                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                   July 28, 2004
                      _____________________
                                                         Charles R. Fulbruge III
                            No. 03-41216                         Clerk
                          Summary Calendar
                       _____________________

                   TERRY VAUGHN; YVETTE HOLMAN,

                      Plaintiffs - Appellees,

                              versus

                      SABINE COUNTY, ET AL.,

                            Defendants,

                          SABINE COUNTY,

                      Defendant - Appellant.
_________________________________________________________________

           Appeal from the United States District Court
            for the Eastern District of Texas, Beaumont
                District Court Cause No. 1:01-CV-914
_________________________________________________________________

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.1

EDWARD C. PRADO, Circuit Judge.

     Appellees Terry Vaughn and Yvette Holman sued appellant

Sabine County for employment discrimination, under Title VII of

the Civil Rights Act of 1964, after not being rehired by

appellant Sabine County’s newly-elected Sheriff.    The plaintiff-

appellees alleged that they were not rehired as deputy sheriffs

because they are women.   Ultimately, a jury agreed and awarded

     1
      Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.

                                  1
Vaughn $61,000.00, and Holman $42,000.00, in front pay.     The jury

also awarded each plaintiff $100,000.00 in past and future mental

anguish damages.   The district court, however, reduced the awards

for mental anguish damages to Title VII’s statutory cap of

$50,000.00.2   The district court also awarded Vaughn $14,139.40,

and Holman $14.689.40, in front pay; the district court awarded

the plaintiffs $48,975.20 in attorney’s fees and costs.     Sabine

County challenges these awards on appeal.

                        Evidence of Pretext

     At the conclusion of the plaintiffs’ case, and again at the

conclusion of the evidence, Sabine County moved for judgment as a

matter of law.   After the trial, Sabine County moved for a new

trial.   In each case, Sabine County argued that the verdict was

against the great weight of the evidence.     The district court

denied each motion.

     As its first issue, Sabine County challenges the district

court’s denial of its motions for judgment as a matter of law and

for a new trial.   Sabine County asserts that there was not enough

evidence to present the case to the jury, and that a reasonable

jury could not have rendered a verdict in favor of the plaintiffs

from the evidence presented at trial.

     We review the denial of Sabine County's motions for judgment




     2
      See 42 U.S.C. § 1981a(b)(3).

                                 2
as a matter of law de novo,3 applying the same standard as the

district court.4   We review the denial of a motion for a new

trial for abuse of discretion.5   Because Sabine County did not

introduce any new evidence relevant to a finding of

discrimination between its last motion for judgment as a matter

of law and its motion for a new trial, we need not consider

Sabine County’s argument about the motion for new trial if the

rulings on the motions for judgment as a matter of law were

proper.

     Additionally, we forgo a discussion of the burden-shifting

process that occurs during the trial of an employment

discrimination case because the dispute has been fully

adjudicated by the fact-finder.   “When, as here, a case has been

fully tried on its merits, we do not focus on the McDonnell

Douglas burden-shifting scheme.   Instead, we inquire whether the

record contains sufficient evidence to support the jury's

ultimate findings."6



     3
      See Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 188 F.3d
278, 285 (5th Cir. 1999).
     4
      See Aetna Cas. & Sur. Co. v. Pendleton Detectives of Miss.,
Inc., 182 F.3d 376, 377 (5th Cir. 1999).
     5
      Industrias Magromer Cueros y Pieles v. La. Bayou Furs Inc.,
293 F.3d 912, 918 (5th Cir. 2002).
     6
      Rutherford v. Harris County, 197 F.3d 173, 180-81 (5th Cir.
1999) (quoting Smith v. Berry Co., 165 F.3d 390, 394 (5th Cir.
1999)).

                                  3
     We need not parse the evidence into discrete segments
     corresponding to a prima facie case, an articulation of a
     legitimate, nondiscriminatory reason for the employer's
     decision, and a showing of pretext. “When a case has been
     fully tried on the merits, the adequacy of a party's showing
     at any particular stage of the McDonnell Douglas ritual is
     unimportant.”7

“If the defendant properly moved for judgment as a matter of law

at the conclusion of all evidence . . ., the standard on appeal

for evaluating the sufficiency of the evidence is whether the

evidence, considered in the light most favorable to the verdict,

has such quality and weight that reasonable and fair-minded

persons could reach the same conclusion.”8   The court should

grant a motion for judgment as a matter of law when there is not

a sufficient conflict in evidence to create a jury question.9        “A

mere scintilla is insufficient to present a question for the

jury.”10

     Sabine County maintains that it did not rehire the

plaintiffs because they scored poorly in front of an interview

board convened by the newly-elected Sheriff Maddox.   The

plaintiffs, however, alleged that the interview board was merely

a vehicle to legitimize illegal employment discrimination.      We


     7
      Id. (quoting Travis v. Bd. of Regents of Univ. of Tex.
Sys., 122 F.3d 259, 263 (5th Cir. 1997)).
     8
      McKenzie v. Lee, 259 F.3d 372, 374 (5th Cir. 2001).
     9
      See Travis, 122 F.3d at 263.
     10
      EEOC v. La. Office of Cmty. Servs., 47 F.3d 1438, 1443
(5th Cir. 1995).

                                4
will treat Sabine County's assertion that the plaintiffs were not

the most qualified for the full-time deputy positions as

determined by the interviewing board as a presumably legitimate,

nondiscriminatory reason for not rehiring the plaintiffs.        Thus,

our task in this de novo review is to determine whether the

record contains sufficient evidence for a reasonable jury to

determine that Sabine County’s stated reason for not rehiring the

plaintiffs was pretext for discrimination.11

     The record supports the jury’s determination that Sabine

County’s reason for not rehiring the plaintiffs was pretext for

discrimination.     During trial, Vaughn and Holman testified that

they were required to interview before an interview board as a

precondition for being rehired as deputies for the Sabine County

Sheriff’s Department.     Vaughn and Holman explained that after the

interview process, Sabine County sent out letters telling them

they were not selected for re-employment.       The plaintiffs

maintained that the letters they received were different from the

letters sent to men who applied for deputy positions.

     Although Sheriff Maddox maintained during the EEOC

investigation of the plaintiffs’ EEOC charge that he sent the

same letter to all rejected applicants, the evidence at trial

showed the letters sent to Holman and Vaughn were different from

the letters sent to male applicants.     The letters sent to male


     11
          See Rutherford, 197 F.3d at 180-81.

                                   5
applicants whom Sabine County did not hire invited them to join a

reserve program from which Sabine County would select additional

deputies as the need arose.   The letters sent to the plaintiffs

did not contain an invitation to join the reserve program.12

Sheriff Maddox testified during trial that the difference in the

letters was merely an oversight.

     In addition to the rejection letters, other evidence

presented at trial placed Sabine County’s stated reason for not

rehiring the plaintiffs into question.   The evidence showed that

Sabine County used the interview board process only one time—when

it did not rehire Vaughn and Holman.   Sheriff Maddox explained

that he composed his interview board primarily from citizens

untrained about what makes a competent police officer.     Since

that time, Sabine County hired a male from the reserve program

which Vaughn and Holman were not invited to join.   That

applicant’s previous interview board score was lower than

Holman’s score.

     Sabine County’s previous Sheriff testified that he believed

the plaintiffs are more qualified than some of the individuals

Sheriff Maddox actually hired.   Deputy Sheriff Wayne Davison

testified that the interview board seemed to fail to recognize

qualities important to competent deputies as the board ranked him

4 out of a possible score of 5 despite his 27 years of

     12
      The plaintiffs introduced the actual letters they received
from Sheriff Maddox.

                                   6
experience.     Lastly, the Chief Deputy testified that he turned

down another job offer prior to appearing before Sabine County’s

interview board and felt pretty comfortable that he would be

Chief Deputy before the board even convened.

     This testimony and the rejection letters constitute

circumstantial evidence of pretext.     Viewing this evidence

favorably to the verdict, reasonable and fair-minded jurors could

conclude that Sabine County’s stated reason for not rehiring the

plaintiffs was pretext for discrimination.     As a result, the

district court did not err by denying Sabine County’s motions for

judgment as a matter of law or its motion for new trial.

                        Mitigation and Back Pay

     As its second issue, Sabine County asserts the district

court erred by entering judgment for the jury’s award of back pay

because the plaintiffs failed to mitigate their damages. Under

Title VII, a plaintiff may receive back pay as long as she uses

reasonable diligence in finding substantially equivalent

employment.13    Whether the plaintiff has mitigated her damages is

a question of fact subject to review for clear error; the

employer has the burden to prove failure to mitigate.14



     13
      See Ford Motor Co. v. EEOC, 458 U.S. 219, 231 (1982)
(explaining the relationship of 42 U.S.C. § 2000e-5(g) with
common law duty to minimize damages).
     14
      See Sellers v. Delgado College (Sellers II), 902 F.2d
1189, 1193 (5th Cir. 1990).

                                   7
     Although a Title VII claimant has a duty to mitigate her

damages, she has no obligation to accept employment that is not

substantially equivalent to her prior employment in order to

minimize damages.15     “‘Substantially equivalent employment’ for

purposes of Title VII litigation is that ‘employment’ which

affords virtually identical promotional opportunities,

compensation, job responsibilities, working conditions, and

status as the position from which the Title VII claimant has been

discriminatorily terminated.”16     A court evaluates the

reasonableness of a Title VII claimant's diligence in light of

the individual characteristics of the claimant and the job

market.17

     In the instant case, the evidence supports the district

court’s determination that Vaughn and Holman mitigated their

damages.     The evidence demonstrated that Sabine County is a small

rural community with very few law enforcement, or other

government, employment opportunities.     Both plaintiffs testified

they applied for and sought other employment.     Holman testified

that she inquired about and applied for jobs at the City of

Hemphill.     Holman also explained that she worked at a doughnut

shop that Vaughn opened after she was not rehired, a fast food

     15
          See Ford Motor Co., 458 U.S. at 231.
     16
      Sellers v. Delgado Cmty. College, 839 F.2d 1132, 1138 (5th
Cir. 1988).
     17
          See Sellers II, 902 F.2d at 1193.

                                   8
establishment, a legal office, a school doing substitute

cleaning, and a car wash.    Holman testified that at the time of

trial she was doing contract work for STARCON International in

Illinois.    These jobs are not the same type of work as her work

as a deputy sheriff, but these jobs reflect Holman’s attempts to

earn a living where she was unable to obtain another law

enforcement position.

       Vaughn testified that she applied for a job in the Hemphill

school district, but could not apply for jobs that were far from

home due to her husband’s failing health.    Instead, she explained

that she opened and operated a doughnut shop.    When this venture

failed, she began to study to become a real estate agent.

Although not the same type of work as her work as a deputy

sheriff, these efforts reflect Vaughn’s attempts to earn a living

where she was precluded from obtaining another law enforcement

position.

       By seeking and accepting the best employment they could

find, even though law enforcement opportunities were not

available, the plaintiffs mitigated their damages.    Because

evidence in the record supports the district court’s

determination that the plaintiffs mitigated their damages, the

district court did not clearly err by entering judgment for back

pay.

                        The Amount of Back Pay



                                  9
     In its third issue, Sabine County maintains the district

court erred by failing to reduce the jury’s award of back pay.

We review the district court’s order awarding back pay for abuse

of discretion.18     Although the district court should defer to the

jury’s findings, the court abuses its discretion when it enters

judgment on a verdict unsupported by evidence.19     We examine each

plaintiff’s back pay award separately.

      Vaughn testified that she earned $1991.40 per month as a

deputy sheriff.     At the time of trial, 25 months had passed since

Vaughn and Holman were not rehired.     Based on a monthly salary of

$1991.40, Vaughn’s maximum earning capacity during the 25-month

back pay period was $49,785.00.     The jury, however, awarded

Vaughn $61,000.00, which was $11,215.00 more than Vaughn’s

maximum earning capacity.     A jury may consider the value of

employee benefits in awarding back pay,20 but no evidence in the

record supports the $11,215.00 increase in Vaughn’s maximum

earning capacity.     Although Vaughn testified that she lost

$14,000.00 in her efforts to open and operate a doughnut shop,



     18
          See Giles v. Gen. Elec. Co., 245 F.3d 474, 492 (5th Cir.
2001).
     19
      See Green v. Adm’rs of the Tulane Educ. Fund, 284 F.3d
642, 660 (5th Cir. 2002).
     20
      See Purcell v. Seguin State Bank & Trust Co., 999 F.2d 950
(5th Cir. 1993) (declining to automatically grant back pay based
on insurance benefits, but acknowledging they may be recoverable
where plaintiff shows damage).

                                   10
these damages are not appropriate for back pay.21       Thus, the

district court abused its discretion by failing to reduce

Vaughn’s award.

     Holman testified she earned $2,041.40 per month as a deputy.

Thus, her maximum earning capacity during the 25-month period was

$51,035.00.     Holman also testified that she earned $15,541.00 in

2001 by working several different jobs.       The district court must

reduce an award for back pay by a plaintiff’s interim earnings

such as Holman’s earnings in 2001.22       Reducing Holman’s maximum

earning capacity by her earnings supports an award of $35,494.00.

The jury, however, awarded her $42,000.00, which was $6,506.00

more than her maximum earning capacity reduced by her 2001

earnings.     Holman was less sure about how much money she earned

during 2002; her award, however, already exceeds any limit

supported by evidence in the record.       As a result, the district

court abused its discretion by failing to reduce Holman’s award.

                               Front Pay

     The district court awarded each plaintiff 11 months of front

pay based on the number of months remaining in Sheriff Maddox’s

term.     The district court first computed the amount each

plaintiff could have earned during the 11-month period had she


     21
      See Floca v. Homcare Health Servs., 845 F.2d 108, 113 (5th
Cir. 1988)(district court properly disallowed front pay, as a
double benefit, when plaintiff chose to go to school).
     22
          See 42 U.S.C. § 2000e-5(g)(1).

                                   11
been rehired.       The court then reduced each resulting maximum

earning capacity by an amount equal to Holman’s projected

earnings at STARCON.

     On appeal, Sabine County challenges the district court’s

award of front pay.       Sabine County maintains that the plaintiffs

should be precluded from any award of front pay because they

failed to mitigate their damages.        Additionally, Sabine County

argues that an award of front pay is improper because the

plaintiffs’ earning capacities are currently greater than they

were as employees of Sabine County.

     We review the district court’s award of front pay for abuse

of discretion.23      When reinstatement is not a viable option, the

district court, in its discretion, may order front pay in lieu of

reinstatement into a hostile work environment.24       The parties to

this lawsuit do not dispute the district court’s determination

that reinstatement is not a viable option.        Where reinstatement

is not an option, a plaintiff must use reasonable diligence to

find substantially equivalent employment to justify awarding

front pay.25     As with back pay, a plaintiff’s right to receive

front pay is subject to her duty to mitigate damages.26       Having

     23
          See Giles, 245 F.3d at 489.
     24
      See Pollard v. E.I. Du Pont De Nemours & Co., 532 U.S.
843, 846 (2001).
     25
          See id.
     26
          See Sellers II, 902 F.2d at 1196.

                                    12
already determined the evidence supports the jury’s determination

that Vaughn and Holman mitigated their damages, we consider only

whether the amount of the awards are proper.

     Sabine County complains that the district court offset the

awards of front pay by $706.00 per month rather than by $706 per

week.     The record supports this argument.   Although the district

court used $706.00 per month in calculating Holman’s projected

earnings at STARCON, Holman testified during trial that she

earned about $700.00 per week at STARCON.      Based on $700 per

week, Holman could potentially earn $2,800.00 per month.

Although this potential is more than either plaintiff earned as a

deputy sheriff for Sabine County, an award of front pay is not

necessarily precluded.     “Calculations of front pay cannot be

totally accurate because they are prospective and necessarily

speculative in nature.”27    In this case, the ability to earn

$706.00 a week is based on the availability of periodic contract

work involving travel to other states.     The evidence indicates

that Vaughn cannot travel far from home because of her husband’s

health.     We need not comment on this matter further, however,

since it is clear the district court erred in calculating its

award because the award was not based on evidence in the record.

As a result, the district court erred in the award of front pay.


     27
      Reneau v. Wayne Griffin & Sons, Inc., 945 F.2d 869, 870
(5th Cir. 1991); see Julian v. City of Houston, 314 F.3d 721, 729
(5th Cir. 2002).

                                  13
                  Compensatory Mental Anguish Damages

     Sabine County asserts that the plaintiffs’ evidence does not

support their awards for mental anguish and that the awards are

excessive.     We review an award for mental anguish damages for

abuse of discretion.28     Evidence of mental anguish need not be

corroborated by doctors, psychologists, or other witnesses,29 but

the plaintiff must support her claims with competent evidence

regarding the “nature, extent, and duration” of the harm.30

     In arguing that the district court’s awards are excessive,

Sabine County isolates brief statements the plaintiffs made

regarding their damages and asks us to ignore testimony detailing

why the plaintiffs were anxious, suffered from sleep loss, and

endured humiliation.     During trial, the plaintiffs testified as

to the nature, extent, and duration of the sleeplessness, anxiety

and humiliation they experienced.       They explained their

humiliation by describing their loss of standing in the

community, phone calls from neighbors and associates, and their

minimum wage jobs for employers such as “Fat Freds.”       The


     28
      See Patterson v. PHP Healthcare Corp., 90 F.3d 927, 940
(5th Cir. 1996).
     29
      See Hitt v. Connell, 301 F.3d 240, 250 (5th Cir. 2002)
(“[t]he plaintiff’s own testimony, standing alone, may be
sufficient to prove mental damages, but only if the testimony is
‘particularized and extensive’ enough...”) (internal citation
omitted).
     30
          See Brady v. Fort Bend County, 145 F.3d 691, 720 (5th Cir.
1998).

                                   14
district court observed the authenticity of their emotions as

they testified.

     Nevertheless, Sabine County asks us to dispose of this

appeal in the same manner as we did in Brady v. Fort Bend

County,31 and Hitt v. Connell.32       In Brady, this Court reviewed

mental anguish damages on a motion for judgment as a matter of a

law requiring de novo review.33        In Hitt, although we reviewed

for abuse of discretion, we overturned the jury’s verdict of

$224,000.00 for embarrassment and depression because the

plaintiff’s statements were few and conclusory.34        This case is

different from Brady because here we review the district court’s

award for abuse of discretion rather than de novo, and different

from Hitt because the plaintiffs’ statements were neither few nor

conclusory.

     Vaughn and Holman proved their damages by testifying about

the anxiety, sleep loss, and humiliation they experienced from

the loss of well-respected jobs in the community, losses which

relegated them to minimum wage labor.        “Judgments on non-economic

damages are notoriously variable; we have no basis to reverse the




     31
          See Brady, 145 F.3d at 691.
     32
          See Hitt, 310 F.3d at 250.
     33
          See Brady, 145 F.3d at 717.
     34
          See Hitt, 301 F.3d at 251.

                                   15
jury’s evaluation.”35   The district court did not abuse its

discretion by failing to set aside the jury’s verdict.

              Exclusion of “After-Acquired Evidence”

     During trial, Sabine County attempted to introduce evidence

that Holman took her personnel file when she left the Sheriff’s

Department.   Sabine County maintains this action constituted

criminal conduct.   The district court, however, excluded the

evidence.   On appeal, Sabine County argues that the district

court erred by excluding the evidence.   Although its argument is

not clearly articulated, Sabine County apparently maintains the

evidence precludes Holman from an award of front pay.

     We review a district court’s exclusion of evidence for abuse

of discretion.36    We will not disturb an evidentiary ruling

unless it affects a substantial right of the complaining party.37

 “Where an employer seeks to rely upon after-acquired evidence of

wrongdoing, it must first establish that the wrongdoing was of

such severity that the employee in fact would have been

terminated on those grounds alone if the employer had known of it




     35
      Forsyth v. City of Dallas, Tex., 91 F.3d 769, 774 (5th
Cir. 1996).
     36
      See Guillory v. Domtar Indus., 95 F.3d 1320, 1329 (5th
Cir. 1996) (citing Mac Sales, Inc., v. E.I. du Pont de Nemours &
Co., 24 F.3d 747, 753 (5th Cir. 1994)).
     37
      See id. (citing Polythane Sys. Inc. v. Marina Ventures
Int’l Ltd., 993 F.2d 1201, 1208 (5th Cir. 1993).

                                 16
at the time of the discharge.”38

     The after-acquired evidence theory has no bearing on this

case.     Holman’s action occurred after Sabine County decided not

to offer her employment.     Logically, Sabine County could not have

known of Holman’s actions at the time she was not rehired because

those actions had not yet occurred.39      Because the decision had

already been made to not hire Holman before she purportedly took

the file, Sabine County could not establish that any wrongdoing

was of such severity that the wrongdoing alone would have

resulted in Holman’s termination.       As a result, the district

court did not err by excluding the evidence of the allegedly

illegal conduct.

                            Attorney’s Fees

     Finally, Sabine County argues that the district court’s

award of attorney’s fees is excessive in light of the district

court’s errors.     We review the award of attorney’s fees for abuse

of discretion.40     The calculation of attorney's fees involves two

steps.     First, the court calculates a "lodestar" fee by

multiplying the reasonable number of hours expended on the case




     38
      Smith v. Berry Co., 165 F.3d 390, 395 (5th Cir. 1999)
(citing McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 362-
363 (1995)).
     39
          See id.
     40
          Hopwood v. Texas, 236 F.3d 256, 277 (5th Cir. 2000).

                                   17
by the reasonable hourly rates for the participating lawyers.41

The court then considers the following factors in determining

whether the lodestar figure should be adjusted upward or

downward:

     (1) the time and labor required for the litigation;
     (2) the novelty and difficulty of the questions
     presented;
     (3) the skill required to perform the legal services
     properly;
     (4) the preclusion of other employment by the attorney
     due to acceptance of the case;
     (5) the customary fee;
     (6) whether the fee is fixed or contingent;
     (7) time limitations imposed by the client or the
     circumstances;
     (8) the amount involved and the result obtained;
     (9) the experience, reputation and ability of the
     attorneys;
     (10) the "undesirability" of the case;
     (11) the nature and length of the professional
     relationship with the client; and
     (12) awards in similar cases.42

The district court has broad discretion in awarding attorney’s

fees, and an award of fees should not result in further

significant litigation.43

     In this case, the district court’s detailed order clearly

indicates the court considered the lodestar fee, the number of

hours required to prosecute the plaintiffs’ case, and the factors

discussed above.     Although the “amount [of damage] involved, and

     41
      See Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1047 (5th
Cir. 1998).
     42
      See Johnson v. Georgia Highway Express Inc., 488 F.2d 714,
717-19 (5th Cir. 1974) (emphasis added).
     43
          See Hopwood, 236 F.3d at 277.

                                   18
the result obtained,” may affect attorney’s fees,44 Sabine County

advances no argument about why the awards are excessive other

than arguing that the plaintiff must be the prevailing party in

order to obtain an award.45     After our review, the plaintiffs

remain prevailing parties.     Hence, the district court did not

abuse its discretion in awarding attorney’s fees.

                               Conclusion

     Because insufficient evidence exists to support the district

court’s award of back pay, we REVERSE the district court’s award

of back pay and REMAND the case for recalculation of the amount

of back pay.     Because the district court erred in its calculation

of front pay, we REVERSE the district court’s award of front pay

and REMAND the case for recalculation of front pay.     We AFFIRM

the district court’s judgment in all other respects.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.




     44
          See Johnson, 488 F.2d at 718-19.
     45
          See Farrar v. Hobby, 506 U.S. 103, 108-09 (1992).

                                   19
