue of
whether the limitation provision of � 1981a(b)(3)
functions as an affirmative defense reasoned per-
31 The district court correctly focused on the
suasively that it does not; instead, the court opined,
weightier factors in the Johnson analysis, with em-
the � 1981a cap is an integral part of the statutory
phasis on the most important factor, the result
scheme under which the plaintiff sought
obtained. See Migis, 135 F.3d at 1047 (noting
damagesSSthus, a plaintiff cannot have suffered
that, in conducting a Johnson analysis, a "court
unfair surprise in the invocation of the cap, so the
should give special heed to the time and labor
cap should not be waivable as a defense. See
involved, the customary fee, the amount involved
Oliver v. Cole Gift Ctrs., Inc., 85 F. Supp. 2d 109,
and the result obtained, and the experience,
111-12 (D. Conn. 2000) (distinguishing Ingraham
reputation and ability of counsel," and emphasizing
as one of a number of cases in which "[t]he courts
that "[t]he Supreme Court has twice made clear
. . . held that the caps were affirmative defenses in
that `the most critical factor' in determining the
order to prevent unfair surprise because the caps
reasonableness of a fee award in a civil rights suit
were not evident on the face of the statutory
`is the degree of success obtained'" (quoting
schemes under which the plaintiffs had brought
Farrar v. Hobby, 506 U.S. 103, 114 (1992)).
their claims.")
15

GE asserted the defense as a contested is-
identical to that in � 1981a(b)(3). See TEX.
sue of law in the joint pretrial order, and the
LAB. CODE ANN. � 21.2585. The similarity is
court held a hearing on the issue before trial.
unsurprising, given the Texas Legislature's
Under these circumstances, Giles could not
goal of "provid[ing] for the execution of the
have been unfairly surprised by the statutory
policies embodied in Title I of the Americans
limitation. The court therefore properly
with Disabilities Act of 1990 and its
allowed GE to use the cap as a defense despite
subsequent amendments." Id. � 21.001(3). In
GE's failure to follow the strictures of rule
the face of the similarities in the two statutory
8(c).
caps and the legislature's practice of
replicating the federal scheme, the legislative
B.
policy would be better served by viewing the
Giles contends that the court should have
two caps as coextensive, not cumulative. The
"reallocated" into his claim under the Texas
court did not err in limiting Giles's
Human Rights Act those damages in excess of
compensatory damage award to $300,000
the federal statutory cap. We disagree.
pursuant to � 1981a(b)(3).
The sole case relied on by Giles, Martini v.
C.
Fed. Nat'l Mortgage Ass'n, 178 F.3d 1336
Giles argues that the court erred in denying
(D.C. Cir. 1999), cert. dismissed, 528 U.S.
his request for back pay. Like front pay, back
1147 (2000), involved coextensive claims un-
pay is an equitable remedy, the award of which
der both federal law and a District of Columbia
we review for abuse of discretion.33 Because
law. The federal claim was subject to the
it is an equitable remedy, back pay is subject to
limitations of � 1981a(b)(3), but the analogous
a duty to mitigate damages. See Deffenbaugh-
claim under District of Columbia law carried
Williams, 156 F.3d at 590.
no such limitation. The jury had received no
instruction on apportioning the damages be-
The court surveyed the evidence of Giles's
tween the two claims, and the court of appeals
attempts to mitigate his damages and
held that the district court had improperly lim-
concluded that he had failed to mitigate his
ited the damages, because there was no basis
damages with respect to the back pay award,
for determining how the jury had apportioned
based in particular on the fact that he could
the award. See id. at 1347-50. Further, the
document very little of his asserted job search.
court of appeals reasoned, "[w]ere we not to
Although Giles produced sufficient evidence to
treat damages under federal and local law as
allow front pay, he failed to produce enough
fungible where the standards of liability are the
evidence to compel the court to award back
same, we would effectively limit the local
jurisdiction's prerogative to provide greater
remedies for employment discrimination than
those Congress has afforded under Title VII."
Id. at 1350.
33 See Deffenbaugh-Williams v. Wal-Mart
Stores, Inc., 156 F.3d 581, 590 (5th Cir. 1998),
This case is distinct from Martini in that
vacated for rehearing en banc, 169 F.3d 215 (5th
the state law undergirding Giles's claim
Cir.), reinstated in part, 182 F.3d 333 (5th Cir.
contains a damages limitation provision
1999) (per curiam) (en banc); Hadley v. VAM
P.T.S., 44 F.3d 372, 376 (5th Cir. 1995).
16

pay.34 The district court's decision to deny
affidavits, or by the depositions, answers to
back pay is therefore within its sound
interrogatories, and admissions on file,
discretion.
designate specific facts showing that there is a
genuine issue for trial." Celotex, 477 U.S. at
D.
524 (internal quotation marks omitted).
The court granted summary judgment for
GE on Giles's workers' compensation
Giles contends that the court improperly
retaliation claim. Giles contends the court
granted summary judgment on his workers'
should have allowed the claim to proceed to
compensation claim, because GE never moved
trial. We review a summary judgment de
for summary judgment on that issue. The rec-
novo, applying the same standard as did the
ord reflects, however, that GE did seek
district court, so we view all disputed facts in
summary judgment on "all claims and causes
the light most favorable to the non-moving
of action asserted by . . . Giles . . . " and
party. See Waymire v. Harris County, 86 F.3d
argued that "there is no evidence that . . . GE
424, 427 (5th Cir. 1996).
took or refrained from any action based on
Giles's workers' compensation claim for
To survive a motion for summary
benefits." To the extent that Giles's retaliation
judgment, the non-moving party must present
claim fell outside the language of GE's motion,
sufficient evidence to support the elements of
it did so because, as the district court noted,
its prima facie case. See Celotex Corp. v. Ca-
"no citation was made to the relevant statutory
trett, 477 U.S. 317, 321-23 (1986). "Conclu-
provision in either the Plaintiff's First
sory allegations unsupported by specific facts
Amended Complaint . . . or the Plaintiff's
. . . will not prevent an award of summary
Response to Defendant's Motion for Summary
judgment; `the plaintiff [can]not rest on his
Judgment."35
allegations . . . to get to a jury without any
significant probative evidence tending to sup-
The court granted summary judgment on
port the complaint." Nat'l Ass'n of Gov.
the workers' compensation retaliation claim
Employees v. City Pub. Serv. Bd., 40 F.3d
because Giles failed to produce summary judg-
698, 713 (5th Cir. 1994) (quoting Anderson v.
ment evidence establishing the nexus between
Liberty Lobby, Inc., 477 U.S. 242, 249
the filing of his workers' compensation claim
(1986)) (modifications in original). Instead,
and his termination. Giles apparently concedes
"Rule 56(e) . . . requires the nonmoving party
that his response failed to "designate specific
to go beyond the pleadings and by her own
facts showing that there [was] a genuine issue
for trial," as required by Celotex, but instead
argues that GE's summary judgment motion
provided insufficient notice for him properly to
34 Although it may seem anomalous that the
respond before summary judgment was grant-
district court can view the same evidence and reach
opposing conclusionsSSthat front pay is ap-
propriate while back pay is notSSthat court's
discretion allows for such conclusions in the in-
35 Giles's first amended complaint merely al-
terest of equity. Such a result is the functional
leged that he "was subject to adverse actions as
equivalent of a reduction in both front pay and
prohibited by anti-retaliation laws because . . . he
back pay, another action well within the court's
. . . was injured on the job and filed workers'
discretion.
compensation claims."
17

ed.
E.
In awarding damages, the court offset,
Giles unsuccessfully moved for
from the front pay award, an amount equal to
reconsideration, asserting the same argument
the sum of the LTD and disability pension
before the district court. Because Giles filed
benefits Giles had already received from GE.
his motion for reconsideration within ten days
Giles argues that this is error, because GE
of the original summary judgment order, we
failed to plead the offset as an affirmative de-
treat the motion for reconsideration as a
fense under rule 8(c). GE concedes that it
motion to amend the judgment under FED. R.
failed to assert the affirmative defense36 but
CIV. P. 59(e). See Trust Co. Bank v. United
argues that this should be excused. As we
States Gypsum Co., 950 F.2d 1144, 1147 (5th
have said, a court may excuse a violation of
Cir. 1992). We review such a motion for
rule 8(c) in the absence of prejudice to the
abuse of discretion. See Midland W. Corp. v.
other party.
FDIC, 911 F.2d 1141, 1145 (5th Cir. 1990).
On appeal, Giles alleges no prejudice other
Dealing first with the summary judgment,
than the assertion that his expert was
we agree with the district court that Giles did
"ambushed" by GE's questioning about
not carry his burden under Celotex. By failing
benefits at trial. Giles was not unfairly
specifically to set forth facts that could present
prejudiced by the defense, however, because
a triable issue, he neglected to support his
the parties each addressed t he issue before
claim sufficiently to survive summary
trial.
judgment. To the extent that he asks us to
revisit the summary judgment because GE's
Giles raised the issue in a motion in limine
motion did not provide him with proper notice,
and proceeded to object on the merits to sev-
we treat that as an appeal of the motion to
eral of GE's trial exhibits before trial. GE filed
reconsider, because the court addressed that
a brief before trial addressing Giles's
argument in refusing to reconsider its summary
objections and indicating its intention to seek
judgment.
an offset: "According to Giles, because these
payments fall under the collateral source rule,
Likewise, we find no abuse of discretion in
they cannot be introduced at trial nor can they
the decision not to amend the summary
offset his recovery. . . . [T]he collateral source
judgment. Given the imprecision with which
rule does not apply." Giles's motion in limine
Giles framed his retaliation claim in the amend-
and GE's pretrial assertion belie his asserted
ed complaint, GE's summary judgment motion
prejudice. The court was well within its dis-
sufficiently referenced that claim when
cretion to consider GE's affirmative defense of
asserting that it had taken no action in
offset, notwithstanding GE's failure properly
retaliation to the filing of the compensation
claim.
36 Our caselaw supports Giles's contention that
GE cannot be expected to anticipate the
an offset indeed is an affirmative defense. See
basis for Giles's claim. We therefore affirm
Rosenberg v. Trautwein, 624 F.2d 666, 670 (5th
the summary judgment on the workers'
Cir. 1980) (noting in passing "the general rule that
compensation retaliation claim.
an offset is an affirmative defense that must be
pleaded").
18

to plead the defense.
The collateral source rule would do exactly
thatSSGE is already obligated to pay Giles's
Giles takes issue with the merits of the
disability pension and LTD benefits to
decision to offset the recovery. Because the
compensate for his inability to work in the
decision to award front pay is within the dis-
future. Failure to set those amounts off
cretion of the district court, so also we review
against his front pay awardSSwhich is designed
the decision to offset that award for abuse of
to accomplish the same purposeSSwould
discretion. The district court acted well within
overcompensate Giles. Accordingly, the court
that discretion.
acted within its discretion in setting off the
benefits from the front pay award.
Giles baldly asserts that the collateral
source rule bars setting off the benefits against
VI.
the front pay award.37 Giles cites Davis for
In conclusion, the jury's compensatory
the proposition that "when an employee has
award is excessive, even as limited by � 1981a-
bargained for a fringe benefit as additional
(b)(3). We therefore offer the plaintiff a
consideration for employment, compensation
remittitur of $150,000 in compensatory dam-
received by the employee under that fringe
ages or a new trial on compensatory damages
benefit should not be deducted from damages
alone. In all other respects, we affirm the
awarded to the employee," 18 F.3d at 1244.
judgment.
Giles fails, however, to explain how that pro-
position might apply to this case.
AFFIRMED IN PART, REVERSED IN
PART, AND REMANDED.
Plainly, the benefits used to offset the front
pay were not additional, bargained-for
compensation but were instead compensation
for the injury out of which this case arises. In
seeking to apply Davis's language to the facts
of this case, Giles misapprehends one of the
central tenets of Davis: "Properly interpreted
. . ., the collateral source rule . . . prevents
tortfeasors from paying twice for the same
injurySSa result that would achieve both over-
deterrence and overcompensation. Id. at 1244
n.21.
37 "The collateral source rule is a substantive
rule of law that bars a tortfeasor from reducing the
quantum of damages owed to a plaintiff by the
amount of recovery the plaintiff receives from other
sources of compensation that are independent of (or
collateral to) the tortfeasor." Davis v. Odeco, Inc.,
18 F.3d 1237, 1243 (5th Cir. 1994)
19