     Case: 10-50458        Document: 00511669638         Page: 1     Date Filed: 11/17/2011




             IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                      Fifth Circuit

                                                                                FILED
                                                                           November 17, 2011

                                          No. 10-50458                        Lyle W. Cayce
                                                                                   Clerk

ROBERT J. KLEBE,

                                              Plaintiff - Appellee - Cross-Appellant
v.



UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT SAN ANTONIO,

                                              Defendant - Appellant - Cross-Appellee



                      Appeals from the United States District Court
                            for the Western District of Texas
                                  USDC No. 1:08-CV-91


Before JOLLY and HAYNES, Circuit Judges, and RODRIGUEZ*, District Judge.
PER CURIAM:**
        After carefully studying the parties’ briefs, hearing oral argument, and
probing the record at great length, we AFFIRM the judgment of the trial court
in every respect, except for its award of $4,000 in expert fees to Dr. Robert Klebe
(“Klebe”), which we REVERSE AND VACATE for the following reasons.


        *
            District Judge of the Western District of Texas, sitting by designation.
       **
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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      1. The University of Texas Health Science Center at San Antonio’s (the
“University”) argument that Klebe failed to establish an adverse employment
action has not been preserved. The trial court instructed the jury that, “you are
further instructed that Dr. Klebe experienced an adverse employment action
when he received a ‘needs improvement’ rating from the [Post Tenure
Evaluation Committees] in 2006 and 2008, and that failure to provide a salary
increase would also qualify as an adverse employment action.” The University
failed to object to the instruction and did not submit an alternate jury
instruction.
      2. We hold that the evidence is sufficient to support the jury’s finding of
a causal link between the protected activity and the retaliatory, adverse
employment action. The record shows the following evidence: (1) manipulation
of the PTEC committee; (2) coincidental timing of the negative evaluations, when
Klebe only received negative evaluations after he filed the lawsuit; (3) Dr.
Walter’s animus toward Klebe after he filed the age discrimination claim; and
(4) Klebe received two out of three negative evaluations of over 500 evaluations
conducted by PTECs across the University of Texas system. Furthermore, the
record indicates that all of Klebe’s 2006 reviewers – including the final reviewer,
President Cigarroa – knew or should have known of Klebe’s age discrimination
claim and lawsuit. Taken in its entirety, this evidence suggests that, at the very
least, there is adequate evidence for a reasonable jury to conclude that the filing
of the discrimination charges and the lawsuit had a causal connection with the
negative evaluations.
      3. With respect to the second trial, which was limited to damages, we hold
that there is sufficient evidence to support the jury’s award for mental anguish
damages, including Klebe’s testimony relating his alcohol abuse, physical
symptoms, and mental suffering that resulted from the University’s retaliation.
We further note that each of the juries submitted high damages awards,

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significantly above the damages awarded after the district court applied the
statutory cap. This conclusion of two different juries in evaluating the mental
anguish resulting from the University’s conduct merits some respect for the view
that the district court did not err in granting the maximum statutory award.
      4. We furthermore affirm the denial of the University’s motions for
mistrial. After reviewing the relevant trial transcript, we find that the district
court took appropriate action to counteract Klebe’s inappropriate remarks.
      5.   The University also appeals the lower court’s award of attorney’s fees
and expenses as well as the award of expert fees.
      The University argues that Klebe’s attorney’s fees and expenses are
excessive because: (1) Klebe prevailed on only one of several causes of action he
brought against the University; (2) Klebe’s counsel did not segregate the work
he did on the retaliation claim from the work he did on other aspects of the case;
and (3) Klebe’s counsel provided minimal billing notation about the tasks he was
performing. The trial court addressed each of these arguments in its opinions
and downwardly adjusted Klebe’s counsel’s fees.
      We also affirm the $10,947.27 in expenses that the trial court granted
Klebe. The University contends that Texas law does not allow for expenses. The
trial court correctly held that, when a legislature expressly enacts a law to
correlate with federal law, courts should look to analogous federal precedent for
guidance when interpreting the Texas Act. Rodriguez v. Conagra Grocery Prods.
Co., 436 F.3d 468, 473 (5th Cir. 2006).
      The trial court additionally awarded Klebe $4,000 for expert fees related
to testimony that the University retaliated by keeping Klebe’s salary constant.
The jury, however, found the University would have kept Klebe’s salary constant
absent a retaliatory motive, and therefore provided no damages for this claim.
Klebe has not appealed this jury finding. Thus, Klebe is not the prevailing party
on this claim. Intercontinental Group Partnership v. KB Home Lone Star L.P.,

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295 S.W.3d 650, 656 n.27 (Tex. 2009). We therefore hold that the award of
$4,000 in expert fees to Klebe was error and accordingly reverse. Burgmann
Seals Am. Inc. v. Cadenhead, 135 S.W.3d 854, 862 (Tex. App. 2004).
       6. With respect to Klebe’s cross-appeal challenging reduction of his
attorney’s fees and expenses and the reduction of the damages award by
applying the statutory cap, we also affirm.
       Retaliation and discrimination claims are separate claims depending on
different theories and different facts – a plaintiff could successfully pursue one
or the other without needing to prove the validity of the other. Indeed, as
demonstrated here, a party will often be a losing party on one claim and the
prevailing party on the other, and attorney’s fees are awarded only to the
prevailing party. We hold that the trial court did not abuse its discretion by
separating losing claims from prevailing claims for the purpose of calculating
attorney’s fees.1
       Klebe further argues that the trial court erred by applying a damages cap
to reduce the jury’s damages award. He contends that the University failed to
plead that the cap should apply. The University conceded, however, that it had
more than five hundred employees and, consequently, it was not necessary for
it to plead anything to receive the benefit of the statutory cap. Arismendez v.
Nightingale Home Health Care, Inc., 493 F.3d 602, 610 n.7 (5th Cir. 2010);
Edwards v. Aaron Rents, Inc., 482 F. Supp. 2d 803, 818 (W.D. Tex. 2006).




       1
         Klebe raises two additional arguments, which are likewise meritless. He first argues
that the trial court erred by declining to accept his counsel’s opinion of the percentage of work
performed for the retaliation claim. The trial court did consider Klebe’s counsel’s opinion, R.
at 3882-84, but found it inappropriate because it included unrelated claims. Second, Klebe
contends that the trial court departed downward from his attorney’s customary hourly rate
of $300 to an effective hourly rate of $80.66. The trial court explicitly applied a $300 an hour
rate to the hours it allowed.

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      Thus, in summary: (1) Klebe satisfactorily established the elements of
retaliation; (2) there is sufficient evidence to support the mental anguish award;
(3) the trial court properly denied the University’s motions for mistrial; (4) the
trial court did not err in its award of attorney’s fees and expenses; (5) the trial
court erred in its award of expert fees, and (6) the trial court did not err in
applying the statutory cap to Klebe’s mental anguish damages.
      The judgment is AFFIRMED in all respects, with the exception of the
$4,000 in expert fees awarded to Klebe, which we REVERSE, and VACATE.
Accordingly, we REMAND for entry of judgment in accordance with this opinion.


                    AFFIRMED in part, REVERSED and VACATED in part, and
                                            REMANDED for entry of judgment.




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