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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-60289
_______________
YVONNE E. VANCE,
Plaintiff-Appellee,
VERSUS
UNION PLANTERS CORPORATION, ET AL.,
Defendants,
UNION PLANTERS BANK, NATIONAL ASSOCIATION,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Mississippi
_________________________
April 25, 2000
Before DAVIS, CYNTHIA HOLCOMB
N.A. ("Union Planters"), under title VII, alleg-
HALL,* and SMITH, Circuit Judges.
ing discriminatory failure to promote on the
basis of sex. A jury awarded $30,000 for lost
JERRY E. SMITH, Circuit Judge:
wages and benefits, $20,000 for emotional dis-
tress, and $390,000 in punitive damages. The
Yvonne Vance sued Union Planters Bank,
district court later reduced the total amount
awarded to $330,000 because of title VII's
statutory limits on employer liability. Union
* Circuit Judge of the Ninth Circuit, sitting by
Planters appealed, asserting that (1) no
designation.
reasonable jury could have found sex

discrimination, (2) the court erred in allowing
Jimmy Brown, gave her a glowing
the jury to hear evidence that Union Planters
recommendation and told Davis he should
had previously been found to have violated the
immediately hire her to lead the new bank.
Equal Pay Act, and (3) the district court
erroneously determined Union Planters's size
Instead, Davis approached Ed Neelly, who
for purposes of the statutory liability limits. We
was now working for the Grenada Sunburst
affirm with regard to the first two issues and
branch in Tupelo, and offered him the job.
vacate and remand on the third issue.
Neelly declined and recommended that Davis
hire Vance, with whom Neelly had worked for
I.
years. Davis told Neelly that he was looking
Vance had been president of the Oxford,
to hire a "mature man." In response, Neelly
Mississippi, branch of Grenada Sunburst Bank
recommended Tom Carroll as an effective
for seven years when the cause of action arose.
second-in-command at the new bank. Brown
She performed energetically and successfully in
also recommended Vance over Carroll. Davis
her capacity as branch president and was
then offered the branch presidency to Butch
familiar with the Oxford financial market. Un-
Collums, who had worked under Davis at First
ion Planters Corporation, which owned, inter
National Bank; Collums rejected the offer.
alia, First National Bank of New Albany and
United Southern Bank, agreed in July 1994 to
Davis claims then to have contacted Pete
purchase Grenada Sunburst Bank effective
Boone, the former CEO of Grenada Sunburst
December 31, 1994.
Bank. Boone denies he was ever contacted,
and testified that had he been, he strongly
Pursuant to a reorganization plan, Union
would have recommended Vance over Carroll.
Planters Corporation announced that it would
Davis contacted Boone's successor, Don
consolidate its area banks into Union Planters
Ayres, who, though he testified that he barely
Bank of Northeast Mississippi, N.A. The new
knew Vance, recommended hiring Carroll over
bank would be headed by Pat Davis, who pre-
Vance. Davis then interviewed Carroll, whose
viously had been president of First National
job at Grenada Sunburst had been eliminated
Bank. Because United Southern and Grenada
during that bank's reorganization; Carroll ex-
Sunburst had bank branches in Oxford, the two
pressed interest in the branch presidency.
branches were to be consolidated. Davis was
Davis hired Carroll on March 15, 1995, and
charged with hiring a president for the newly
offered Vance the number two position, which
consolidated bank branch.
she declined. Vance resigned and accepted the
number two job at the Bank of Mississippi
Vance promptly applied for the job, as did
branch in Oxford, where she soon rose to the
Hardy Farris, the president of the United South-
position of branch president.
ern branch in Oxford. Farris, though, had
opted to participate in an early retirement
Vance testified that, as a result of her fail-
scheme from which Union Planters Corporation
ure to receive the Union Planters branch
refused to release him, making Vance the only
presidency, she lost between $7,500 and
viable candidate. Davis met with Vance and
$8,000 in bonuses and $4,050 in � 401(k)
asked for hiring recommendations from people
contributions. She claimed also to have lost
in the banking community. Vance's supervisor,
$3,500 in annual pay in her new job and
2

incurred $15,000 to $16,000 in health expenses
reviewing court on the entire evidence is
because of an inability to obtain insurance upon
left with the definite and firm conviction
transferring firms. A psychologist who
that a mistake has been made.
examined Vance and interviewed her friends,
testified that her failure to receive the
Davis v. Yazoo Co. Welfare Dep't, 942 F.2d
promotion caused her to suffer from
884, 886 (5th Cir. 1991) (internal citations and
depression, agitation, sadness, and shock.
quotation marks omitted). We review a ver-
dict under the "reasonable juror" standard.
At trial, Vance's counsel asked Davis why
The standard is that
he continued to solicit male candidates for the
branch presidency when it appeared that Vance
[t]he court should consider all of the ev-
was the only qualified applicant. Davis replied
idenceSSnot just that evidence which
that he wanted to hire the "the best guy, the
supports the nonmover's caseSSbut in a
best person, and I saying [sic] that generically."
light and with all reasonable inferences
Also at trial, the court denied Union Planters's
most favorable to the party opposed to
motion in limine to prevent Vance from asking
the motion [to overturn the jury
Davis any questions about previous
verdict]. If the facts and inferences
adjudications in which he was determined to
point so strongly and overwhelmingly in
have unlawfully discriminated against women
favor of one party that the [c]ourt
by paying them less than men. The court told
believes that reasonable men could not
Vance's counsel: "You may ask him if he had
arrive at a contrary verdict, granting of
ever been found to have discriminated against
a motion is proper.
women in this work place as far as pay is
concerned without going into the details or the
Merwine v. Board of Trustees, 754 F.2d 631,
name of a case or anything." Vance asked such
636-37 (5th Cir. 1985) (emphasis added).
a question of Davis, and he responded in the
affirmative.
A court should grant a FED. R. CIV.
P. 50(a) motion not only when the non-movant
II.
presents no evidence, but also when there is
This court has explained that
not a sufficient conflict in substantial evidence
to create a jury question.1 Importantly, this
[i]n a Title VII action that has been fully
articulation of the standard of review does not
tried on the merits, such that the district
require a showing of substantial evidence in
court has before it all the necessary evi-
support of the jury verdict (in the manner that
dence to make the ultimate finding of dis-
this court looks for substantial evidence in
crimination, the factual inquiry is whether
support of certain decisions by administrative
the defendant intentionally discriminated
agencies). Rather, the standard requires mere-
against the plaintiff. On review, this
ly a finding of a sufficient conflict in
court must therefore decide whether the
substantial (meant as a synonym for
ultimate finding of discrimination by the
district court was clearly erroneous. A
finding is clearly erroneous when al-
1 Travis v. Board of Regents, 122 F.3d 259,
though there is evidence to support it, the
263 (5th Cir. 1997) (citation and quotation marks
deleted; emphasis added).
3

"material") evidence. This can be restated as
especially in light of his subsequent ac-
requiring "sufficient material evidence to
tionsSShiring Carroll as President and offering
support the jury's verdict"SSthe reasonable-
Vance the number-two position. Vance also
juror standard.
testified that Davis told her he wanted to hire
a 40- to 50-year-old man for the number two
Evidentiary rulings are reviewed for abuse of
position because such a person would lend
discretion. See Jon-T Chems., Inc., 704 F.2d
stability and credibility to the bank.
1412, 1417 (5th Cir. 1983). The district
court's interpretation of title VII's limits on
Union Planters argues that these comments
liability is reviewed de novo. See United States
were "merely stray" and thus insufficient to
v. Santos-Riviera, 183 F.3d 367, 369 (5th Cir.),
constitute a basis for liability. We have held,
cert. denied, 120 S. Ct. 597 (1999).
however, that workplace remarks like Davis's
may constitute sufficient evidence of
III.
discrimination if the remarks are (1) related to
In reviewing a finding of sex discrimination
sex; (2) proximate in time to the employment
in a case tried to a jury, we examine the record
action; (3) made by an individual with
to determine whether sufficient material
authority over the employment decision; and
evidence supports a charge that the plaintiff
(4) related to the employment decision at
was treated unfavorably on the basis of sex and
issue. See Krystek v. University of S. Miss.,
that the employer's stated reasons are pre-
164 F.3d 251, 256 (5th Cir. 1999).
textual. See Rutherford v. Harris County,
197 F.3d 173, 181 (5th Cir. 1999). Vance
Davis's remark that he wanted to hire a
introduced sufficient evidence to support the
"mature man" is certainly related to sex, was
verdict.
said during the process of considering
candidates for the job, was uttered by the
During the search process, Davis ap-
individual who made the hiring decision, and
proached Ed Neelly, a retired branch president,
was obviously related to Vance's job prospects
and asked whether he wanted the job of Oxford
at the Oxford branch. Therefore, the comment
branch president. Neelly declined the position
qualifies as direct and material evidence of sex
and recommended Vance for the position.
discrimination.2 Even if Vance were the only
After Neelly turned down the job, Davis told
witness to testify about the statements at issue,
Neelly that he needed a "mature man in the
office in Oxford." Neelly testified that at the
time he assumed that Davis meant that he was
2 Cf. Haun v. Ideal Indus., Inc., 81 F.3d 541,
interested in hiring a "mature man" for the
546 (5th Cir. 1996) (holding that a company
number two position at the new bank. Neelly
president's instruction to human resources officials
then testified that in retrospect this assumption
that he did not want to hire older workers
was incorrect, i.e., that Davis appears to have
constitutes sufficient material evidence of age
wanted a "mature man" to head the branch.
discrimination); Portis v. First Nat'l Bank, 34 F.3d
325, (5th Cir. 1994) (holding that a supervisor's
The jury reasonably could have inferred that
statement to a female subordinate that she
this preference for "a mature man" at the bank
"wouldn't be worth as much as the men would be
colored his decision to hire Carroll over Vance,
to the bank" constituted direct evidence of sex
discrimination).
4

though she is not, that would not warrant
employer is rarely going to concede
taking the case out of the jury's hands.3
unambiguously that it intended to violate the
law.5 Because we lack the jury's opportunity
On the witness stand, Davis was asked why
to observe Davis's demeanor and hear his
he pursued a series of male candidates after it
voice, and because the statement corroborated
appeared t hat Vance was the only viable
Davis's comments that he wanted to hire a
candidate for the branch presidency. He re-
"mature man," or a 40- to 50-year-old man,
sponded, "I wanted to get the best guy, the best
there was sufficient material direct evidence of
person, and I saying [sic] that generically."
discrimination to allow a reasonable jury to de-
Vance argues that this "Freudian slip" on the
cide in Vance's favor.
stand evinced Davis's desire to hire a male.
Union Planters argues that Davis's remark was
This direct evidence is supported by
merely a slip of the tongue.4
material circumstantial evidence.6 For
example, Davis never spoke with Pete Boone,
The comment is susceptible to either
Carroll's former boss at Grenada Sunburst
construction. In title VII trials, though, the
Bank, about Carroll's qualifications. Boone
testified that had Davis contacted him, he
would have told him that Carroll should not
even be considered for the job. Davis testified
3 See id. at 329 n.10 (holding that "[t]he fact that
that he called Boone but that his calls went
Portis' case-in-chief consists solely of her own
unreturned. Boone's testimony contradicted
testimony does not prevent her from establishing
this.
intentional discrimination").
4 Union Planters appears to advocate an
The jury was entitled to believe Boone's ac-
extension of the "stray remark" caselaw to cover
count and conclude that Davis was less than
witnesses' statements at trial. It presented no
diligent in seeking information about Carroll's
instance in which a court has ever applied its "stray
qualifications. Davis's testimony concerning
remark" jurisprudence to a witness's trial testimony.
the recommendation he sought from Brown,
Indeed, there are at least three reasons why it would
be unwise to do so in this manner. First, the "stray
remark" jurisprudence is itself inconsistent with the
deference appellate courts traditionally allow juries
5 Cf. Aikens, 460 U.S. at 716 (noting that
regarding their view of the evidence presented and
"[t]here will seldom be `eyewitness' testimony
so should be narrowly cabined. Second, one of the
as to the employer's mental processes").
questions at issue in the Krystek testSSwhether the
remark is proximate in time to the employment
6 Citing Haas v. Advo Systems, Inc., 168 F.3d
decisionSS would always be answered in the
732, 734 n.2 (5th Cir. 1999), Union Planters seems
negative with respect to testimony at trial, even
to think that to prevail, Vance must provide direct
though words from the dock seem particularly
evidence of discrimination. This would be untrue
probative of actual state of mine.
even if Vance had not provided such direct
Third, in-court testimony, unlike a stray remark
evidence. See, e.g. Scott v. University of Miss.,
made in the workplace, allows the jury to evaluate
148 F.3d 493, 504 (5th Cir. 1998) (holding that
the context of the remark based on its observations
"[b]ecause direct evidence is rare in discrimination
of the witness's demeanor. We decline, therefore, to
cases, a plaintiff must ordinarily use circumstantial
extend the doctrine in this manner.
evidence to satisfy her burden of persuasion").
5

Vance's immediate supervisor, supports this
decision. See Rutherford, 197 F.3d at 184.
claim.
The jury heard credible evidence that
Brown knew both Vance and Carroll quite
Vance's administrative skills were at least as
well. Nevertheless, after Davis received
strong as Carroll's. The uncontradicted
Brown's "glowing" recommendation in support
evidence was that the branch Vance had
of Vance's receiving the job, Davis did not
helped start and later led had experienced
bother to discuss Carroll's qualifications with
dramatic increases in both size and profits.
Brown until after Carroll was hired. At that
Vance testified that she dedicated thirty
time, Brown told Davis that Carroll was "lazy,"
percent of her work time to administrative
"not challenged," and that Davis would have to
matters. The jury could infer from the
"light a fire under Carroll's ass" to ensure that
branch's success that Vance's administrative
he would perform his job.
skills were excellent.
Carroll's personnel file also indicated that he
On the other hand, Carroll was available to
had a tendency to procrastinate and miss
fill the branch presidency because he had been
deadlines, but Davis never asked to see that file.
demoted from his administrative position at the
The jury was entitled to infer from Davis's
Sunburst bank. The jury could infer from this
lackadaisical investigation of Carroll's
that Carroll's administrative skills did not mo-
qualifications and premature hiring of Carroll
tivate Davis to hire him.
that he was predisposed to select a man.
Davis admitted that he thought Vance
There also was uncontradicted evidence that
worked longer hours than did Carroll. The
Davis offered the presidency to Ed Neelly and
jury could infer that someone who would put
Butch Collums, two men who never applied for
more time into the complex task of merging
the position. The parties dispute whether Davis
two bank branches would be a better
also offered the job to Hardy Farris. The jury
administrator. Some evidence did suggest that
could reasonably infer from these actions that
Carroll's administrative skills were superior to
Davis was predisposed to hire a man and began
Vance's, but the evidence did not, by its
grasping at straws when it appeared that Vance
strength, disallow supported inferences in
was the only viable applicant. In sum, sufficient
Vance's favor.
evidence supports the finding that Union
Planters discriminated against Vance on the
IV.
basis of sex.
Union Planters claims this case is
"controlled" by Scott, in which a would-be
Sufficient evidence also supports the jury's
professor of legal writing sued after failing to
decision that pretext motivated Union
be named to the post, claiming age dis-
Planters's justifications for hiring Carroll over
crimination. She propounded but failed to es-
Vance. Union Planters argues that
tablish the argument that she was plainly better
administrative concerns were determinative in
qualified than the selected individual, who was
the decision. To prevail, Union Planters must
younger than the age-protected class of which
provide direct or circumstantial evidence to
she was a part; beyond this argument, she had
rebut that explanation for its employment
no evidence, direct or circumstantial, of age
6

discrimination. Id. at 497-98. In overturning
Vance's expert medical testimony by asserting
the verdict in favor of Scott, we held that "an
that because neither Neelly nor Carroll
employee's subjective belief of discrimination,
suffered psychological trauma when they lost
however genuine, cannot be the basis of judicial
their jobs, no reasonable fact finder could have
relief." Id. at 507 (citations omitted).
concluded that Vance suffered such an injury.
As Union Planters so colorfully notes,
Similarly, in Travis, we overturned a verdict
"[b]ankers lending the money of others should
because the only evidence that a hiring decision
be more resilient." We have discovered, how-
was motivated by sex bias was a comment,
ever, no caselaw supporting a "banker's
made seven years prior to the relevant
exception" to the rule that plaintiffs who suffer
promotion decision by a supervisor who had in
emotional distress can recover damages.
the intervening years retired and thus played no
role in the complained of failure to promote,
V.
that the plaintiff was not "tough enough" to fill
Union Planters contends that the district
a certain position. See Travis, 122 F.3d at 264.
court erred in admitting evidence that Union
As the court noted, this comment was a "stray
Planters suffered an adverse verdict against it
remark" in that it was made by a supervisor
in a 1990 pay discrimination case. We note
other than the one who made the relevant
initially that we evaluate the jury's findings
employment decision; it was made remotely
without regard to this testimony and conclude
from the time of that decision; and it did not
that, even in exclusion of this exchange, the
obviously call into question the issue of sex.
evidence supports the verdict.
Id. See also Krystek, 164 F.3d at 254, 256
(same).
The relevant evidence is as follows:
These cases do not control. Vance provided
Q. And in the past, you haveSSyou
both direct, non-stray-comment evidence that
have been found to discriminate
she had been discriminated against because of
against women, women loan
her sex and circumstantial evidence that
officers in their pay as against male
indicated that she was the only woman
officers; haven't you, sir?
president involved in the consolidation and the
only president not provided a place in the new
A. Yes, sir.
organization, though a place existed for her.
This evidence does not, but need not, establish
Q. All right, sir.
that Vance was "clearly better qualified." Rath-
er, her circumstantial evidence, with the direct
A. 1990, I think it was. I cannot recall
evidence (including a comment by the relevant
the exact date.
supervisor) that her supervisor wanted to hire
males provides sufficient evidence that she was
Union Planters raises two issues with respect
discriminated against because of sex.
to this colloquy. The first, that the admission
of this evidence constitutes a bill of attainder,
Union Planters also argues that the jury
is frivolous. A bill of attainder is, as the name
erred in awarding Vance damages for emotional
implies, a legislative action rather than a
distress. Union Planters attempts to undermine
judicial one. See SBC Communications, Inc.
7

v. FCC, 154 F.3d 226, 233 (5th Cir. 1998),
In EEOC v. General Dynamics Corp.,
cert. denied, 525 U.S. 1113, and cert. denied,
99 F.2d 113, 119 (5th Cir. 1993), we affirmed
525 U.S. 1113 (1999).
the admission of "arguably not relevant"
evidence that the plaintiff had filed prior
Union Planters's second argumentSSthat
discrimination lawsuits against his employers.
admission of the evidence violates FED. R.
Despite the danger that such evidence could
EVID. 404(b)7SSis more substantive. Vance in-
cause a jury to believe that the plaintiff was
troduced the evidence to show how Union
unreasonably litigious, we held that such
Planters treated the class of women employees.
evidence was appropriate, because the plaintiff
In the context of a title VII suit alleging racial
had testified that he had prevailed in a previous
discrimination, evidence concerning an
discrimination lawsuit.
employer's "general policy and practice with
respect to minority employment" "may be
Union Planters called Yolaine Couser, a fe-
relevant to any showing of pretext." McDon-
male bank officer, who testified that she had
nell Douglas Corp. v. Green, 411 U.S. 792,
not been discriminated against and that she had
804-05 (1973). Similarly, evidence that Union
never observed discrimination against women
Planters had been found to have discriminated
in her time at the bank. Davis also testified
against women in the past could help undermine
that he had hired a female to serve as Union
its argument that it chose not to hire Vance
Planters's anti-discrimination compliance offi-
only because of administrative concerns.8
cer. Because Vance is the party who first
raised the pattern-of-discrimination issue, Gen-
eral Dynamics is merely instructive, not
controlling. When a party has an opportunity
7 That rule reads in pertinent part:
to explore admitted evidence of prior acts
Evidence of other crimes, wrongs, or acts is
"through examination of its own witnesses"
not admissible to prove the character of a
and exercises that opportunity, the admission
person in order to show action in conformity
of potentially damaging evidence is not
therewith. It may, however, be admissible
reversible error. See Bradbury v. Phillips
for other purposes, such as proof of motive,
Petroleum Co., 815 F.2d 1356, 1365 (10th
opportunity, intent, preparation, plan, knowl-
Cir. 1987).
edge, identity, or absence of mistake or
accident.
Relatedly, Union Planters makes no
showing that the admission prejudiced it. It
8 See also McCorstin v. United States Steel
presented testimony from a female officer
Corp., 621 F.2d 749, 754 (5th Cir. 1980) (holding
stating that in the years she worked for the
that evidence of a pattern of terminating older work-
ers allowed a reasonable inference that plaintiff had
bank, she had never seen discrimination
been discharged on account of age); Dosier v.
against women. The jury might well have
Miami Valley Broad. Corp., 656 F.2d
assigned more weight to this evidence about
1295, 1300 (9th Cir. 1981) ("Dosier claims that the
post-settlement incidents were part of a continuing
pattern of discrimination. . . . [H]e is not prevented
(...continued)
from using those incidents as evidence of a
Valley. Evidence of prior acts may clearly be used
continuing pattern of discrimination by Miami
to establish the existence of a pattern or scheme.
(continued...)
See Rule 404(b), Federal Rules of Evidence.").
8

the firm's current practices than to Davis's brief
Cir. 1995), the court limited the damages
admission that his firm had discriminated on
assessed against a defendant based on the
one occasion in 1990. For these reasons, we
number of employees working for it at the
see no abuse of discretion in the decision to
time of the discriminatory firing. The district
admit the evidence in question.
court's interpretation of "current year" was
rejected also in Komorowski v. Townline Mini-
Mart & Restaurant, 162 F.3d 962, 965 (7th
VI.
Cir. 1998). There is no reason to define "cur-
Title VII limits damage awards based on the
rent year" to mean one thing in one part of
number of employees the employer had during
title VII and something else in another.9
the "current or preceding calendar year." 42
U.S.C. � 1981a(b)(3). If, as the district court
Sound policy analysis supports this reading
held, Union Planters had more than 500
of the statute. The best reason to use the
employees, its potential liability is $300,000. If,
"year of occurrence" is that any other
as Union Planters argues, it employed only
interpretation allows parties to engage in
approximately 140 people, its liability is only
gamesmanship by structuring companies, or
$100,000. These limitations on damages look
timing the progress of lawsuits, to maximize
to the number employed "in each of 20 or more
gain or to minimize loss.
calendar weeks in the current or preceding
calendar year." Id.
An additional reason is that we presume
that part of the reason for the liability cap for
A.
smaller corporations is that such entities can-
We must decide the meaning of "current or
not afford to hire the specially trained human-
preceding calendar year." The district court
resource personnel required to negotiate the
held that it refers to the year of judgment; it is
shoals of modern employment law. These
undisputed that at the time of judgment, Union
businesses are therefore provided some
Planters had more than 500 employees.
additional level of protection. Larger
companies, better equipped to hire the relative
Union Planters correctly contends that
expertise, are held to a more rigorous
"current year" refers to the year in which the
standard. This purpose would be defeated if
discriminatory acts took place. We have inter-
the size of the company were measured at the
preted "current year" to refer to the year in
date of verdict rather than the date of
which the alleged discrimination occurred.
commission of the suspect act.
See Dumas v. Town of Mount Vernon, 612 F.2d
974, 979 n.4 (5th Cir. 1980).
The district court emphasized that the "cur-
rent year" language interpreted in Dumas was
from a different part of title VII, and stated that
9 See Department of Revenue of Ore. v. ACF
no court has interpreted the "current year"
Indus., 510 U.S. 332, 342 (1994) (noting the
language of � 1981a(b)(3). The latter assertion
"normal rule of statutory construction that identical
is incorrect. In Hennessy v. Penril Datacomm
words used in different parts of the same act are
Networks, Inc., 69 F.3d 1344, 1348, 1354 (7th
intended to have the same meaning") (internal
quotation marks omitted).
9

of the employment action but did come into
B.
existence a few months thereafter, in July
The district court held that even if 1995
1995. The period from then to December 31,
were the "current year," Union Planters would
1995, is more than twenty weeks, so even
have had more than 500 employees:
though Union Planters Bank of Northeast
Mississippi did not exist at the time of the dis-
Furthermore, even if the court were to
criminatory act, it could qualify as Vance's
use the time of the discriminatory act as
would-be employer under title VII. If it were
the current year for the purposes of the
the relevant employer, then the applicable cap
statutory cap, the court would still find
on damages would be $100,000.
that the defendant had more than 500
employees. Union Planters Bank of
By denying Vance's post-verdict motion for
Nort heast Mississippi, which the
discovery regarding Union Planters's size, the
defendant asserts had no more than 140
district court failed to develop the record with
employees, did not even exist as of the
regard to several important facts. First, the
date of the discriminatory act. The
court's analysis, which held Union Planters
decision-maker, Pat Davis, was the
Corporation (the holding company that owned
president of First National Bank. The
Union Planters Bank of Northeast Mississippi)
entity to be formed, Union Planters Bank
to be the relevant employer, seems inconsistent
of Northeast Mississippi, consisted of
with the order dismissing Union Planters Cor-
banks belonging to three different
poration as a defendant. Second, the court
subsidiaries of Union Planters
failed to engage in the searching inquiry called
Corporation (specifically First National
for by Trevino v. Celanese Corp., 701 F.2d
Bank, Sunburst Bank, and United
397 (5th Cir. 1983), which is this circuit's
Southern Bank). There was no single
leading precedent on the size of an employer
subsidiary which could realistically be
for title VII liability purposes.
considered the employer for purposes of
the statutory cap. The allegedly
Under Trevino, the court must determine
discriminatory act was done on behalf of
whether nominally independent entitiesSSFirst
a large corporation by an agent of a large
National Bank, Sunburst Bank, and United
corporati on, with well over 500
Southern BankSSare a single employer for
employees. Accordingly, regardless of
purposes of title VII liability. If so, their total
how the term "current or preceding year"
employment should be aggregated.
is applied, the statutory limit on damages
should be set at $300,000.00.
Third, the record does not reveal who
would have been Vance's employer before
In 1995, Pat Davis ran First National Bank
July 1995, had she been offered the job.
and was charged with merging banks belonging
Looking to who employed Carroll between
to subsidiaries of First National Bank, Sunburst
March 15, 1995, and July 1, 1995, might
Bank, and United Southern Bank. The product
answer this question. The trier of fact would
of that merger, Union Planters Bank of
need to determine how many employees that
Northeast Mississippi, did not exist at the time
firm employed in 1995 and 1994.
10

Any of these factors could affect the
limitation on damages. Because the record is
insufficiently developed for us to engage in that
analysis, we remand for such a determination.
We therefore AFFIRM the judgment except
with regard to the interpretation of � 1981a-
(b)(3), VACATE that portion of the judgment,
and REMAND for further proceedings.
11