                                   United States Court of Appeals,

                                             Fifth Circuit.

                                             No. 92-2156

                                         Summary Calendar.

         Pamela J. LOWE and Janet L. Swanton, Plaintiffs-Appellees, Cross-Appellants,

                                                   v.

       SOUTHMARK CORPORATION and Southmark Commercial Management, Inc.,
Defendants-Appellants, Cross-Appellees.

                                           Aug. 25, 1993.

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

Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.

        DeMOSS, Circuit Judge:

        Plaintiffs, Pamela J. Lowe and Janet I. Swanton, filed this lawsuit on May 4, 1988, in federal

district court against their employer, Southmark Corporation and Southmark Commercial

Management, Inc. ("Southmark"). The facts surrounding the case are elaborate, and the procedural

history intricate. Among other things, plaintiffs alleged that Southmark, a commercial real estate

firm, violated provisions of the Equal Pay Act, 29 U.S.C. § 206(d), by paying its female leasing

representatives lower wages and benefits than its male employees engaged in similar work.

Additionally, plaintiffs amended their complaint to include a charge of retaliation to their filing of a

complaint with the EEOC under both the Equal Pay Act and Title VII.

        At the conclusion of a six day trial, the jury found, among other things, that Southmark

willfully violated the equal pay provisions of the Equal Pay Act and that it had retaliated against

Swanton and Lowe. The jury awarded Swanton $175,000 and Lowe $150,000 in back pay and

retaliation damages. The court subsequently entered a judgment awarding an additional $63,600 in

liquidated damages to each plaintiff's recovery. Southmark appeals this judgment and raises three

points of error.

                                                   I.

        After the court entered judgment for plaintiffs, Southmark filed a motion for judgment
notwithstanding the verdict ("j.n.o.v.") which was denied. Southmark argues that the jury's verdict

on the equal pay claim was not supported by the evidence, and thus the district court's denial of its

j.n.o.v. motion constitutes reversible error.

       This Court's standard for reviewing a district court's denial of a motion for directed verdict

and for j.n.o.v. has been well-settled since it was announced by the Court in Boeing v. Shipman, 411

F.2d 365 (5th Cir.1969) (en banc). Under this standard, a j.n.o.v. motion should be reviewed only

if there is a "complete absence of probative facts to support a j ury verdict." Id. at 375 (emphasis

added). This standard has evolved because "it is the function of the jury as the traditional finder of

fact, and not the Court, to weigh conflicting evidence and inferences ...." Id.; see also Boyle v. Pool

Offshore Co., 893 F.2d 713, 715-17 (5th Cir.1990); Guthrie v. J.C. Penney Co., 803 F.2d 202, 207

(5th Cir.1986) (applying the same standard of review to employment discrimination cases). As such,

this Court avoids second-guessing conflicts in the evidence.

        Under such a strict standard, we cannot say that there are no probative facts to support the

jury's verdict that Southmark violated the Equal Pay Act in its treatment of plaintiffs Lowe and

Swanton. The jury found that Southmark "willfully" paid plaintiffs lower wages than males having

the same or similar work responsibilities. The record suppo rts such a finding. Plaintiffs offered

substantial evidence which could reasonably lead a jury to conclude that the pay discrepancies

between plaintiffs and similarly situated males violated section 206(d) of the Equal Pay Act. Thus,

it was not error for the district court to deny Southmark's motion.

                                                  II.

        Southmark's second point of error asserts that the district court's jury instruction on the Equal

Pay Act was improper and misleading. Because Southmark failed to object to the court's instruction,

it has failed to preserve the error, if any, for appellate review. Fed.R.Civ.P. 51.

                                                  III.

       In its third and final point of error, Southmark contends that the jury's calculation of damages

was incorrect.

        It is necessary that a jury's calculation of back pay be reasonable and supported by evidence
presented in the record. It is not, however, necessary that the amount be exact or certain. See

Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 260 (5th Cir.1974), cert. denied, 439 U.S.

1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1976) ("Unrealistic exactitude is not required."). Another

principle we must consider when reviewing a trial court's measure of damages was set forth in

Pettway. That is, all uncertainties should be resolved against the discriminating employer. Id. at 260-

61.

           In the present case, the jury awarded Swanton and Lowe $150,000 and $125,000,

respectively, in back pay damages. The factors used to compute the amount of back pay were proper,

and sufficient evidence exists in the record to support the amount of back pay.1

          Southmark's other assertion—that plaintiffs' award is improper because recovery is under both

the Equal Pay Act and Title VII—is also without merit. The district court's judgment reflects that

plaintiffs recovered damages under the Equal Pay Act alone and not Title VII. Consequently, the

court did not allow plaintiffs to double dip.

                                                    IV.

          The final issue to consider is the trial court's award of liquidated damages. On cross-appeal,

plaintiffs assert that the district court erred by not awarding an amount of liquidated damages equal

to the jury verdict in accordance with section 216(b) of the Equal Pay Act. This assertion has merit.

          The jury found that Southmark violated section 206(d)(1) of the Equal Pay Act, which forbids

the pay discrepancies based on sex, and section 215(a)(3), which forbids the retaliation. Civil liability

for violations of these sections is provided by section 216(b). For the purposes of liability under

section 216(b), the difference in pay based on sex is deemed to be "unpaid minimum wages or unpaid

overtime compensation." 29 U.S.C. § 206(d)(3). The relevant portion of section 216(b) reads:

          Any employer who violates the provisions of section 206 ... shall be liable to the employee
          or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime
          compensation, as the case may be, and in an additional equal amount as liquidated damages.
          Any employer who violates the provisions of section 215(a)(3) ... shall be liable for such legal
          or equitable relief as may be appropriate to effectuate the purposes of section 215(a)(3) ...

      1
   Although we realize that the specific amounts found by the jury for back pay and retaliation
damages do not match the amounts testified to by plaintiffs' experts, the total of these amounts
comports with plaintiffs' evidence.
       including without limitation employment, reinstatement, promotion, and the payment of
       wages lost and an additional equal amount as liquidated damages.

Id. § 216(b). The granting of liquidated damages is mandatory under section 216(b) except where

the employer shows to the satisfaction of the court that its act or omission was in "good faith" and

was based upon reasonable grounds for believing that it was not violating the Act. Id. § 260; Reeves

v. International Tel. & Tel. Corp., 616 F.2d 1342, 1352 (5th Cir.1980), cert. denied, 449 U.S. 1077,

101 S.Ct. 857, 66 L.Ed.2d 800 (1981); see also Mireles v. Frio Foods, Inc., 899 F.2d 1407, 1415

(5th Cir.1990). Only if the employer is able to make the showing required in section 260 does the

district court have discretion to award an amount of liquidated damages less than the amount awarded

in back pay and retaliation damages.

        In this case, there was no finding that Southmark violated the Equal Pay Act in good faith

and had reasonable grounds for believing that its conduct was not in violation of the Act.2

Consequently, liquidated damages were mandatory and the court had no di scretion to award an

amount less than the amount awarded as back pay and retaliation damages. Since the court awarded

each plaintiff only $63,600 in liquidated damages, the court erred.3

       Accordingly, we MODIFY the judgment to award Pamela J. Lowe liquidated damages in the

amount of $150,000 and Janet I. Swanton liquidated damages in the amount of $175,000. In all other

respects, we AFFIRM the district court's judgment.




   2
    The district court apparently submitted the question of Southmark's good faith and reasonable
belief to the jury by inquiring as to whether Southmark's violation of the Equal Pay Act was
"willful." By doing so, the district court erroneously applied a test of willfulness rather than the
specific standards clearly provided under section 260. LeCompte v. Chrysler Credit Corp., 780
F.2d 1260, 1263 (5th Cir.1986). This error, however, is not raised on appeal. We further note
that neither party objected to or predicates error upon the court's submission of this issue to the
jury.
   3
    According to the district court, this amount represented "the differential in base pay [between
plaintiffs and similarly situated male leasing representatives] from October 1, 1986 to August 1,
1990."
