                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                      F I L E D
                         REVISED JULY 30, 2004
                                                                      June 28, 2004
                 IN THE UNITED STATES COURT OF APPEALS
                                                                  Charles R. Fulbruge III
                         FOR THE FIFTH CIRCUIT                            Clerk
                         _____________________

                             Nos. 03-10074
                              and 03-10220
                         _____________________

NEOMA SHAFER; ET AL.,

                                                                  Plaintiffs.

JUDITH ANN PARKS,

                                                     Plaintiff - Appellee,

                                 versus

ARMY & AIR FORCE EXCHANGE SERVICE;
UNITED STATES DEPARTMENT OF DEFENSE,

                                          Defendants - Appellants.
__________________________________________________________________

            Appeals from the United States District Court
                  for the Northern District of Texas

_________________________________________________________________

Before JOLLY, HIGGINBOTHAM, and DeMOSS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

     The Plaintiff-Appellee, Judith Ann Parks, was awarded over

$1,000,000 in compensatory damages and attorneys’ fees by the

district court. This award followed the district court’s wholesale

adoption of the factual findings and legal recommendations of a

report prepared by a special master.           A central dispute in this

confusing case concerns whether the special master exceeded his

authority   by   considering   claims   made    by   Parks   in   a   separate
lawsuit, which was never formally referred to the special master or

otherwise consolidated with the contempt proceeding arising from a

related lawsuit, which was properly before the special master.          We

conclude that the special master did exceed the scope of his

appointment by hearing, and addressing in his report, claims that

were not properly before him. It follows that the district court’s

adoption of the findings and recommendations relating to the

unreferred case constitutes reversible error. We therefore REVERSE

the judgment in favor of the plaintiff on those claims.        As to the

district court’s findings with respect to the claims that were

properly before the special master, we also REVERSE but on other

grounds.

                                      I

                                      A

     The genesis of this appeal is a very old Title VII sex

discrimination suit filed in 1976 against The Army and Air Force

Exchange   Service   (“AAFES”)   --   a   federal   instrumentality   that

operates Post Exchanges and Base Exchanges for military personnel.

That case, Shafer v. AAFES, 667 F.Supp. 414 (N.D.Tex. 1985), was

eventually settled in an agreement approved by the district court

in 1987.     The settlement agreement did not conclude the entire

case, however; the claims of four AAFES employees, including

Plaintiff-Appellee Parks, proceeded as individual discrimination

suits.     Parks’s individual case was eventually referred by the

district court to a special master, who recommended that Parks be

                                      2
awarded back pay, retroactive promotions, and other relief.                    The

district court adopted the master’s report and entered final

judgment on Parks’s claim in January 1988.              In pertinent part, the

judgment   ordered    AAFES   to   promote       Parks   to   pay      grade   UA14

retroactive to April 1981, to amend Parks’s personnel files to

reflect her promotion, and to give Parks “priority placement” into

a supervisory position; further, the judgment enjoined AAFES “from

any form of retaliation against Judith Ann Parks.”                  The judgment

was not appealed.

      In accordance with that judgment, AAFES promoted Parks to

grade UA14 and made her chief of one branch of the Information

Systems Directorate, Systems Development Division (“IS-D”).                    That

final judgment was anything but final, however, as far as the

dispute between Parks and AAFES is concerned.              Beginning in 1993,

Parks began once again to experience workplace incidents that she

contended were discrimination and retaliation.                   First, in early

1993, AAFES established a new directorate for Change Management and

needed to fill eight positions for Project Managers.                    Tom Saga,

Park’s immediate supervisor, asked several people, including Parks,

whether they were interested in the position.             Saga told Parks that

it would be a lateral UA14 position, and Parks therefore declined

it. Robert McFarland was then selected for the position, which was

soon after reclassified as a UA15 position.               Parks contends that

the   government     knew   the    new       position    would    be    UA15   but



                                         3
intentionally waited until after she had declined the job and

McFarland had accepted before it reclassified it.

     Parks also contended that the discrimination and retaliation

continued in 1994.   On her Performance Evaluation Report (“PER”)

for that year, which was completed by Saga and his superior, James

McKinney, Parks received a poor mark in a section (called the

“diamond”) that rated an employee’s relative promotion potential.

According to Parks, she was given a low score in the diamond so

that men could be promoted ahead of her.         Three men in the

Information Systems Directorate were promoted to UA15 in 1994, but

Parks was not.

      Finally, in May 1995, the curtain appeared to fall on the

long-running battle between Parks and AAFES when Parks accepted a

voluntary offer of early retirement made generally available to

AAFES’s employees in response to budget cuts.   Not so.   Despite the

voluntary nature of her retirement, however, Parks nevertheless

soon maintained that she was constructively discharge. She alleged

that her decision to quit was directly brought on by years of

discrimination, escalating retaliation, and the realization that

(had she remained at AAFES) her poor ratings would make any

promotion in the next several years highly unlikely.

                                B

     In this connection, Parks had earlier filed a series of

complaints with the AAFES’s internal EEO office, beginning in April

1994 and continuing through May 1995.   Additionally, in June 1994,

                                4
Parks began this present action -- she filed a motion to have AAFES

held in contempt of the 1988 Shafer judgment.          In this motion, she

asserted that AAFES had violated the 1988 judgment by: (1) failing

to    correct   personnel   records   to   reflect    Parks’s     retroactive

promotion, (2) failing to give her priority placement in a suitable

UA14 supervisory position within a reasonable time after the

judgment, and (3) retaliating against her by passing over her for

promotions to UA15 positions and giving her poor performance

evaluations.      The motion further stated that AAFES had “continued

to discriminate against Judith Ann Parks with regard to promotions

and had retaliated against her because of her participation in this

lawsuit,    the   Court’s   retroactive    promotion       of   her,   and   her

subsequent claims of discrimination and retaliation.”              The motion

asked the court to hold AAFES in contempt and to order the agency,

inter alia, retroactively to promote Parks to UA15, to provide her

with back pay to match the UA15 salary, and to pay her other

compensatory and punitive damages.

       On April 3, 1995, the district court appointed John Albach,

who had served as special master in the earlier Shafer proceedings,

to serve as the special master for the purpose of holding hearings

and making a report and recommendation to the court on Parks’s

contempt motion.      Invoking Rule 53 of the Federal Rules of Civil

Procedure, the district court issued a referral order, setting out

the    specific    claims   and   issues   before    the    special    master.



                                      5
Specifically, the order directed the special master to consider

Park’s “Motion to Hold the Defendants in Contempt.”             The order

further delineated the precise claims at issue in that motion as

set out by that motion:     to wit, (1) AAFES’ failure to correct

Park’s personnel records, (2) its failure to grant her priority

placement, and (3) its alleged retaliation and discrimination

against her.

     In August 1995, Parks filed a separate and independent Title

VII complaint styled Parks v. Perry. This occurred fourteen months

after filing   the   contempt   motion   and   four   months   after   that

contempt motion had been referred to the special master. The

complaint referred specifically to three incidents that allegedly

constituted discrimination and retaliation: (1) the selection of

McFarland instead of Parks for the UA15 Change Management position,

(2) the manipulation of Parks’s 1994 PER, and (3) the failure to

promote Parks to UA15 in May 1994.       The complaint stated that its

claims were “closely related” to Park’s contempt motion in Shafer,

and the complaint requested that it be joined with the contempt

proceeding pending before Judge Buchmeyer.            The complaint also

stated, however, that Parks “in no way represents or concedes that

her claims of contempt are affected or replaced by this lawsuit.”

Parks’s lawyer would later explain that the separate action was

filed to make sure that “all bases were covered.”

                                   C



                                   6
       What happened next to Parks v. Perry is a matter of great

confusion and dispute in this case.                  Accordingly to Parks, Judge

Buchmeyer consolidated Parks v. Perry with the contempt motion and

referred it to the special master.                      Yet, there is no formal

indication in the record that this ever occurred.                         The district

court docket sheet does show that Parks v. Perry was reassigned to

Judge Buchmeyer on September 26, 1995.                  Two days later, however,

Parks v. Perry was closed without any indication as to why, except

for    a   cryptic    final    docket      entry     stating:     “Case    closed   per

chambers.”         Strangely, this ambiguous docket entry is the only

official indication in the record concerning the fate of Parks v.

Perry.        Most     significantly,           no   formal      Rule     42(a)   order

consolidating Parks v. Perry with the contempt motion was ever

entered; nor was the Rule 53 order referring the contempt motion to

the master ever amended to include such expanded authority.

       The only other indication in the record concerning the status

of    Parks   v.    Perry    creates      even   more    procedural       incoherence.

Apparently, its confused status was the subject of discussion

between the        parties    and   the    special      master    in    January   1996.

Following a telephone call among them, Parks’s lawyer wrote to the

master that the parties had asked one of Judge Buchmeyer’s clerks

in October 1995 about the status of Parks v. Perry and were told

that “Parks v. Perry had been administratively closed because all

claims raised in Parks v. Perry were before the Court in Shafer.”


                                            7
A few days later, the master wrote to the parties, stating that he

had spoken to Judge Buchmeyer “regarding the question raised

concerning the status of Parks v. Perry” and that the judge had

stated that “all claims will be handled by the Special Master and

that Parks v. Perry is administratively closed.” He further stated

that this meant AAFES was “not required to file an answer to Parks

v. Perry and [Parks] must bring all of her claims before the master

in Shafer v. AAFES.”

     This statement by the special master, however, did little to

resolve   the   parties’   differing   interpretations   regarding   the

ongoing status of Parks v. Perry.       Parks apparently assumed that

the district court had, in fact, consolidated the two cases and

referred them both to the special master.        AAFES, on the other

hand, interpreted this statement to mean that, given the numerous

similar claims and issues presented by the contempt motion and

Parks v. Perry, Judge Buchmeyer had decided to suspend the latter

pending the resolution of the former, and that the special master

would be confined to an examination of Parks’s contempt claims

alone.

                                   D

     Significantly, it seems neither party was aware of the other

party’s differing conclusions regarding the status of Parks v.

Perry until later in the case.         In retrospect, these divergent

conclusions were understandable, given the fact that either of


                                   8
these interpretations can be drawn from the special master’s

statement, especially when no formal document existed (like a Rule

42(b) consolidation order or Rule 52 referral order) that would

indicate to either party that their respective understanding was

correct or incorrect. Accordingly, both parties proceeded with the

contempt suit before the special master, both apparently thinking

that they understood the nature of what that suit entailed.1

      Parks supplemented her original contempt motion by including

later retaliatory incidents, including her constructive discharge

claim.    The master eventually held evidentiary hearings in April

and May 1996 with testimony from over thirty witnesses.              Over two-

and-a-half years later, in December 1998, the master finally issued

his   eighty-page   report     and   recommendations.    The    master,   who

apparently assumed that Parks v. Perry had been consolidated with

the contempt    motion   and    referred   to   him,   made    the   following

recommendations, among others: (1) AAFES was in contempt of court

for failing to update all of its personnel records, entitling Parks

to $10,000; (2) AAFES had discriminated against Parks in the

selection of McFarland for the UA15 Change Management position,

entitling Parks to back pay and increased retirement benefits; (3)

AAFES retaliated against Parks for filing EEO complaints and the



      At some point in time, AAFES did become aware of the fact that
      1

the special master believed that both cases were before him. Once
it recognized this, it consistently reminded the master that this
was a contempt proceeding and that he should confine the scope of
his inquiry accordingly. See n. 4 infra.

                                      9
Shafer contempt motion, entitling Parks to $52,000 ($100 per day

for the period of the retaliation); (4) Parks was constructively

discharged, entitling Parks to front pay from the date of her early

retirement until the date of her previously scheduled retirement a

few years later, offset by retirement benefits; and (5) AAFES

should have its personnel policies reviewed by an outside agency,

a form of relief Parks had not requested.    In 2000, the district

judge adopted all of the master’s recommendations, awarding Parks

$315,098 in front-pay, back pay and other compensatory relief,

increased retirement benefits to reflect what they would have been

but for AAFES’ discrimination and her constructive discharge (an

amount estimated by AAFES to be worth over $600,000 in present

value terms), and over $400,000 in attorneys’ fees and costs.

     AAFES appealed, and this court vacated and remanded on the

grounds that Judge Buchmeyer did not review the hearing record

before adopting the master’s recommendations. Shafer v. AAFES, 277

F.3d 788 (5th Cir. 2002).    On remand, the district court again

adopted the master’s recommendations “in their entirety” in a terse

order.

     AAFES now appeals again.   In this appeal, it contends that

because Parks v. Perry was not properly before the special master,

the district court erred in adopting the special master’s findings

and recommendations with respect to any claims arising from that




                                10
separate Title VII suit.2      As to the remaining claims related to

the contempt proceedings, AAFES asserts that we either should

dismiss them on jurisdictional grounds or reverse and render

because these claims are unsupported by sufficient evidence.

                                      II

     As an initial matter, we must determine whether Parks v. Perry

was properly before the special master and, by extension, the

district court.      Performing this task, however, is unusually

complicated.    The master apparently believed, as did the district

court, that Parks v. Perry had been consolidated with the contempt

action   and   referred   to   him.        Curiously,    however,   there   is

absolutely no formal or informal record evidence to indicate that

consolidation and referral ever occurred.               In particular, as we

have noted, there is no Rule 42(a) order officially consolidating

the cases, see Fed. R. Civ. P. 42(a), nor, despite clear language

in the Federal Rules requiring such, is there a Rule 53 order

referring the Parks v. Perry claims to the special master.3

     2
      AAFES made the same contention in its first appeal to this
court. However, because this court was forced to remand the case
on other grounds, it never addressed this question in its decision.
Shafer, 277 F.3d at 790 n.1.
     3
      Rule 53(b) of the Federal Rules of Civil Procedure mandates
that a district court referring a case to a special master must
comply with several procedural requirements. Chief among them is
the requirement that the court produce a written order referring
the case to a special master that states and defines the scope of
the master’s duties and limits, if any, on his authority. See Fed.
R. Civ. P. 53(b)(2). There is such a referral order in this case
– the original order entered approximately four months before Parks
v. Perry was filed, referring the pending contempt motion to the

                                      11
     This   case     is   unusual   in   another   important   way    as   well.

Although as a general matter, the failure to comply with formal

procedural requirements is not always grounds for reversing a

judgment, in this case the failure substantially prejudiced one of

the parties.        This prejudice against AAFES manifested itself in

three ways:

     First, the district court’s failure to provide adequate notice

misled AAFES as to which claims were actually before the special

master   and   as    to   the   perimeters    of   his   authority.    It   was

reasonable for AAFES to conclude that Parks v. Perry had been

suspended pending the resolution of similar claims and issues in

the present contempt action.4        As a result of this confusion, AAFES


special master. That order, however, specifically and explicitly
confines the authority of the special master to consider the
“Motion to Hold Defendants in Contempt.” Indeed, nothing in that
order, which was never amended, grants the special master the
additional authority to hear the claims from Parks v. Perry.
     4
      Parks takes issue with AAFES’ assertion that it reasonably
misunderstood the district court’s consolidation and referral here.
She claims that AAFES is simply trying to get another bite at the
apple when it lost the first time around. However, we see nothing
in the record to indicate that AAFES ever wavered in its belief
regarding the nature of this contempt proceeding. Indeed, AAFES
repeatedly reminded the special master that this was a contempt
proceeding, not a Title VII action; that the special master lacked
jurisdiction over Parks discrimination claims in this contempt
proceeding because the judgment alleged to have been violated only
enjoined retaliation and not discrimination; and that the proper
standard of proof in this contempt proceeding was clear and
convincing evidence. Moreover, the only evidence to which Parks
can point as suggesting that AAFES understood that Parks v. Perry
had been consolidated is unpersuasive.     She notes that in June
1995, AAFES refused to pursue administratively the EEO complaints
because the issues raised in those complaints were before the court
in the pending contempt action. However, at the time AAFES took

                                         12
did not pursue rights it would have had with respect to the Parks

v. Perry Title VII action.5        The most obvious of these was its

right to request a jury trial on the Parks v. Perry claims -- a

right whose exercise it was denied by the district court’s failure

to adequately inform it that Parks v. Perry had been consolidated.6

     Second,   the   effect   of   the   district   court’s   failure   to

delineate the claims before the special master carried over into

the special master’s report as well; indeed, at times, he seemed to

have been confused regarding the scope of the task before him.

This confusion resulted in the failure of the special master to



that position, Parks v. Perry had yet to be filed. (It was filed
two months later, in August 1995).    Thus, this position is not
indicative of AAFES’ awareness that Parks v. Perry had been
consolidated with the contempt action.
     5
      For this reason, we also reject Parks’s argument that AAFES
cannot complain on appeal about the district court’s consolidation
and referral of Parks v. Perry when it did not object “at the time
of consolidation and referral.” AAFES did not object precisely
because it was unaware that the case had been consolidated and
referred; indeed, there was no consolidation and referral. As we
noted earlier, from the beginning of this case until its closing
arguments to the special master, AAFES continued to treat this case
as a contempt proceeding and consistently reminded the special
master of that fact. And although it is true that this precise
objection was not raised to the district court after the master had
presented his report, it was raised immediately after in the first
appeal to this court and, therefore, was before the district judge
when he made his ruling that is the subject of this appeal.

     In a Title VII action, if a complaining party seeks
     6

compensatory or punitive damages -- as Parks clearly sought in her
Parks v. Perry complaint here -- “any party may demand a trial by
jury.” 42 U.S.C. § 1981a(c). Because the district court did not
adequately notify AAFES that Parks v. Perry had been consolidated
with the present contempt action, AAFES understandably saw no
reason to invoke this right and thus did not.

                                    13
distinguish between the two types of claims before him and caused

him to apply an incorrect legal standard.          Specifically, while his

report states that Parks v. Perry was “transferred to this court,”

it proceeds generally to analyze the claims as though they were

part of the same suit, seldom acknowledging which claims were part

of which action and why.           The Supreme Court and this court,

however,    have   stressed       frequently     the    importance      of   not

intermingling consolidated claims in this fashion.                See, e.g.,

Johnson    v.   Manhattan   Ry.    Co.,    289   U.S.   479,   496-97    (1933)

(“[C]onsolidation is permitted as a matter of convenience and

economy in administration, but does not merge the suits into a

single cause, or change the rights of the parties.”);              Frazier v.

Garrison I.S.D., 980 F.2d 1514, 1532 (5th Cir. 1993) (“[A]ctions

maintain their separate identity even if consolidated.”); McKenzie

v. U.S., 678 F.2d 571, 574 (5th Cir. 1982) (“[C]onsolidation does

not cause one civil action to emerge from two.”) Instead, courts

have emphasized that following consolidation, it is vital that “the

two suits retain their separate identities” even to the point that

each requires “the entry of a separate judgment.”              Miller v. U.S.

Postal Service, 729 F.2d 1033, 1036 (5th Cir. 1984).             This strict

segregation of merged cases is necessary to prevent consolidation

from “depriv[ing] a party of any substantial rights that he may

have had if the actions had proceeded separately.”             Id.

     The failure properly to segregate the two actions in this case

had precisely this effect.          By failing to maintain the cases’

                                      14
separate identities, the special master often blurred, or blended,

the distinctive legal differences between a contempt proceeding and

a Title VII action.      The most notable example of this error

concerns the standard of proof the special master applied to claims

of retaliation raised by Parks in her original contempt motion.7

Because these were contempt action claims, Parks should have been

required to prove them by clear and convincing evidence.            See,

e.g.,    U.S. v. City of Jackson, Miss., 359 F.3d 727, 731 (5th Cir.

2004).   Instead, however, the special master seems to have applied

Title VII’s    preponderance   of   the evidence   standard8   to   these

contempt action claims that were not part of the Parks v. Perry

suit.9   AAFES was thereby deprived of “substantial rights that [it



     7
      Both the contempt motion and Parks v. Perry contained
allegations of retaliation. However, the special master based his
finding of retaliation on his conclusion that AAFES had retaliated
against Parks for her filing of the contempt motion and the EEO
complaints, neither of which were among the claims listed in the
Parks v. Perry complaint. Accordingly, they necessarily would have
to have been part of the contempt action, which sought to hold
AAFES in contempt for violating the more general anti-retaliation
portion of the 1988 Shafer judgment. (That judgment had enjoined
AAFES from “any form of retaliation” against Parks.)
     8
      Under Title VII, a plaintiff prevails by demonstrating a
defendant violated the statute by a preponderance of the evidence.
See, e.g., Desert Palace, Inc. v. Costa, 539 U.S. 90, 99 (2003)
     9
      The special master concluded that the evidence “suggested”
that AAFES was guilty of retaliating against Parks for filing the
contempt motion and the EEO complaints. This lenient standard of
proof is inconsistent with the clear and convincing standard, which
requires evidence “so clear, direct and weighty and convincing as
to enable the fact finder to come to a clear conviction, without
hesitancy.” Travelhost, Inc. v. Blandford, 68 F.3d 958, 961 (5th
Cir. 1995) (internal quotation marks omitted).

                                    15
would] have had if the actions had proceeded separately.”    Miller,

729 F.2d at 1036.

     Finally, the district court’s failure adequately to notify

AAFES that it had consolidated Parks v. Perry and referred it to

the special master deprived AAFES of its right under the federal

rules to receive notice of and object to the referral of matters to

a special master.    Rule 53 permits the district court to expand the

initial mandate of the special master, but only by amending the

referral order and “giving notice to the parties and an opportunity

to be heard.”    Fed. R. Civ. P. 53(b)(4).   None of these procedures

were followed here, however; not only was the original referral not

amended but the district court never notified the parties of its

purported referral of Parks v. Perry to the special master, and

obviously there was never an opportunity to respond.10

     Thus, for the foregoing reasons, we conclude that the district

court’s failure to comply with the formal requirements of the

federal rules directly produced a series of material errors in this

case.     AAFES was never put on notice that Parks v. Perry had been

consolidated and referred and it adopted the reasonable belief that


      All of these factors are quite aside from compelling
     10

questions raised by the government at oral argument regarding
whether an Article III judge has the authority or power to
nonconsensually refer an individual Title VII claim to a non-
Article III special master for a full report and recommendation --
effectively, a trial on the merits from beginning to end. Because
we reverse on other grounds, it is unnecessary for us to address
this issue. We note, however, that we see no reason that Parks v.
Perry, if litigated, should not be tried by a district court
without assistance from a special master.

                                  16
it had not. As we have indicated, following this reasonable belief

deprived AAFES of substantial rights it would have had if the

district court had adhered to the proper procedures.   We therefore

REVERSE the district court’s judgment on those claims raised in the

Parks v. Perry action.    Specifically, we reverse the district

court’s judgment that AAFES had discriminated against Parks by

selecting McFarland for the open UA15 position.11

                               III

     Having concluded that the district court erroneously adopted

the special master’s finding that AAFES had discriminated against

Parks, we have reversed that aspect of the district court judgment.

However, four other separate elements of that judgment still

remain.   These elements include the district court’s adoption of

the following findings and recommendations of the special master:

(1) that AAFES had retaliated against Parks for filing the contempt

motion and EEO complaints, entitling her to compensatory damages;

(2) that this retaliation led to her constructive discharge,

entitling Parks to compensatory damages, back pay, front pay, and

related benefits; (3) that AAFES be fined $10,000 for failing to

update Parks’ personnel records pursuant to the Shafer judgment;




      Of the five basic findings and recommendations made by the
     11

special master in his report and then adopted by the district
court, only this one arises out of the Parks v. Perry suit.
Accordingly, this is the only specific element of the district
court’s judgment affected by our conclusion that Parks v. Perry was
not properly before the special master.

                                17
and (4) that AAFES submit to an outside audit of its personnel

policies.

     We will examine each of these elements in turn.            However,

before doing so, we must note that a necessary correlate to our

conclusion that Parks v. Perry was not before the special master is

that the case before us is fundamentally a contempt action.        It is

in this context -- the context of a contempt action -- that our

examination of these remaining elements will proceed.

                                    A

     First, the special master found that AAFES was in contempt of

the court’s order in Shafer, because it had retaliated against

Parks    by   manipulating   her   performance   evaluations,   thereby

effectively ensuring she would never be promoted.        He concluded

that Parks was thus entitled to $52,000 in compensatory damages.

This recommendation was adopted with little comment by the district

court.

     To establish civil contempt, the moving party bears the burden

of proving by “clear and convincing” evidence that the alleged

contemnor was aware of and violated a “definite and specific order

requiring him to perform or refrain from performing a particular

act or acts.”     Travelhost, 68 F.3d at 961.     Clear and convincing

evidence is “that weight of proof which ‘produces in the mind of

the trier of fact a firm belief or conviction as to the truth of

the allegations sought to be established, evidence so clear, direct

and weighty and convincing as to enable the fact finder to come to

                                   18
a clear conviction, without hesitancy, of the truth of the precise

facts’ of the case.” In re Medrano, 956 F.2d 101,                     102 (5th

Cir.1992) (quoting Cruzan by Cruzan v. Director, Missouri Dept. of

Health, 497 U.S. 261, 285 n.11 (1990)).

     Ordinarily, we would review the district court’s factual

findings for clear error.      Travelhost, 68 F.3d at 961.            However,

because,    as   indicated   above,    the    special   master   --    and   by

extension, the district court -- applied the wrong standard of

review to Parks’s retaliation claims, we review the district

court’s factual findings de novo.            See Medrano, 956 F.2d at 102

(holding that when a district court bases its findings of fact upon

an erroneous legal standard the appellate court reviews the record

de novo).

     The special master and the parties have assumed that the law

of retaliation under Title VII provides guidance in determining

whether AAFES retaliated against Parks within the meaning of the

1988 judgment.     Under Title VII law, a retaliation claim requires

proof that (1) the employee engaged in protected EEO activity, (2)

the employee suffered an adverse employment action, and (3) a

causal connection exists between the protected activity and the

adverse employment action.       See, e.g., Mattern v. Eastman Kodak

Co., 104 F.3d 702, 705 (5th Cir. 1997).                 The special master

concluded that the evidence before him was sufficient to establish

each of these elements.      Having reviewed the record ourselves de



                                      19
novo, however, we conclude Parks failed to establish this third

element by clear and convincing evidence.

     The employer conduct providing the basis for the special

master’s conclusion that AAFES unlawfully had retaliated against

Parks was a series of formal reprimands issued to Parks by her

immediate supervisor, Tom Saga.        These reprimands began in April

1994 and were issued on multiple occasions and for a variety of

reasons,   including   taking   excessively     long   lunches   without

permission, applying her makeup at her desk during working hours,

and sleeping at her desk during working hours.         Ultimately, these

reprimands and the underlying behavior culminated in Saga assigning

Parks a mediocre performance rating in her yearly 1995 review,

which had a negative impact on her prospects for promotion.

     At trial, Parks apparently did not take specific issue with

AAFES’ contention that she engaged in these various types of

behavior; instead she contended that Saga used her behavior as a

pretext for his retaliatory intentions. Accordingly, she presented

evidence that she had been singled out and was reprimanded for

conduct that other similarly-situated employees were not.

     The weak link in Parks’s case, however, is that she offered

little evidence of a causal link between these reprimands and any

protected activity.    Not only did she fail to provide evidence of

animus on the part of Saga, she failed to produce any evidence

that, at the time Saga was alleged to have begun his “systematic



                                  20
harassment and retaliation campaign,” he was aware that Parks had

filed any EEO claims or her Shafer contempt motion; indeed, the

only evidence directly on this point shows that Saga did not become

aware of these facts until September 1994.12                 After September 1994,

the evidence does not show any significant change in either the

attitude or the disciplinary conduct of Saga towards Parks.                    To be

sure, there was only one more -- in November, when Parks had again

taken     an    extended    lunch     without       first   receiving   permission.

Moreover, despite the fact that Saga’s ultimate decision several

months later to assign Parks a mediocre performance rating in her

annual review occurred after he had been made aware of her EEO

filings, that decision appears to be based in large part on the

disciplinary record Parks had compiled prior to the time that Saga

became aware of her protected activities.                       While such slight

evidence of a causal connection might arguably have some weight

under     a    preponderance     of     the    evidence     standard,   we   have   no

hesitancy in concluding that such evidence is not so “clear, direct

and weighty and convincing as to enable the fact finder to come to

a clear conviction, without hesitancy” that a causal connection

exists between Saga’s reprimands and Parks’s protected activities.

Medrano,       956   F.2d   at   102.         In   this   contempt   proceeding,    we

therefore conclude that the special master’s finding that AAFES

     12
       Although Saga knew about Parks’s participation in the Shafer
case years earlier, the special master recognized that this alleged
campaign of retaliation, which began in 1994, could not be
connected to activities that concluded some six years earlier.

                                              21
retaliated against Parks is unsupported by sufficient evidence and

REVERSE and RENDER.     We similarly REVERSE and RENDER with respect

to the special master’s corresponding conclusion that Parks was

constructively discharged.13

                                        B

      Next, the special master found that AAFES was in contempt of

court for failing to update its personnel records, and recommended

that Parks be awarded $10,000 as “costs.”              This recommendation was

adopted without comment by the district court. AAFES contends that

this award is an improper criminal contempt sanction and must be

voided.     We agree.

      As   AAFES   notes,   a   civil       contempt    fine    must   be    either

compensatory or coercive. International Union, United Mine Workers

of America v. Bagwell, 512 U.S. 821, 829 (1994); see also American

Airlines, Inc. v. Allied Pilots Ass'n, 228 F.3d 574, 585 (5th Cir.

2000).     This fine is neither.       It is not coercive because it does

not   provide   AAFES   with    the    “opportunity      to    purge,”      i.e.,   a

“subsequent     opportunity     to    reduce   or   avoid      the   fine   through



      To prove constructive discharge, “a plaintiff must establish
      13

that working conditions were so intolerable that a reasonable
employee would feel compelled to resign.”        Faruki v. Parsons
S.I.P., Inc., 123 F.3d 315, 319 (5th Cir. 1997).       The master’s
finding that AAFES had subjected Parks to a campaign of retaliation
formed the basis for his conclusion that Parks’s working conditions
were intolerable, and thus, that she had been constructively
discharged.   As we have concluded that there is not clear and
convincing evidence to support a finding of retaliation, there is
no longer a basis for concluding that Parks had been constructively
discharged.

                                        22
compliance.”    Bagwell, 512 U.S. at 829.            It is not compensatory

because it is not based on any evidence of loss.                 The special

master explicitly found that Parks failed to prove she was damaged

by her unamended personnel records.          Moreover, despite the special

master’s characterization of the fine as costs, it cannot refer to

Parks’s attorneys’ fees, which had been allowed separately.             Thus,

because the fine is not compensatory or coercive, it amounts to a

punitive, criminal sanction.         Id.    Pursuant to 42 U.S.C. § 2000h,

however, criminal contempt fines arising from Title VII proceedings

may not exceed $1,000.          Furthermore, such criminal fines must be

accompanied by the procedural protections available in ordinary

criminal contempt proceedings, including a finding of criminal

intent, proof beyond a reasonable doubt, and the right to a trial

by jury.    42 U.S.C. § 2000h; see also Young v. United States ex

rel. Vuitton, 481 U.S. 787, 798-99 (1987).                 The lack of such

procedural protections, coupled with the fact that the fine here

exceeded the statutory limit of $1000, requires that we REVERSE the

district court’s award of $10,000 to Parks.

                                       C

     Finally, “[i]n the light of [his] findings and recommendations

. . . regarding the employment practices of AAFES,” the special

master recommended that an outside agency be appointed to conduct

a study of AAFES’ personnel policies.               This recommendation was

adopted without comment by the district court. AAFES contends that

because    Parks,   who   has    departed   AAFES    in   retirement,   lacked

                                      23
standing   to   seek   this   remedy,    the   district   court   lacked

jurisdiction to enter an injunction requiring such an audit.          We

agree.

     In Armstrong v. Turner Industries, Inc., 141 F.3d 554, 563-64

(5th Cir. 1998), we held that a plaintiff who has merely alleged a

past statutory violation and does not assert any likelihood that

she will be subjected to a similar violation in the future or

purport to represent a specific class of individuals that is in

danger of discrimination from the defendant lacks the standing to

seek injunctive relief. Parks has acknowledged that her retirement

from AAFES means that injunctive relief in this case would not

benefit her in any way.       In addition, we find nothing in her

pleadings suggesting she is seeking such injunctive relief on

behalf of a specific class of individuals in danger of continued

discrimination by AAFES. Indeed, such class-wide injunctive relief

was never even requested by Parks in this case but was recommended

sua sponte by the special master.       Accordingly, we find that Parks

lacks standing to seek any injunctive relief and therefore REVERSE

the district court’s order that AAFES be audited by an outside

agency.

                                  IV

     One final portion of the district court’s judgment in this

case needs to be addressed.      The district court concluded that

Parks was the prevailing party in this case, awarding her over



                                  24
$400,000 in attorneys’ fees.       However, given our complete reversal

of the district court’s judgment in this case, it is clear that

Parks is no longer a prevailing party.        Accordingly, the district

court’s award of attorneys’ fees is also REVERSED.           42 U.S.C. §

2000e-5(k).

                               CONCLUSION

     The judgment entered by the district court in this case

adopted the following findings and recommendations of the special

master in their entirety: (1) that AAFES had discriminated against

Parks in the selection of McFarland for the UA15 Change Management

position, entitling Parks to compensatory relief, back pay and

increased retirement benefits; (2) that AAFES retaliated against

Parks for filing EEO complaints and the Shafer contempt motion,

entitling Parks to $52,000 in compensatory damages; (3) that Parks

was constructively discharged, entitling Parks front pay, back pay

and related increased benefits; (4) that AAFES was in contempt of

court for failing to update all of its personnel records, entitling

Parks to $10,000; and (5) that AAFES should have its personnel

policies reviewed by an outside agency.        The district court also

awarded Parks attorneys’ fees.

     Today,   we   reverse   the   district   court’s   judgment   in   its

entirety.   We have concluded that the district court’s adoption of

the special master’s findings regarding the discrimination claims

made in Parks v. Perry was erroneous as this case was not properly



                                     25
before the master.14   We have concluded that the special master’s

finding that AAFES retaliated against Parks and constructively

discharged her, thereby placing it in contempt of an earlier order

of this court, is unsupported by sufficiently clear and convincing

evidence.   We have rejected the district court’s award of $10,000

and its injunction that AAFES submit to an independent audit on

statutory and jurisdictional grounds.    Finally, as Parks is no

longer the prevailing party, we have concluded she is no longer

entitled to attorneys’ fees.     Accordingly, the judgment of the

district court is REVERSED, and judgment is RENDERED for AAFES.

                                            REVERSED and RENDERED.




      We note that we dismiss these Parks v. Perry claims without
     14

prejudice. While Parks v. Perry has been administratively closed,
Parks is free to petition the district court to reopen the case and
litigate the claims raised therein.     The remaining part of the
judgment is dismissed with prejudice.

                                26
