Dallas Employment Trial Lawyer Austin Campbell
Summary: This article explores one aspect of the recent case Harris v. FedEx as a cautionary tale to employees that proving their case before a jury may be far from the end of their fight.
In late 2022, a federal jury in Houston made national headlines when it awarded former FedEx employee Jennifer Harris $366 million dollars in damages in her race discrimination suit against the shipping company. What has made far less of a splash (at least outside legal circles) is what happened later: in early 2024 the U.S. Court of Appeals for the Fifth Circuit granted a “remittitur.” Latin for “send back,” the court’s order reduced the jury verdict down to about .07% of the original amount—just under $250,000.
U.S. law students are generally taught that courts like to treat jury decisions as a “black box,” meaning they don’t like to examine them too closely and will defer to the jury on issues of fact. This case illustrates that that is not necessarily the case: even when an employee can prove that their employer violated the law, they may not be allowed to keep what the jury decided they deserve.
It appears the jury that heard the evidence in in Harris v. FedEx thought that Ms. Harris had been seriously harmed and that FedEx’s actions were indefensible. Thus, the award was largely to compensate Ms. Harris for the emotional distress of the discrimination and retaliation in her case, and to punish FedEx for its flagrant actions. One major justification the Fifth Circuit used to throw that award out was the so-called “maximum recovery rule.” The appellate court looked at cases with what it deemed to be “comparable facts,” and only within the (conservative) Fifth Circuit. Based on that rule, juries are only “supposed” to award verdicts in “comparable” cases within a certain margin of error—say, at most 150% of a similar case.
There are several problems with this. First, and most obviously, how are judges supposed to objectively decide on what are “comparable” cases or what is an acceptable margin when it comes to things like mental anguish? The answer, in my opinion, is that they cannot; or at least not better than a jury. The judges of the Fifth Circuit, unlike the jury in this case, were not present for the live testimony in that case. They are reading the evidence based on a written record, not hearing and seeing it directly. The Fifth Circuit’s decision practically admits to this problem, noting that it has been “inconsistent” in applying the maximum recovery rule in the past and that the standard is ultimately based on whether the “court is left with the perception that the verdict is clearly excessive.” Both parties in the Harris case cited different decisions they argued were comparable, and the Court was left to pick and choose which it preferred. See also Lawrence James Madigan, Excessive Damage Review in the Fifth Circuit: The Conflict and Quagmire Continue, 45 Tex. Tech L. Rev. 453 (2013).
Second, the maximum recovery rule is not found in any federal civil rights statute. Rather, it is something the Fifth Circuit itself created in 1970 in the case Gorsalitz v. Olin Mathieson Chem. Corp. The U.S. Supreme Court has never endorsed it. Indeed, one of the statutes Ms. Harris had originally sued FedEx for violating, 42 U.S.C. § 1981, by definition has no maximum upper limit on damages (including compensatory or punitive damages). The Fifth Circuit actually eliminated those claims from the case in its decision, which is problematic for a whole different set of reasons.
Finally, the rule creates a kind of Catch-22 similar to the qualified immunity doctrine, another judge-created rule that has come under scrutiny lately. Qualified immunity essentially allows police officers who have been sued to avoid liability unless they have violated a “clearly established” constitutional right of someone. What this means in practice, however, is that an alleged victim of police violence must point to some past decision that has already decided that the specific right in their case is clearly established. But courts will not reach such a decision unless another court already did so. This makes it extremely difficult to hold police officers accountable.
Similarly, under the maximum recovery rule, a jury awarding a law verdict will be overturned unless another jury in a “comparable” case already awarded a verdict around that same amount in the past. But it is impossible for a prior jury to have done that if that verdict is also subject to remittitur based on comparable past cases. This can have the effect of essentially anchoring future jury awards to a past, overriding modern juries’ mores and sensibilities.
The long and short of all of this is that just because an employee can prove their case to a jury of their peers, does not mean a judge might not reject that outcome. Vindication can, unfortunately, turn to heartbreak. Ultimately, only the U.S. Supreme Court might be able to fix this problem.
If you believe your employer has violated your rights, you should talk to an employment attorney like those at Rob Wiley, P.C.