                   IN THE UNITED STATES COURT OF APPEALS

                               FOR THE FIFTH CIRCUIT

                                _____________________

                                     No. 99-20965
                                _____________________


      DIANA LYN GAMBOA; LINDA D. SLUSSER,

                                                       Plaintiffs-Appellees,
                                                       Cross-Appellants,

                                          versus

      WILLIAM J. HENDERSON, U.S. Postmaster General,

                                                       Defendant-Appellant,
                                                       Cross-Appellee.

          _______________________________________________________

                  Appeals from the United States District Court for
                           the Southern District of Texas
                            (USDC No. H-94-CV-1521)
          _______________________________________________________
                                November 29, 2000

Before REAVLEY, BENAVIDES and DENNIS, Circuit Judges.

REAVLEY, Circuit Judge:*

      In this Title VII retaliation case, plaintiff Diana Gamboa won a judgment against

the United States Postal Service (USPS). The USPS challenges the award of damages.



      *
        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not be published and is not precedent except under the limited circumstances set forth in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.
We affirm the award of compensatory damages and reverse the award of front and back

pay. Our different treatment of the awards of compensatory damages, decided by a jury,

and front and back pay, decided by the district court, can largely be explained by our

different standards of review.

                                     BACKGROUND

       Gamboa and Linda Slusser were postal employees who brought this action against

the USPS, alleging sexual harassment and discrimination based on sex, age, disability,

and race, as well as retaliation for pursuing discrimination claims. After a partial

summary judgment, the case proceeded to trial only on Gamboa’s and Slusser’s Title VII

retaliation claims. The USPS does not appeal the judgment in favor of Slusser, and the

appeal is therefore limited to Gamboa.

       Gamboa, who is deaf, was a clerk who had filed numerous equal employment

opportunity (EEO) complaints on behalf of herself and others. Among other claims,

Gamboa alleged that she was mistreated and ultimately terminated because of her

participation in the EEO process. She claimed that she was terminated on the pretext of

taking an unauthorized bathroom break.

                                       DISCUSSION

A. Compensatory Damages

       The USPS does not challenge the jury’s liability finding that it retaliated against

Gamboa in violation of Title VII, but does challenge the award of compensatory

damages. The challenge is based on evidence introduced regarding Gamboa’s

                                             2
fibromyalgia. “Compensatory damages” is a term of art under the civil rights laws, and

by statute consist of damages for “future pecuniary losses, emotional pain, suffering,

inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses.”

42 U.S.C. § 1981a(b)(3). The plaintiff has a right to demand a jury trial on the issue of

compensatory damages, see id. § 1981a(c), and the plaintiffs exercised that right in this

case. The jury was instructed that it could award compensatory damages for “emotional

pain, suffering, or mental anguish that each Plaintiff experienced as a consequence of

Defendant’s unlawful conduct.” The jury awarded Gamboa $800,000 in compensatory

damages. After the trial, the district court reduced this award to $300,000 based on a

statutory cap on such damages. See id. § 1981a(b)(3)(D).

       1. Admission of Expert Testimony

       As to compensatory damages, the USPS first argues that the district court should

not have admitted expert testimony on the cause of Gamboa’s fibromyalgia. Gamboa

claimed that her mistreatment by the USPS had led to numerous ailments, including

fibromyalgia, a condition we have described as “characterized by complaints of

generalized pain, poor sleep, an inability to concentrate, and chronic fatigue.” Black v.

Food Lion, Inc., 171 F.3d 308, 309 (5th Cir. 1999). Gamboa claimed that the effects of

her ailments included difficulty sleeping and bad dreams, easy bruising, fatigue, memory

loss, and other maladies. She testified that she was unable to work.

       Dr. Deborah Meyer, a family practitioner, testified as an expert. She was

Gamboa’s treating physician. Meyer opined that “it was [Gamboa’s] activities at the post

                                             3
office that brought on the symptoms” of fibromyalgia. The apparent basis of this

conclusion was that Gamboa had suffered other stressful situations in her life such as

divorce “without getting any symptoms of the fibromyalgia.”

       The USPS moved for new trial, arguing that Dr. Meyer’s testimony as to the cause

of Gamboa’s fibromyalgia should not have been admitted, because it did not meet the

requirements of Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), and related

authority, especially in light of the Black decision, cited above, which issued after the

jury’s verdict. The USPS did not object to Meyer’s testimony prior to or during trial, and

therefore concedes that appellate review is limited to plain error review. See Tompkins v.

Cyr, 202 F.3d 770, 779 (5th Cir. 2000); Rushing v. Kansas City S. Ry. Co., 185 F.3d

496, 506 (5th Cir. 1999), cert. denied, 120 S. Ct. 1171 (2000). To prevail on plain error

review, an appellant must show that (1) an error occurred, (2) the error is clear and

obvious under current law, (3) the error affected the appellant’s substantial rights, and (4)

the error would seriously affect the fairness, integrity, or public reputation of judicial

proceedings if left uncorrected. See id.

       We cannot say that the district court’s admission of the expert testimony rises to

the level of plain error. Even though, as we discuss further below, Meyer’s causation

testimony was highly tenuous, and assuming that the first three requirement for plain

error correction are met, we are not persuaded that the error would seriously affect the

fairness, integrity, or public reputation of judicial proceedings if left uncorrected.

Correcting the erroneous admission of the expert testimony in these circumstances would

                                               4
itself call into doubt the fairness, integrity, or public reputation of judicial proceedings.

Meyer was duly disclosed as an expert witness during pretrial discovery, and the USPS

had an opportunity to depose her if it chose. The procedure for challenging an expert

witness under Daubert through a pretrial hearing is now well established, see, e.g., United

States v. Katz, 178 F.3d 368, 370 (5th Cir. 1999), yet the USPS failed to take advantage

of this procedure. Furthermore, to accept its argument would in effect mean that the

district court should have sua sponte excluded Meyer’s testimony on causation. A

Daubert analysis of the admissibility of expert testimony is a complex undertaking,

involving the consideration of several factors, and does not lend itself to instant, sua

sponte rulings from the bench. For this reason pretrial procedures are employed for

consideration of Daubert objections.

       In addition, Gamboa argues that the USPS deliberately chose not to object to

Meyer’s testimony. As we understand Gamboa’s argument, the USPS had no quarrel

with Meyer’s testimony that Gamboa suffered from fibromyalgia, and was hoping that the

jury would either conclude that (1) Gamboa’s claimed damages were exaggerated, or (2)

Gamboa does indeed suffer from fibromyalgia, but the USPS did not cause this condition.

As to the latter point, we note that the USPS does not argue on appeal that Gamboa failed

to prove that she suffers from fibromyalgia, but only challenges the proof of causation.

We further note that during closing argument, counsel for the USPS made an argument

that seems consistent with Gamboa’s suspicions:



                                               5
       I didn’t hear any evidence connecting [Gamboa’s] present physical
       condition to the Postal Service. Now, I’ll be honest with you. I’m 47 years
       old. I’ve got aches and pains, too. In five years, when I’m 52, I’ll bet you
       I’ll have more than I do now. I submit to you that the logical conclusion of
       what we heard from the witness stand is Ms. Gamboa is attempting to lump
       all her aches and pains that she’s accumulated over the course of years and
       that she will accumulate as she gets older, as we all will, into a little basket
       that she wants to lay at the foot of the Postal Service and she wants you
       guys to give her a nice little nest egg.

We are not completely convinced that Gamboa is correct in arguing that the USPS made a

tactical decision not to object to Meyer’s testimony, but appearances are such that we are

satisfied that the USPS has not shown that a failure to correct the alleged error in

admitting Meyer’s causation testimony would seriously affect the fairness, integrity, or

public reputation of judicial proceedings.

       2. Sufficiency of Evidence

       As to the award of compensatory damages, the USPS alternatively argues that even

if the district court did not err in admitting the expert testimony, the evidence was

insufficient to establish that Gamboa’s fibromyalgia was caused by the retaliation she

suffered. As discussed above, the USPS does not challenge the proof that Gamboa in fact

suffered from fibromyalgia, but does question the proof that its conduct caused Gamboa

to suffer from this medical condition. The USPS also argues that even if the expert’s

testimony were admissible, she only testified that Gamboa’s fibromyalgia was caused by

“her activities at the post office.” When asked to describe the conditions at the post

office more specifically, she stated: “The conflicts with the supervisors, an altercation

with the co-worker and the termination, as far as I know.” The USPS argues that

                                              6
Gamboa did not prove that the fibromyalgia was caused by the unlawful retaliation, in

that even if the expert’s opinion is accepted as entirely valid, other legal activities at the

post office might have caused the fibromyalgia. The USPS argues that many of

Gamboa’s conflicts at the post office were not related to her retaliation claim. In

particular, the district court held prior to trial that the altercation with the co-worker,

known as the “wrist-grabbing incident,” was not actionable retaliation and granted

summary judgment on this claim. According to the USPS, “Gamboa herself attributed

her disability to the wrist-grabbing incident, which the court ruled was not a Title VII

violation.”

       The USPS is arguing that the evidence is insufficient to sustain the jury’s finding

that the unlawful retaliatory conduct of the USPS caused Gamboa’s nonpecuniary

damages. The USPS, however, failed to move for judgment as a matter of law at the

close of all the evidence under Fed. R. Civ. P. 50(a), on grounds of insufficient evidence

of causation or any other ground. We have held that a party must move for judgment as a

matter of law at the close of all the evidence to preserve error, and that a failure to do so

results in a waiver of appellate review of the sufficiency of the evidence, see McAnn v.

Texas City Refining, Inc., 984 F.2d 667, 671 (5th Cir. 1993), or limits appellate review to

“whether the plaintiff has presented any evidence in support of his claim,” see Polanco v.

City of Austin, 78 F.3d 968, 974 (5th Cir. 1996). Under a “no evidence” standard of

review, the sufficiency argument must fail, since Gamboa offered some evidence of

causation.

                                               7
B.     Back Pay and Front Pay

       The USPS also challenges the award of front pay and back pay. Unlike an award

of compensatory damages, awards of front and back pay under Title VII are decided by

the district court. See Allison v. Citgo Petroleum Corp., 151 F.3d 402, 423 n.19 (5th Cir.

1998). As explained above, our review of the award of compensatory damages is either

nonexistent or extremely limited to a no evidence standard of review, because the USPS

failed to move for judgment as a matter of law at the close of all the evidence. However,

we review the district court’s decision to award front and back pay for abuse of

discretion. See Shirley v. Chrysler First, Inc., 970 F.2d 39, 44 (5th Cir. 1992) (“We

review an award of front pay for an abuse of discretion.”); Sellers v. Delgado Cmty.

Coll., 839 F.2d 1132, 1136 (5th Cir. 1988) (noting that “back pay is not an automatic

remedy, but is equitable in nature and may be invoked in the sound discretion of the

district court.”). “A district court abuses its discretion if it bases its decision on an

erroneous view of the law or on a clearly erroneous assessment of the evidence.” Esmark

Apparel, Inc. v. James, 10 F.3d 1156, 1163 (5th Cir. 1994).

       The district court awarded back pay of about $265,000 and front pay of about

$323,000. In so doing, the court stated that it found the conclusion of Gamboa and

Meyer that the fibromyalgia was caused by the USPS’s retaliatory acts to be “extremely

speculative and troubling.” The court, however, concluded that back pay was appropriate

because the USPS “failed to carry its burden.” In context, the court was referring to the



                                               8
USPS’s failure to prove that Gamboa had not mitigated her damages, and its failure to

offer its own expert to rebut Dr. Meyer.

       We conclude that the district court erred in awarding front and back pay. First, as

a legal matter, we do not agree with the district court that the burden was on the USPS to

prove that Gamboa was not entitled to back pay. Front and back pay compensate a

plaintiff for wages and other benefits she would have earned if she had continued to

work. See Shirley, 970 F.2d at 44 (“Front pay is awarded to compensate the plaintiff for

lost future wages and benefits.”); Franks v. Bowman Trans. Co., 495 F.2d 398, 421 (5th

Cir. 1974) (“Where the discriminatee has suffered economic injury in the form of lost

wages, back pay is normally appropriate relief.”). For this reason, such damages strike us

as inappropriate if the plaintiff claims that she is unable to work because she is disabled.

See Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134, 145 (2d Cir. 1993) (denying award of

back pay for period during which plaintiff was disabled). Gamboa’s position is that she

was unable to work after leaving her employment with the USPS. She and Dr. Meyer

testified that she is totally and permanently disabled.

       Gamboa argues, however, that an exception to this rule holds that a plaintiff may

recover back and front pay damages if she becomes disabled as a result of the defendant’s

wrongful conduct. See Gotthardt v. Nat’l R.R. Passenger Corp., 191 F.3d 1148, 1155-56

(9th Cir. 1999) (holding that award of front pay was appropriate where plaintiff proved

that defendant’s wrongful conduct caused her disability). Assuming that Gamboa is

correct, we nevertheless believe that in such circumstances the burden should be on the

                                              9
plaintiff to prove that the defendant caused her disability. Placing the burden on the

plaintiff is consistent with the general principle that a plaintiff in a civil case bears the

burden of proving her damages, and our recognition in the Title VII context that “only

those individuals who have suffered a loss of pay because of the illegal discrimination are

entitled to [back pay] compensation,” Shipes v. Trinity Indus., 987 F.2d 311, 318 (5th

Cir. 1993), and that back pay is available “to make persons whole for injuries suffered on

account of unlawful employment discrimination,” Floca v. Homcare Health Servs, Inc.,

845 F.2d 108, 111 (5th Cir. 1988). While we have recognized that the burden of proving

a failure to mitigate damages by finding substantially equivalent work rests on the

defendant, see Sellers v. Delgado Coll., 902 F.2d 1189, 1193 (5th Cir. 1990), we have

never held that when a plaintiff seeks front and back pay on the theory that she is

disabled as a result of the defendant’s conduct, the plaintiff is not obliged to prove up this

theory by establishing that the defendant’s violation of Title VII caused her disability.

The better rule, we think, is to place the burden on the plaintiff to prove such a claim.

The district court therefore legally erred in placing the burden on the USPS to prove that

Gamboa was not entitled to back pay.

       We are further of the view that the district court clearly erred, as a factual matter,

in finding that Gamboa was entitled to front and back pay. These awards hinged on

Gamboa’s theory that, even though she was disabled, she was entitled to front and back

pay because the USPS had caused her disability through its unlawful conduct, by causing

her fibromyalgia.

                                               10
       “A finding is ‘clearly erroneous’ when although there is evidence to support it, the

reviewing court on the entire evidence is left with the definite and firm conviction that a

mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364,

395 (1948); see also Henderson v. Belknap (In re Henderson), 18 F.3d 1305, 1307 (5th

Cir. 1994). With respect to the district court’s award of front and back pay, we are left

with a definite and firm conviction that Gamboa did not carry her burden of showing that

the USPS caused her fibromyalgia.

       Gamboa’s proof of causation consisted of the testimony of Dr. Meyer. Meyer is

not a specialist in chronic pain-related illnesses such fibromyalgia, but had treated about

two dozen fibromyalgia patients. Meyer testified that she diagnosed Gamboa as suffering

from fibromyalgia based on Gamboa’s verbal description of her symptoms. Meyer

explained that there is no objective diagnostic test for the disease: “You can’t test for

fibromyalgia. There is no test that will say that this patient has fibromyalgia because all

of the tests come back negative.”

       Dr. Meyer admitted that medical science does not know the pathology of

fibromyalgia, and the only text she relied on that she could identify, a “Primer on

Rheumatic Disease” published by the Arthritis Foundation, states that the etiology of the

disease is unknown. Meyer nevertheless opined that Gamboa’s “activities at the post

office” had caused her fibromyalgia. She based this conclusion on the fact that Gamboa

had been able to handle other stressful situations in her past such as her divorce without

manifesting symptoms of fibromyalgia. Meyer did little more than assume that since the

                                             11
onset of the disease followed the defendant’s conduct, the defendant’s conduct caused the

disease. Given Meyer’s lack of expertise, the vagueness of her testimony, and the lack of

a consensus in the medical community regarding the cause of fibromyalgia, we conclude

that Gamboa did not establish her entitlement to front and back pay.

       Gamboa argues that her proof was not based solely on the expert’s testimony, but

also on her own testimony and that of her husband. While Gamboa and her husband

testified that Gamboa had fibromyalgia or symptoms of that disease, it was Meyer, the

expert, who offered medical causation testimony that the conduct of the USPS caused the

disease. If, for the reasons discussed above, Dr. Meyer was unable to establish medical

causation, the lay testimony of Gamboa and her husband cannot in our view remedy this

failure of proof.

       Summarizing, we affirm the jury verdict because we cannot say that the plaintiff

failed to present “any evidence” in support of her claim of compensatory damages, but we

reverse the front and back pay awards because the district court committed an error of

law and a clearly erroneous assessment of the evidence. Because the district court

misplaced the burden of proof and conceded that its finding of causation was extremely

speculative and troubling, and although there is some evidence to support a finding that

the USPS’s unlawful retaliation caused Gamboa’s disability, on the entire record we are

left with a definite and firm conviction that the district court committed a mistake in

awarding front and back pay.

B.     Cross-Appeal

                                             12
       By way of what she characterizes as a protective cross-appeal, Gamboa argues that

the district court erred in granting summary judgment on her “retaliatory harassment”

claims. Gamboa does not fully explain the nature of these claims, but apparently urged

below that a pattern of harassing behavior in retaliation for making a Title VII complaint

can amount to a constructive discharge or other adverse employment action actionable

under Title VII, a theory recognized by some courts. We see no need to address this

argument. The USPS has not appealed the jury’s liability finding of retaliation. It has

only appealed the damages awarded for retaliation. Gamboa does not demonstrate that

her damages would be different under a retaliatory harassment theory. More specifically,

Gamboa does not suggest how her theory of retaliatory harassment should alter our

conclusions that her award of compensatory damages should stand, but her award of front

and back pay should not.

                                     CONCLUSION

       For the foregoing reasons, the judgment is modified to exclude the awards of front

pay and back pay to Gamboa and interest thereon.

       Judgment Affirmed as Modified.




                                            13
