Motion For Judgment On Verdict
Motion For Judgment On Verdict
Motion For Judgment On Verdict
GILBERTO ALVAREZ, §
§
Plaintiff §
§ Civil No. 6:16-cv-172-RP-JCM
-v- §
§
§
DEPARTMENT OF THE ARMY §
Defendant. §
Plaintiff Gilberto Alvarez files this Motion for Judgment on the Verdict, and
I. This Motion for Judgment is based upon the jury verdict and Plaintiff
is entitled to recovery of the full amount of back pay damages and
compensatory damages awarded by the jury.
On October 8, 2019, the jury found that the Department of the Army retaliated
against Alvarez because of his complaint of national origin discrimination when they
failed to promote him to a GS-11 position. Subsequently, the jury awarded Alvarez
$33,472 in back pay and $66,944 in both past and future compensatory damages for
a total of $100,416.
backpay award of $33,472 is not subject to a damage cap, and there is an abundance
of evidence in the record to support the jury’s award, Plaintiff is entitled to the full
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The jury awarded $33,472 for past pain and suffering, inconvenience, mental
anguish, and loss of enjoyment of life. Furthermore, the jury awarded an additional
$33,472 for future pain and suffering, inconvenience, mental anguish, and loss of
enjoyment of life. Here, the applicable cap is $300,000 because Department of the
Army employees more than 500 people. See 42 U.S.C. § 1981a(b)(3). Since the total
compensatory damage award of $66,944 is below the $300,000 limit, the damage cap
In addition to being well within the statutory damage caps found within Title
VII, Mr. Alvarez presented evidence during trial to support the jury’s award in the
form of his own testimony and his wife’s testimony. Therefore, the amount should be
awarded in full.
In Peques v. Mississippi State Employment Service, the Fifth Circuit said, “We
have stated in this Circuit that under Title VII interest is an item that ‘should be
included in back pay’ to make a victim whole.” 899 F.2d 1449, 1453 (5th Cir. 1990)
(quoting Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 263 (5th Cir. 1974)).
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The Fifth Circuit also holds that “[p]rejudgment interest should apply to all past
interest ignores the time value of money and fails to make the plaintiff whole.”
Thomas v. Tex. Dep’t of Crim. Justice, 297 F.3d 361, 372 (5th Cir. 2002). The Thomas
court went on to hold that because “the jury found that the plaintiff suffered past
emotional injuries, the district court was compelled to award prejudgment interest
When a federal statute is silent on the rate of prejudgment interest, courts look
to state law for guidance. See Hansen v. Cont’l Ins. Co., 940 F.2d 971, 984-85 (5th
Cir. 1991) abrogated on other grounds by CIGNA Corp v. Amara, 563 U.S. 421 (2011).
Here, the Texas Finance Code states that prejudgment interest should be calculated
at “the prime rate as published by the Board of Governors of the Federal Reserve
System on the date of computation.” Tex. Fin. Code § 304.003(a)(c)(1). The current
Finally, “District courts generally should calculate interest on back pay and
past damages based on the date of the adverse action.” Thomas v. Tex. Dep’t of Crim.
Justice, 297 F.3d 361, 372 (5th Cir. 2002). Here, the date of the adverse action was
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Applying the above, the simple daily interest rate on the backpay and past
$66,944 ∗ .050
= $9.17
365
$9.17 per day by the number of days since September 9, 2014 until the date judgment
is entered. For example, if judgment is entered on October 23, 2019, the number of
days would be 1870.1 Performing that calculation shows that the total prejudgment
Under Fifth Circuit precedent, “[i]n a failure to promote case, the preferred
instatement is not feasible, however, front pay is the appropriate award.” Julian v.
1
The number of days was calculated using the following computation tool:
https://www.timeanddate.com/date/durationresult.html?m1=9&d1=9&y1=2014&m2=10&d2=23
&y2=2019
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Mr. Alvarez testified that when the brace shop closed in Fort Sill, Oklahoma
he remained employed, continued to work at the same pay grade and with the same
salary until the Army found a new position for him, which was Fort Hood in 2007.
He further testified that had he been promoted to Supervisor of the Brace Shop at
Fort Hood in 2014, he would continue to have the same grade and step, GS-11, even
if the brace shop closed as the Army would seek to find him a new placement. There
is nothing in the evidence that even remotely suggests that once promoted to the GS-
11 position the Army would have suddenly abandoned this practice. Furthermore,
Alvarez testified, and the evidence2 showed that Alvarez had always received
Accordingly, the evidence shows that instatement with the commensurate pay
However, if the Court determines that a promotion is not feasible, front pay is
appropriate. The Fifth Circuit, in reversing and remanding a district court that failed
to award either reinstatement or front pay, summarized prior precedent in this area
as follows:
2
See Plaintiff’s Trial Exhibit 1, Alvarez Appraisal Data and Performance Evaluations
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Bogan v. MTD Consumer Grp., Inc., 919 F.3d 332, 336 (5th Cir. 2019) (quotations and
citations omitted).
Alvarez testified that the average pay increases he received for his GS-9, step
10 position from 2014 through 2019 was 1.4%, this included years that no pay
increases were given, ending with a salary of $66,868 for 2019. If that trend were to
continue until Alvarez’s retirement, from 2020 until 2027, by 2027 his anticipated
salary would be $74,734.64 as a GS-9, step 10. The jury found that but for Alvarez’s
complaint, he would have been promoted to the position of Supervisor of the Brace
Shop, which was a GS-11 position. Alvarez testified that he would have started that
position at GS-11, step 5, anticipating being GS-11, step 7 by 2019. With step and
pay increases of 1.4% from 2020 through 2017, Alvarez could have anticipated a
salary of approximated $90,430 by 2027 as a GS-11, step 10. Based on the trends, as
3
Based on Alvarez’s testimony these numbers represent his predicted salary each year from 2020
through 2027 using average annual pay increase of 1.4% each year.
4
These figures are based on the Fort Hood, Texas General Schedule Payscale at
https://www.generalschedule.org/states/texas/killeen-tx (last visited Oct. 21, 2019). However,
because the Payscale only shows salaries through 2019, the numbers used in this chart are adjusted
for an average 1.4% pay increase each year through 2020.
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For the foregoing reasons, this Court should order one form of prospective
relief. The Army should be required to promote Alvarez to the GS-11 position at the
appropriate step with the corresponding pay increase. Or, in the alternative, Alvarez
should be awarded front pay in the amount of $93,606.09, which represents front pay
PRAYER
For the forgoing reasons, Plaintiff moves for judgment on the jury verdict,
attorneys’ fees and costs, and to such other relief to which Plaintiff may be entitled.
Respectfully submitted,
WILEY WALSH, P.C.
Kalandra N. Wheeler
Texas Bar No. 24051512
Board Certified Specialist, Texas Board of Legal
Specialization, Labor and Employment Law
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CERTIFICATE OF CONFERENCE
I hereby certify that on October 22 and 23, 2019, I, Colin Walsh, Attorney for
Plaintiff, conferred with counsel for Defendant Liane Noble about the subject matter
/s/Colin Walsh
Colin Walsh
CERTIFICATE OF SERVICE
I hereby certify that on October 23, 2019, I served a copy of the foregoing on
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