                  United States Court of Appeals,

                           Fifth Circuit.

                             No. 93-2599

                         Summary Calendar.

        Conrell HADLEY, Plaintiff-Appellee, Cross-Appellant,

                                 v.

          VAM P T S, Defendant-Appellant, Cross-Appellee.

                           Feb. 15, 1995.

Appeal from the United States District Court from the Southern
District of Texas.

Before DAVIS, JONES and DUHÉ, Circuit Judges.

     EDITH H. JONES, Circuit Judge:

     Both parties to this case have appealed the trial court

judgment that awarded Hadley $283,000 against his former employer.

VAM, the employer, was found liable for Title VII retaliatory

discharge and Texas common law intentional infliction of emotional

distress, but not liable for disparate treatment on the basis of

race.   VAM appeals only the jury's award of punitive damages for

intentional infliction of emotional distress.       Conrell Hadley

appeals the district court's reduction of his requested attorneys

fees, the failure of the district court to award front pay, and the

denial of prejudgment interest on back pay. We vacate the punitive

damages award, remand for reconsideration of the denial of front

pay, and otherwise affirm.

                             BACKGROUND

     Conrell Hadley, a black man, was hired by VAM in 1981.    Hadley

was apparently moving up the job ladder until 1990, when he was

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demoted.    Hadley filed a complaint with the EEOC alleging that he

had been discriminated against based upon his race.                 Later that

year, Hadley filed a second complaint with the EEOC alleging

unlawful    retaliation.        He    complained       that    he    had   been

discriminatorily denied the opportunity to work light duty after

injuring his back on the job.        The EEOC found no discrimination on

either complaint.

     Hadley was ultimately fired by VAM after he made a machining

error that cost VAM more than $6,000.           Hadley filed suit against

VAM claiming racial discrimination in violation of the 1991 Civil

Rights Act, retaliatory discharge under Title VII, and intentional

infliction of emotional distress under Texas state law.                The jury

found for VAM on the racial discrimination claim and for Hadley on

the retaliatory discharge and intentional infliction of emotional

distress causes of action.      For the retaliatory discharge cause of

action, the jury awarded Hadley $33,000 in back pay and other

benefits, $3,000 in compensatory damages, and $100,000 in punitive

damages.1    For the intentional infliction of emotional distress

cause of action, the jury awarded Hadley $150,000 in punitive

damages.     However, the jury was not asked whether Hadley had

suffered    any   actual   damages   as   a   result   of     the   intentional

infliction of emotional distress and therefore did not award any

such damages.

     After the judgment was entered, Hadley submitted a request for


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      The punitive damages award was later reduced to $97,000 in
accordance with Title VII limits.

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$144,693.75 in attorneys fees as a prevailing party under Title

VII.    The district court found the requested fees to be "clearly

excessive" and instead awarded Hadley $50,000.            The district court

also refused to grant Hadley any front pay and did not award

prejudgment interest on the back pay awarded by the jury.

       VAM appeals the $150,000 in punitive damages for intentional

infliction of emotional distress on the ground that there was no

requisite finding of actual damages to support an award of punitive

damages.    Hadley appeals the reduction of his attorney fee request

to $50,000 and the decisions of the district court not to award

front pay or prejudgment interest.

                                 DISCUSSION

Punitive Damages

        Whether a jury finding of actual damages is a necessary

predicate to an award of punitive damages is a question of Texas

state law, which is reviewed on appeal de novo.            See Salve Regina

College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 1221, 113

L.Ed.2d 190 (1991).

        Texas law is uniform and clear that a finding of actual

damages     is   a   prerequisite   to    receipt   of    punitive   damages.

Doubleday & Co., Inc. v. Rogers, 674 S.W.2d 751, 753-54 (Tex.1984).

The facts and holding of Federal Express v. Dutschmann, 846 S.W.2d

282 (Tex.1993), are remarkably similar to the instant case, yet

neither party cited this controlling Texas Supreme Court case in

its briefs.

       In   Dutschmann,   the   plaintiff    sued   her   employer   in   both


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contract and tort.        The jury returned a verdict for the plaintiff

on both causes of action and awarded the plaintiff punitive damages

on the tort cause of action.                 However, the Texas Supreme Court

reversed the award of punitive damages because no actual damages

question had been submitted to the jury on the tort cause of

action.     The court explained that "[r]ecovery of punitive damages

requires a finding of an independent tort with accompanying actual

damages."      Id. at 284.        Because the jury did not find that the

plaintiff suffered any actual tort damages, the plaintiff was not

entitled to an award of punitive damages.                 Id.

      The     instant     case    is        virtually    indistinguishable         from

Dutschmann.     The jury found VAM liable for violation of Title VII

and awarded compensatory and punitive damages. The jury also found

tort liability, but as in Dutschmann, was not asked to assess any

actual damages, only punitives.               As in Dutschmann, this oversight

by   Hadley    is    fatal   to     his      punitive    damages     award   for    the

intentional infliction of emotional distress tort.

       Hadley       is   creative      in    his   attempt     to   circumvent     this

requirement, but to no avail.                    Hadley first asserts that the

compensatory damages awarded in the Title VII retaliatory discharge

cause of action are sufficient to fulfill the actual damages

requirement.        While it is true that compensatory damages under

Title VII can overlap with actual damages suffered as a result of

intentional infliction of emotional distress, the severity of

injury necessary for each is markedly different.                     In order to be

compensable,     emotional       distress        under   the   state   law   tort   of


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intentional infliction of emotional distress must be severe.       See,

e.g., Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex.1993).       There

is no such requirement for compensable emotional harm under Title

VII.     Therefore, the fact that the jury awarded compensatory

damages under Title VII does not mean that it also found that

Hadley    suffered   compensatory   damages   under    the   intentional

infliction of emotional distress tort.

       Hadley alternatively argues that even if there were no actual

tort damages found by the jury, VAM waived its right to complain of

this feature of the judgment by not objecting to the jury charge in

accordance with Fed.R.Civ.Proc. 51.      This argument seeks to shift

the burden of securing a finding of actual damages from the

plaintiff to the defendant.     The defendant has no duty to ensure

that the plaintiff has furnished jury questions covering all fact

issues necessary to his cause of action.      Texas law is clear that

a plaintiff must "allege, prove and secure jury findings on the

existence and amount of actual damages sufficient to support an

award of punitive damages." Nabours v. Longview Sav. & Loan Ass'n,

700 S.W.2d 901, 903 (Tex.1985).         Therefore, plaintiff did not

fulfill his burden to secure a jury finding of actual tort damages

upon which a punitive damage award could be based.

Attorneys Fees

         As a prevailing party in a Title VII case, Hadley was

entitled to an award of attorneys fees.       We review the district

court's award only for abuse of discretion.           Purcell v. Sequin

State Bank and Trust Co., 999 F.2d 950, 961 (5th Cir.1993).


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     Hadley submitted an attorneys' fee bill to the court for

$144,693.75.        The court reviewed the bill, considered the factors

set forth in Johnson v. Georgia Highway Express, 488 F.2d 714 (5th

Cir.1974), and concluded that the requested fee was excessive.                       He

therefore reduced the fee to what he found was reasonable and

necessary and awarded the plaintiff $50,000.

     Although the district judge's recitation of the reasons why he

reduced the requested fee is not fulsome, it does evidence the

required examination of the Johnson factors. The requested fee was

extremely high for this sort of case.               Therefore, the court did not

abuse his discretion in reducing the fee request to a still

generous amount.

Front Pay

        The district court denied Hadley's request for an award of

front pay.      We review such a denial for abuse of discretion.

Deloach v. Delchamps, Inc., 897 F.2d 815, 822 (5th Cir.1990).

Section 2000e-5(g)        of   Title    VII      authorizes    a     court    to   order

reinstatement of the plaintiff or order any other appropriate

equitable relief.         42 U.S.C. § 2000e-5(g).                  Front pay is an

equitable remedy that can be employed when reinstatement is not

feasible.      Walther v. Lone Star Gas Co., 952 F.2d 119, 127 (5th

Cir.1992).      In the instant case, the district court determined

that, because of the animosity between the parties, reinstatement

would   not    be    feasible.      However,        citing    Walther,       the   court

determined that because of the large amount of punitive damages

awarded   to    the    plaintiff,      an       award   of   front    pay    would   be


                                            6
inappropriate and excessive.       This case was tried under the 1991

Civil Rights Act, which newly permits awards of compensatory and

punitive damages in Title VII cases.

      In Walther, the Fifth Circuit adopted the position of both

the First    and   Seventh    Circuits   and   held    that   "a    substantial

liquidated damage award may indicate that an additional award of

front pay is inappropriate or excessive."             Id. at 127.    Plaintiff

urges this court to limit Walther to ADEA cases dealing with

liquidated damages and not to apply its rationale to Title VII

punitive damages cases.       However, we find the reasoning of Walther

and our sister circuits is equally applicable to the impact of

Title VII punitive damages, so we adopt Walther in this context.

See Price v. Marshall Eidman & Assoc., Inc., 966 F.2d 320, 326 (7th

Cir.1992);    Hybert v. Hearst Corp., 900 F.2d 1050, 1056 (7th

Cir.1990);   Wildman v. Lerner Stores Corp., 771 F.2d 605, 616 (1st

Cir.1985).

     Explaining the legislative history of the ADEA, the Supreme

Court, in Trans World Airlines, Inc. v. Thurston, 469 U.S. 111,

125-26, 105 S.Ct. 613, 624, 83 L.Ed.2d 523 (1985), stated that

"Congress intended for liquidated damages [under ADEA] to be

punitive in nature."    Id.    See also Dean v. American Sec. Ins. Co.,

559 F.2d 1036, 1039-40 (5th Cir.1977), cert. denied, 434 U.S. 1066,

98 S.Ct. 1243, 55 L.Ed.2d 767 (1978) (citing legislative history

suggesting that Congress intended liquidated damages to supply the

deterrent that punitive damages normally served).              Because Title

VII punitive damages serve the same function as liquidated damages


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under ADEA, it makes sense that they should affect equitable relief

similarly.

     The district court's decision to deny front pay apparently

arose from its sense that Hadley received sufficient punitive

damages to accomplish full recompense.           Whether the $150,000 award

premised on state law explicitly influenced this decision is not

clear.    It may be that reversal of the punitive damages for

intentional   infliction    of    emotional       distress   will    prompt   a

re-evaluation by the trial court of whether an award of front pay

remains   inappropriate    and   excessive.        Without   expressing    any

opinion on how the court's discretion should be exercised, we

remand for reconsideration of front pay.

Prejudgment Interest

     The decision to award prejudgment interest on back pay awards

in Title VII cases rests within the sound discretion of the

district court.   Sellers v. Delgado Community College, 839 F.2d

1132, 1140 (5th Cir.1988), cert. denied, 498 U.S. 987, 111 S.Ct.

525, 112 L.Ed.2d 536 (1990).           We will not overturn the district

court's   determination    of    the       appropriateness   of     prejudgment

interest absent an abuse of discretion. Id.           Although this Circuit

has acknowledged that a back pay award in Title VII cases should

make the injured party whole by putting him in the same position he

would have been in but for the violation, Id. at 1136, we have not

adopted a per se rule that requires prejudgment interest to be

included in the award.          Accordingly, we find no abuse of the

district court's discretion in the failure to award prejudgment


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interest on the back pay award.

     In summary, because we find that the plaintiff failed to

fulfill his burden of proving and securing a jury finding of actual

tort damages, the final judgment awarding $150,000 in punitive

damages for intentional infliction of emotional distress is to that

extent reversed.   The court's decisions on attorneys' fees and

prejudgment interest are affirmed.    Further, we remand the case to

the district court for a determination on whether the reversal of

the state law-based punitive damages award affects the equitable

decision to deny front pay to the plaintiff.

     AFFIRMED in PART, REVERSED in PART and REMANDED.




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