                       UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT

                          _______________________

                                  No. 00-60612

                           ______________________

                              PEGGY THOMPSON,

                                     Plaintiff/Appellee-Cross-Appellant,

                                     versus

                    CITY OF TUPELO, DAVID LEDBETTER,
                       In His Individual Capacity,

                                  Defendants/Appellants-Cross-Appellees.

_________________________________________________________________

          Appeals from the United States District Court
             for the Northern District of Mississippi
                     Civil Docket #1:98-CV-226
_________________________________________________________________


                          July 26, 2001
Before REYNALDO G. GARZA, DAVIS, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:*

              Peggy Thompson sued the city of Tupelo, Mississippi, and

then-deputy police chief David Ledbetter after her discharge as a

police officer, alleging sex discrimination and retaliation for the

exercise of her First Amendment rights.            A jury found in her favor.

The   trial    court    entered    judgment   on    the   verdict   for   about


      *
            Pursuant to 5TH CIR. R. 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opinion should not be published and is not precedent except under the limited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 CIR. R. 47.5.4.
$400,000.00 against both defendants, including $300,000.00 in non-

pecuniary damages for mental and emotional anguish against the City

and $50,000.00 in punitive damages against Ledbetter (who is not a

party to this appeal).      The City of Tupelo asserts a number of

errors on appeal, but we find merit only in its contention that the

award of non-economic damages was excessive.              Further, we agree

with Thompson’s contention, made in her cross-appeal, that she is

entitled to reinstatement from the date of the jury verdict.              The

judgment is affirmed in part but must be vacated and the case

remanded on these points.

          The    City’s   challenges    to    the   verdict,   although   not

frivolous,   cannot   overcome   the    substantial       hurdle   that   any

challenge to an adverse jury verdict faces.            This court may not

reverse the award unless no reasonable jury could have found sex

discrimination   or   retaliation   for      Thompson’s   exercise   of   her

protected right to pursue an earlier sex discrimination lawsuit.

Boeing Company v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (en

banc), overruled on other grounds by Gautreaux v. Scurlock Marine,

Inc., 107 F.3d 331 (5th Cir. 1997) (en banc).              Anterior to the

sufficiency questions, however, are the City’s assertions that the

court erroneously admitted (1) evidence shielded by the attorney-

client privilege and (2) evidence of non-comparable claims of sex

discrimination within the Tupelo Police Department.                The trial


                                    2
court almost surely erred in the first instance, admitting over the

City’s    objection    the   substance    of   a   conversation   among    city

officials and their attorneys in litigation matters relating to

Thompson.       The fact that a former City employee (who participated

in the meeting while he was a City employee) volunteered to testify

about     the    conversation   at   trial     cannot   waive     the    City’s

confidentiality privilege.        Moreover, the admission of tales of

discrimination by other former female Tupelo applicants or law

enforcement officers may not have complied with the standards for

admissibility recently reiterated in Wyvill v. United Companies

Life Insurance Co. 212 F.3d 296, 302-304 (5th Cir. 2000).

            The trial court’s possible errors did not, however,

substantially harm Tupelo’s defense.           See Fed. R. Civ. P. 61.      The

jury could have believed the attestation of Thompson’s excellent

job performance from police department officials with whom she had

worked.     It could have believed that Deputy Chief Ledbetter had

made various statements indicating his discomfort with women police

officers and admonishing Thompson, in connection with her earlier

suit, that no one who sued the police department remained employed

there.    The jury could have concluded that Ledbetter spearheaded

the investigation that led to Thompson’s discharge less than a

month after she settled the previous case with the City.                It could

have concluded that the proffered reasons for her discharge – the


                                      3
WalMart parking incident; the cigarette burn hole in her police

car; and the collision with a civilian vehicle – were overblown or

mischaracterized to Thompson’s detriment.            These inferences were

not the only possible inferences to draw in a hotly contested case,

but they are certainly plausible based on the evidence.                  The

liability verdict must stand.

          With regard to the $300,000 judgment for non-economic

damages, the City urges a remittitur to align this amount both with

Thompson’s slim proof of such damages and with other recent Fifth

Circuit cases.    This court has held that a plaintiff who seeks

damages for emotional injury following an adverse employment action

must prove “a ‘specific discernable injury to the claimant’s

emotional state,’ . . . proven with evidence regarding the ‘nature

and extent’ of the harm.”    Brady v. Fort Bend County, 145 F.3d 691,

718 (5th Cir. 1998), cert. denied, 525 U.S. 1105 (1999), quoting

Patterson v. PHP Health Care Corp., 90 F.3d 927, 938, 940 (5th Cir.

1996).   In Brady and Patterson, verdicts for non-economic damages

based on emotional distress were vacated for lack of specific

proof.    The   two   decisions   are   based   on   the   Supreme   Court’s

requirement that compensatory damages for emotional distress “be

supported by competent evidence concerning the injury.”              Carey v.

Piphus, 435 U.S. 247, 264 n.20, 98 S.Ct. 1042 (1978).                   Both




                                    4
decisions discuss the law extensively, obviating the need for

repetition here.

           Only a year ago, Brady and Patterson were reinforced by

a decision in which we ordered remittitur of a $300,000 mental

anguish award to $10,000 in a Title VII retaliation case.          Vadie v.

Mississippi State Univ., 218 F.3d 365, 375-78 (5th Cir. 2000).

Vadie’s testimony, uncorroborated by medical evidence, was that he

suffered from sleeplessness “for months at a time,” headache, and

nausea; and that he remained “under severe doctor surveillance.”

Id.   at   377.     This   court   found     the    testimony      entirely

disproportionate to Vadie’s injury.

           In another case, however, this court summarily upheld

non-economic damage verdicts of $100,000 and $75,000 based on two

plaintiffs’ specific testimony that they endured depression, weight

loss, intestinal   troubles,   sleeplessness       and   marital   problems

following retaliatory reassignments by the police department where

they worked.   Forsyth v. City of Dallas, 91 F.3d 769, 774 (5th Cir.

1996). Forsyth offers “slim guidance” to determine the sufficiency

of emotional distress testimony.       Compare Brady, 145 F.3d at 720.

Forsyth also post-dates the controlling decision in Patterson.

           This case more closely resembles Brady, Patterson and

Vadie than Forsyth.   There is precious little testimony in a 940-

page record, at most a few pages, concerning Thompson’s emotional


                                   5
distress damages.     The gist of it is as follows:         She took

antidepressants both before and after being fired; her only two

visits to a psychologist occurred during preparation for her two

lawsuits; other than stress, which she also experienced while

working for the Tupelo police department, she testified to no

specific emotionally rooted damages upon losing her job.         She

repeatedly testified how much it meant to her to be a police

officer.   But the record lacks any proof that objective signs of

mental distress, such as sleeplessness or stomach troubles, were

caused by her discharge. No medical expert testified for Thompson,

but our case law does not require it.     Further, a friend, Bobby

Frazier, stated that he had seen her cry over her job loss trauma

and embarrassment.

           A remittitur may be ordered to reduce a verdict that is

“contrary to right reason” or “entirely disproportionate to the

injury sustained.”    Eiland v. Westinghouse Elec. Corp., 58 F.3d

176, 182-83 (internal citations omitted) (5th Cir. 1995).    Similar

to Vadie, the evidence concerning severe emotional distress is

weak.   On the other hand, unlike the plaintiff in Vadie, Thompson

lost her job.   Consequently, we order a remittitur in the amount of

$250,000, reducing her non-economic damages to $50,000.       Should

Thompson refuse to accept this reduction, we order a new trial on

this element of damages.     Vadie, 218 F.3d at 378.    This amount


                                  6
seems to be the maximum that a jury could have awarded consistent

with our precedents on noneconomic damages.

          On cross-appeal, Thompson urges that the district court’s

reinstatement order be modified to run from the date of the jury

verdict rather than at a later date, as the court ordered.   Under

Boddie v. City of Columbus, 989 F.2d 745, 752 (5th Cir. 1993).   The

court’s order was wrong. Thompson was entitled to compensation for

her lost wages from the date of verdict until reinstatement.     The

City’s arguments concerning failure to mitigate are untimely raised

and we do not consider them.

          For the foregoing reasons, the judgment is affirmed in

part but vacated in part and remanded (a) to award Thompson

reinstatement wages from the date of the verdict, and (b) to reduce

the emotional anguish damages to $50,000 or require a new trial on

Thompson’s non-economic damages.

          AFFIRMED in part, VACATED in part and REMANDED with

instructions.




                                   7
