SIDNEY FITZWATER, District Judge
In this suit arising from the alleged refusal of a public school district Superintendent to consider a prospective candidate for the position of middle school Assistant Principal unless she placed her children — who attended a private Christian school — in public school, the Superintendent moves for summary judgment, and he and the defendant school district both move to strike the updated report of plaintiff's damages expert. For the reasons that follow, the court denies both motions, grants plaintiff leave to file a third amended complaint that seeks punitive and mental anguish damages against the Superintendent, and allows him to depose plaintiff concerning such damages.
Plaintiff filed on December 28, 2004 a motion for leave to file an unopposed motion for oral argument on the motion for summary judgment. Because the court declines to hear oral argument on the motion, see N.D. Tex. Civ. R. 7.1(g), it denies the motion for leave.
I
The relevant background facts and procedural history of this case are set out in prior opinions of the court and need not be recounted at length. See Barrow v. Greenville Indep. Sch. Dist., 2002 WL 628665, at *1 (N.D. Tex. Apr. 18, 2002) (Fitzwater, J.) (" Barrow II"); Barrow v. Greenville Indep. Sch. Dist., 2002 WL 255484, at *1 (N.D. Tex. Feb. 20, 2002) (Fitzwater, J.), rev'd, 332 F.3d 844 (5th Cir.), cert. denied, 540 U.S. 1005 (2003). To the extent the court sets out below certain facts that are pertinent to its decision on the motion for summary judgment, it does so in a light favorable to plaintiff as the summary judgment nonmovant and draws all reasonable inferences in her favor. See, e.g., Clift v. Clift, 210 F.3d 268, 270 (5th Cir. 2000).
Plaintiff Karen Jo Barrow ("Barrow") sues defendants Greenville Independent School District ("GISD") and Dr. Herman Smith ("Dr. Smith"), seeking to recover against both defendants under 42 U.S.C. § 1983 for violations of her rights under the First and Fourteenth Amendments and against GISD under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. She also brings state-law causes of action arising under Chapter 110 of the Texas Civil Practice and Remedies Code and Article I, § 6 of the Texas Constitution. Barrow filed this suit in May 2000. She was promoted to Assistant Principal of Greenville High School in 2001 and to Principal in 2004.
Defendants jointly motion to strike the updated report of Barrow's damages expert or, alternatively, to depose the expert and designate a rebuttal expert. Dr. Smith moves for summary judgment, contending that Barrow cannot establish that she suffered, or that her protected activity caused her to suffer, an adverse employment action; he can prove that, even if Barrow had applied for the position of middle school Assistant Principal, she would not have been hired; Barrow is not entitled to economic damages because she was promoted and has failed to mitigate her damages; she is not entitled to mental anguish or punitive damages because she did not properly plead them and they are not supported by evidence; and he is entitled to attorney's fees because Barrow's claims have become frivolous.
II
Because it impacts the resolution of parts of Dr. Smith's motion for summary judgment, the court first considers defendants' joint motion to strike updated report or, in the alternative, depose and designate a rebuttal expert.
A
In July 2001 Barrow designated J. Herbert Burkman, Ph.D. ("Dr. Burkman") as an expert and disclosed a report that contained his conclusions regarding Barrow's expected economic losses and the bases for his opinions. In November 2003, after GISD had promoted Barrow to Assistant Principal of Greenville High School, Barrow's counsel asked Dr. Burkman to submit an updated report. Dr. Burkman prepared the report, and Barrow served a copy on defendants. The updated report was prepared and served after the court-ordered deadlines for the parties to complete discovery and designate rebuttal experts.
Defendants move to strike the updated report or, alternatively, to depose Dr. Burkman and designate a rebuttal expert. They argue that Dr. Burkman has materially and substantially altered his testimony concerning Barrow's economic damages on two key issues: he has substantially altered his assumptions about what sort of income Barrow could have expected had she been hired as middle school Assistant Principal in 1998, and he has completely changed his testimony concerning Barrow's entitlement to future lost wages.
By "striking" the updated report, defendants mean that the court should prohibit Barrow from offering testimony that contradicts the expected income scenarios contained in Dr. Burkman's original report.
Defendants also appear to assert that Dr. Burkman's revised opinion demonstrates that Barrow's salary has in fact exceeded what he originally projected she would earn. See Ds. Rep. Br. at 5. This argument, which defendants acknowledge is made in Dr. Smith's summary judgment motion, fails for the reasons explained infra at § IV.
B
Dr. Burkman has not materially and substantially altered his testimony, and, despite the absence of an explanation in his updated report, it is apparent how he reached the revised loss assessment. Nor has he completely changed his testimony concerning Barrow's entitlement to future lost wages. He has only revised it to reflect adjusted projections based on historical salary data derived from a period after he prepared his original report and to use one expected income scenario (the most conservative one) rather than three.
In his original report, Dr. Burkman presented opinions and supporting data regarding three scenarios. He assumed under one scenario that, had Barrow been promoted to Assistant Principal in 1998, she would have remained in that position until retirement. Because the report was created in 2001, Dr. Burkman used actual GISD salary figures to determine what Barrow's salary would have been in academic years ("AYs") 1998-1999 through 2000-2001. To project what her future income would be as an Assistant Principal, Dr. Burkman assumed that Barrow would receive annual salary increases of 3%, and he applied this assumption for AYs 2001-2002 through 2013-2014. When Dr. Burkman updated his report in November 2003, however, he was aware of Barrow's actual income figures as an Assistant Principal in AYs 2001-2002 through 2003-2004, and it was unnecessary to assume 3% annual increases. In fact, the actual income of an Assistant Principal had risen at a rate greater than 3% annually. Dr. Burkman substituted the historical figures for the projected ones for the years that had elapsed since his original report, and he then projected Barrow's future income, beginning in AY 2004-2005, assuming 3% annual increases. This substitution of historical figures in the updated report in place of projected ones in the original report explains why Dr. Burkman deviated from his original projections for AYs 2001-2002 through 2003-2004.
In the other two scenarios, he assumed that Barrow would have been promoted to Assistant Principal, then to Principal of the middle school in academic year ("AY") 2003-04, and then to Assistant Superintendent in AY 2008-09. The updated report does not include these scenarios.
In his original report, Dr. Burkman projected that Barrow's income in AY 2003-2004 would be $48,759.00, if she had been promoted to Assistant Principal in 1998. When Dr. Burkman prepared his updated report, however, Barrow's actual income as Assistant Principal was $53,190 in AY 2003-2004. Therefore, when Dr. Burkman updated his report and projected future income beginning in AY 2004-2005 using the 3% annual increase assumption, his starting point in AY 2003-2004 was $4,431.00 higher ($53,190 versus $48,759.00) than for the same academic year of his original report. This difference affected her projected salary for each successive year because the base amount for adding 3% salary increases was greater, resulting in projected cumulative income in an amount $64,195.00 greater than the original calculation ($909,528.00 versus $845,333.00). Defendants complain that this increase is unexplained in Dr. Burkman's updated report, but the difference is readily discernible and calculable.
Dr. Burkman's changes to Barrow's expected income as Assistant Principal during AYs 2001-2002 through 2003-2004 between his original and updated reports do not constitute a modification in the formula he used to compute Barrow's expected income. Rather, the difference is explained by his use of historical, rather than projected, income figures for AYs 2001-2002 through 2003-2004. Accordingly, the court denies defendants' motion to strike his updated report.
C
Defendants move in the alternative for leave to depose Dr. Burkman and to designate a rebuttal expert. The court denies these alternative requests in the circumstances presented here.
Defendants acknowledge that, during discovery, their retained expert, Allyn B. Needham, Ph.D. ("Dr. Needham"), reviewed Dr. Burkman's testimony and original report and did not disagree with the analysis he employed. They concluded on this basis that there was no need to designate an expert on economic damages. As the court explains above, it is clear that Dr. Burkman's updated report simply substitutes historical salary data for projected income and recomputes his opinion, assuming the same 3% annual increases as in his original report. Dr. Needham had no objection to the use of this formulation. See Ds. Mot. Strike at 7. And defendants do not explicitly dispute the accuracy of the historical salary figures for AYs 2001-2002 through 2003-2004 that were used to recompute Barrow's damages. Defendants have failed to show that the court should allow additional discovery and the designation of a rebuttal expert this close to trial where, as here, the damages expert has essentially done nothing more than restate his original opinion, based on the same methodology, using actual rather than projected salary data. Nor does the fact that he has reduced three scenarios to one support such relief. Defendants have not shown that their inability to depose Dr. Burkman concerning his reliance on a scenario that produces lower expected income than originally projected for those scenarios ($909,528.00 versus $910,898.00), or their inability to designate an expert to "rebut" such a modification, is prejudicial. Under these circumstances, the opportunity to cross-examine Dr. Burkman at trial concerning the changes in the updated report is plainly an adequate remedy.
Barrow objects to use of Dr. Needham's affidavit in support of defendants' motion on grounds that he was neither designated under Fed.R.Civ.P. 26(a)(2)(A) nor disclosed pursuant to discovery requests. The court overrules the objection. In her opposition to defendants' motion to strike, Barrow cites Dr. Needham's statements supporting Dr. Burkman's analysis. It would be unfair to permit Barrow to use Dr. Needham's affidavit for this purpose and then object to it for all other purposes. Assuming arguendo that Dr. Needham's affidavit otherwise would be objectionable, the court concludes that Barrow has waived her objection by employing the affidavit in support, and the court considers Dr. Needham's affidavit in considering defendants' motion to strike. The court also denies as moot Barrow's objection to use of Dr. Needham's affidavit as to the motion for summary judgment. Assuming arguendo that Dr. Needham's testimony is admissible for summary judgment purposes, considering the testimony does not alter the court's decision or reasoning in its disposition of Dr. Smith's motion for summary judgment.
Moreover, if the court grants defendants' request to designate a rebuttal expert, it would allow Barrow to depose the expert. It would be ambitious to believe that this process would be completed reasonably in advance of the March 7, 2005 trial date. Allowing defendants now to designate a rebuttal expert would likely necessitate a trial continuance. Given the age of this case and the special arrangements the court has made to try the case when set, the court declines to grant a right of designation that would result in delaying the trial. Accordingly, the court denies defendants' alternative request to designate a rebuttal expert.
III
Dr. Smith moves for summary judgment dismissing Barrow's § 1983 claims, contending that she cannot establish that she suffered an adverse employment action because she cannot show that she applied for the job of middle school Assistant Principal; she cannot show that there was a causal connection between her protected activity and the adverse employment action and that, but for her decision to enroll her children in private school, she would have been promoted to the position of Assistant Principal; and GISD would have reached the same decision even in the absence of the protected conduct, that is, she would not have been selected even had she applied and been interviewed.
A
The court will consider Dr. Smith's first two arguments together, because they are properly analyzed under the causation-type element of her § 1983 claims. To establish these claims, Barrow must prove, inter alia, that her failure to receive the promotion to Assistant Principal was motivated by her exercise of the constitutional right in question. See Foley v. Univ. of Houston Sys., 355 F.3d 333, 341 (5th Cir. 2003) (addressing First Amendment retaliation claim).
Citing the holding in Mota v. University of Texas Houston Health Science Center, 261 F.3d 512 (5th Cir. 2001), that "action does not rise to the level of an `adverse employment action' when it fails to have more than `mere tangential effect on a possible future ultimate employment decision,'" id. at 519, Dr. Smith maintains that Barrow cannot show that she suffered an adverse employment action because she cannot demonstrate that she applied for the position. This reasoning misunderstands the holding of Mota and similar decisions. While some actions are insufficient of themselves to constitute adverse employment actions, the failure to receive a promotion due to a direct refusal to promote is considered to be an adverse employment action. See, e.g., Barrow, 332 F.3d at 848 ("Refusal to promote is an adverse employment action." (citing Harrington v. Harris, 118 F.3d 359, 365 (5th Cir. 1997)). Dr. Smith's argument is thus properly framed as contesting Barrow's ability to prove that the decision not to promote her was motivated by her exercise of a constitutional right.
As pleaded in her first amended complaint, the following federal constitutional rights were abridged: (1) the right under the First and Fourteenth Amendments to protection of family relationships, the right to direct one's children's educations, and the right of familial privacy (count I); (2) a liberty interest and due process right under the Fourteenth Amendment Due Process Clause to make decisions concerning familial relationships and practices, including the direction and control of one's children's education (count II); and (3) the right under the First Amendment Free Exercise Clause to the free exercise of one's religious faith by choosing to educate one's children in a religious educational institution according to that faith (count III).
In arguing the elements Barrow must prove, Dr. Smith cites Foley, which sets out the requirements of a First Amendment retaliation claim. Barrow relies on the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), that § 1983 borrows from Title VII in the context of a public employment discrimination case. Because Dr. Smith is not entitled to summary judgment under the formulation on which he relies, the court will assume for purposes of deciding this motion that Foley prescribes the proper analytical framework.
Dr. Smith argues that Barrow must establish that she applied for, and was denied, a promotion to the position of Assistant Principal. The court disagrees that Barrow's failure to submit a formal application precludes her claims for failure to promote, because she may prevail in the absence of an application if applying for the job would have been futile. See Gutowsky v. County of Placer, 108 F.3d 256, 260 (9th Cir. 1997) ("The Supreme Court has held, however, that a plaintiff need not apply for a job if the application would have been futile." (citing Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 365-68 (1977), and holding that, although it was a Title VII case, it could be applied in the context of a § 1983 claim)).
To demonstrate futility, Barrow "must show that . . . she `was a potential victim of unlawful discrimination' and, to that end, . . . must establish that . . . she `would have applied for the job had it not been for those [discriminatory] practices.'" Id. (quoting Int'l Bhd. of Teamsters, 431 U.S. at 367-68). To meet this requirement, Barrow has adduced evidence that, during the 1998 application period, Dr. Smith and other members of the Superintendent's Council ("Council") knew of Barrow's interest in the position. P. App. 422. Dr. Smith dispatched two members of the Council on separate occasions to inform Barrow that she would be required to move her children into public school to be considered for promotion to Assistant Principal. Id. at 346-47, 422-25. She advised both Council members that she wanted to become Assistant Principal but would not remove her children from private school. Id. at 5-6. Barrow avers that, during a meeting with Dr. Smith, he advised her that she had no future in GISD administration as long as she enrolled her children in private school. Id. at 7. Viewing this evidence in a light most favorable to Barrow as the nonmovant, a reasonable trier of fact could find that Barrow was deterred from filing a formal application for promotion in 1998 due to communications she had received from GISD officials indicating that her application would be unsuccessful if she continued to enroll her children in private school. See Barrow II, 2002 WL 628665, at *7; cf. Simmons v. Lyons, 746 F.2d 265, 268 (5th Cir. 1984) (affirming summary judgment for defendant where plaintiffs failed to reapply for jobs at end of term because of "understanding," unsupported by factual basis, that they would not be considered for rehire). Accordingly, the court denies Dr. Smith's motion in this respect.
B
Dr. Smith seeks summary judgment on the ground that Barrow would not have been promoted even if she had been interviewed for the position of Assistant Principal. He contends that Barrow's responses to interview questions would have precluded her promotion.
Under the analytical framework of Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977), once a plaintiff demonstrates that an impermissible criterion was a motivating factor in an employment decision, the employer may avail himself of an affirmative defense to liability by demonstrating by a preponderance of the evidence that the same decision would have been made without consideration of the impermissible factor. See id. at 287; Brady v. Fort Bend County, 145 F.3d 691, 712 (5th Cir. 1998). Because Dr. Smith will have the burden of proof at trial on this affirmative defense, to be entitled to summary judgment on this basis, he "must establish `beyond peradventure all of the essential elements of the . . . defense.'" Bank One, Tex., N.A. v. Prudential Ins. Co. of Am., 878 F. Supp. 943, 962 (N.D. Tex. 1995) (Fitzwater, J.) (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)).
Dr. Smith contends that Council members used a standard battery of questions when interviewing applicants for the middle school Assistant Principal position. The interviewers listened for particular words in an applicant's answers and assigned a numerical value based on how many times the applicant used specified words or phrases. The four applicants who obtained the highest interview scores were considered finalists for the position. Barrow was asked the same battery of questions during her 2001 deposition. Both Dr. Smith and Assistant Superintendent William Smith scored her responses. Dr. Smith asserts that Barrow's interview scores demonstrate that she would have placed near the bottom in a rank ordering of the candidates' scores, and would not have been considered a finalist.
Barrow maintains that evidence of her interview score is irrelevant because, in a mixed-motives case, an employer's legitimate reason for discharging an employee is insufficient if the reason did not motivate the employer at the time of the decision. This case is not a mixed-motives case. Dr. Smith does not contend that, in declining to interview Barrow, he considered both the patronage policy and her interview scores. Cf. Rachid v. Jack In The Box, Inc., 376 F.3d 305, 309 (5th Cir. 2004) ("A mixed-motives case arises when an employment decision is based on a mixture of legitimate and illegitimate motives." (quoting Louis v. E. Baton Rouge Parish Sch. Bd., 303 F.Supp.2d 799, 802 (M.D. La. 2003))). He relies on the evidence in question to establish that she would not have received the promotion even had she interviewed, because her scores would not have qualified her as a finalist.
"[W]here a plaintiff challenges a discrete governmental decision as being based on an impermissible criterion and it is undisputed that the government would have made the same decision regardless, there is no cognizable injury warranting relief under § 1983." Texas v. Lesage, 528 U.S. 18, 21 (1999) (per curiam). Dr. Smith has not demonstrated beyond peradventure, however, that GISD would have made the same decision anyway. The interview questions were asked of Barrow three years after the employment decision was made, and she was questioned by opposing counsel in the context of a deposition rather than by school administrators in a job interview. To conclude that the scores from Barrow's deposition testimony establish beyond peradventure that Barrow would not have been a finalist, the court would have to infer that her answers during the 2001 deposition would have been the same in a 1998 job interview, and that her answers were scored as they would have been in 1998. The court cannot draw such inferences in favor of Dr. Smith. See Malacara v. Garber, 353 F.3d 393, 398 (5th Cir. 2003) ("In deciding a summary judgment motion, a court must review the facts drawing all reasonable inferences in the light most favorable to the nonmovant." (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (emphasis added))). Because Dr. Smith's argument for summary judgment relies on inferences the court cannot permissibly draw, it must fail. Accordingly, the court denies his motion on this basis.
IV
Dr. Smith next moves for summary judgment on the ground that Barrow is not entitled to any economic damages because her salary exceeds the damages established by her expert, Dr. Burkman. He also argues that she has failed to mitigate her damages.
Dr. Smith also reurges the arguments set out in his motion to strike, contending that Dr. Burkman's updated report should be stricken. These arguments fail for the reasons addressed supra at § II.
A
Dr. Smith maintains that Barrow is not entitled to economic damages because she has not incurred a net economic loss. To support this argument, Dr. Smith adds Barrow's anticipated income for AYs 1998-1999 through 2013-2014, as forecast by Dr. Burkman, to arrive at an aggregate sum. Dr. Smith then adds (1) her actual salary from AYs 1998-1999 to 2004-2005 and (2) her anticipated salary as Principal for AYs 2005-2006 to 2013-2014 to compute another aggregate sum. He then maintains that the second sum is larger than the first, and that, on this basis, Barrow cannot contend that she has suffered economic damages. The court declines to grant summary judgment on this basis.
Dr. Smith predicts Barrow's future income by using the same assumption of a 3% annual increase applied by Dr. Burkman.
Dr. Smith essentially argues that the years in which Barrow is now anticipated to make more than Dr. Burkman originally forecast effectively offset the decreased salary Barrow suffered between AYs 1998-1999 to 2000-2001, the years she remained a classroom teacher. He cites no authority, however, that such an "aggregate" approach to calculation of damages is permissible. Absent such authority, the court declines to employ this method. Barrow's evidence that she was paid less in academic years 1998-1999 through 2000-2001 than she would have received as Assistant Principal is sufficient to create a genuine issue of material fact that she has incurred economic damages. Accordingly, Dr. Smith is not entitled to summary judgment on this basis.
Although not on perfectly analogous facts to those in the instant case, other courts have refused to use similar aggregation methods in the context of calculating Title VII damages. See Godinet v. Mgmt. Training Corp., 56 Fed. Appx. 865, 871-72 (10th Cir. 2003) (unpublished opinion); Wirtz v. Kan. Farm Bureau Servs., Inc., 311 F.Supp.2d 1197, 1230 (D. Kan. 2004); Hartman v. Duffey, 8 F.Supp.2d 1, 6 (D.D.C. 1998).
B
The court next considers Dr. Smith's contention that he is entitled to summary judgment denying past lost wages because Barrow has not mitigated her damages.
1
An aggrieved party has a duty to avail herself of reasonable opportunities to mitigate her damages. See Gladden v. Roach, 864 F.2d 1196, 1200 (5th Cir. 1989). "Whether an injured person has mitigated [her] damages requires a factual assessment of the reasonableness of [her] conduct." Hill v. City of Pontotoc, Miss., 993 F.2d 422, 427 (5th Cir. 1993). Because Dr. Smith has the burden of proving that Barrow failed to use reasonable diligence in mitigating her damages, see Roane v. Callisburg Independent School District, 511 F.2d 633, 640 (5th Cir. 1975), to be entitled to summary judgment, he must establish beyond peradventure all of the essential elements of the defense, Bank One, 878 F. Supp. at 962.
2
Dr. Smith asserts that Barrow failed to apply for eight promotions between 1998 and 2001. He also contends that, when asked by a Principal in 2000 whether he could submit her name to be considered for promotion, she declined. Barrow testified in her deposition, however, that she declined to pursue the promotion because she believed the patronage policy would preclude her from being considered, and she did not want to "go through it" again. Barrow has adduced evidence that Dr. Smith did not consider her for promotion because of the patronage policy, and that he told her she had no future in administration at GISD as long as her children were enrolled in private school. Viewing this evidence in a light most favorable to Barrow, a reasonable trier of fact could find that she reasonably believed seeking a promotion would have been futile. Cf. Nagarajan v. Tenn. State Univ., 187 F.3d 637, 1999 WL 551360, at **4 (6th Cir. July 19, 1999) (unpublished table opinion) (holding that professor did not breach duty to mitigate damages when he failed to reapply for tenure where he had reasonable basis to believe reapplying would have been futile). Dr. Smith has not demonstrated that a reasonable trier of fact could only find that Barrow was not reasonably diligent in mitigating her damages. He has therefore failed to establish that Barrow breached her duty to mitigate her damages.
3
Dr. Smith also argues that Barrow failed to mitigate her damages because she did not exhaust her administrative remedies. Specifically, Dr. Smith contends that Barrow did not avail herself of formal grievance procedures under the Texas Education Code. He does not, however, explain how Barrow would have mitigated her damages by filing a formal grievance. Instead, he states that "[i]f all Plaintiff wanted was an apology and a reprimand, those things could have happened quickly and without inconveniencing the federal courts[.]" D. Br. at 23. Dr. Smith has not adduced any evidence that Barrow could have obtained back pay or a promotion, or otherwise could have mitigated her damages, by filing a formal grievance. He has not conclusively established that her failure to grieve her denial of promotion was unreasonable. Dr. Smith has therefore failed to establish beyond peradventure that Barrow unreasonably failed to mitigate her damages by not formally grieving the denial of a promotion.
C
Dr. Smith asserts that, as a matter of law, Barrow's 2001 and 2004 promotions preclude her from establishing that she has suffered future lost earnings. He does not contend that Barrow has failed to adduce evidence of future damages; he instead produces evidence in an attempt affirmatively to demonstrate that Barrow cannot prove future damages.
Dr. Smith points to Dr. Burkman's deposition testimony that, if Barrow were promoted to Assistant Principal, she would have no future lost wages. Dr. Burkman's updated report indicates, however, that Barrow has suffered lost future income notwithstanding her 2001 promotion to Assistant Principal. Although Dr. Burkman could have more clearly explained in his report and affidavit why Barrow continues to incur future damages after her 2001 promotion, it is evident that he essentially opines that Barrow would earn a higher salary in future years of employment had she been promoted to Assistant Principal at an earlier date. For example, in his updated report, Dr. Burkman indicates that Barrow's actual salary as Assistant Principal in AY 2003-2004 was $51,906, but that her salary as Assistant Principal would have been $53,190 if her administrative career had begun in 1998. D. App. 696. Implicit in his analysis is the opinion that GISD's salary tables compensate administrators in the same position differently, according to tenure. That is, he implicitly opines that Barrow's promotions do not cut off future damages because, regardless of the administrative position she occupies or the salary she receives, her income would be greater if she had been promoted three years earlier, because she will be compensated as someone who began her administrative career in 2001 instead of 1998. There is a genuine issue of material fact whether Barrow's promotions have completely ameliorated any loss of future income resulting from her denial of promotion in 1998. Accordingly, the court denies Dr. Smith's motion on this ground.
Although Dr. Burkman prepared his updated report before GISD promoted Barrow to the position of high school Principal in June 2004, at the substantially higher salary of $70,000, this reasoning would also apply equally to that promotion. In other words, had she been promoted in 1998, her salary as Principal would be higher each year compared to what she would have received based on a tenure as administrator that began in 2001. Of course, if GISD can establish at trial that this is not true, and that her salary as Principal would be the same regardless, it may prove that she has lost no future wages. At the summary judgment stage, however, GISD has not met its burden of eliminating a genuine issue of material fact on an issue as to which it has the burden of proof.
Dr. Smith incorporates into his argument concerning loss of future earnings a contention that Barrow cannot show loss of future pension benefits. This contention must fail for the same reason. Assuming arguendo that Barrow's pension benefits are computed by considering only the three years of highest salary, as Dr. Smith asserts, she may establish loss of future pension benefits if she demonstrates that her income during the three years considered would be greater had she been promoted in 1998.
V
Dr. Smith moves for summary judgment dismissing Barrow's claims for punitive damages and mental anguish damages on the ground that she has not pleaded them. He also maintains that she has not adduced any evidence that he acted with the evil motive or intent or the callous indifference to federal rights that is necessary to recover punitive damages.
Dr. Smith also complains that Barrow has not satisfied the requirements of Rule 9(g). The court need not reach this issue. Assuming arguendo that her first amended complaint is deficient under Rule 9(g), she may cure any such defects in her third amended complaint.
A 1
Barrow's first amended original complaint is her operative pleading with respect to her claims against Dr. Smith. This pleading does not provide Dr. Smith notice that she seeks punitive damages or mental anguish damages. Fed.R.Civ.P. 8(a)(3) requires that a complaint contain "a demand for judgment for the relief the pleader seeks." In addition to declaratory and injunctive relief, the first amended complaint seeks actual and compensatory damages, 1st Am. Compl. ¶ 5.2; nominal damages, id. at ¶ 5.3; and attorney's fees and costs, id. at ¶ 5.5. In the context of pleading her § 1983 claims, she requests only actual and nominal damages. Id. at ¶ 10.4. In her prayer for relief, Barrow states that she seeks "[a]ctual damages to the Plaintiff for the damage done to the Plaintiff[']s economic recovery and damage done to the Plaintiff's professional educational career[.]" Id. at 23. These allegations do not notify Dr. Smith that Barrow seeks punitive damages. Barrow is not required expressly to use the term "punitive damages" or to cite the statute under which punitive damages are sought. See S. Pac. Transp. Co. v. Builders Transp., 1993 WL 232058, at *4 (E.D. La. June 22, 1993). She may satisfy the requirements of Rule 8(a) by pleading facts sufficient to put Dr. Smith on notice that she seeks punitive damages. See id. She does not do this, however. For example, Barrow does not allege that Dr. Smith acted with malicious intent or was recklessly indifferent to her federally protected rights. The complaint is similarly devoid of facts sufficient to provide notice that Barrows seeks mental anguish damages. Barrow does not specifically pray for such damages and does not allege facts indicating that she suffered a specific discernable injury to her emotional state. See Hitt v. Connell, 301 F.3d 240, 250 (5th Cir. 2002) (stating standard for obtaining mental anguish damages under § 1983 claim).
In Barrow II the court granted Barrow leave to file a second amended complaint to assert against GISD a Title VII reasonable accommodation claim. Barrow II, 2002 WL 628665, at *9. Barrow cannot now contend that the second amended complaint operates to request damages from Dr. Smith not sought by the previous complaint, because the court did not grant leave to amend the complaint with respect to Dr. Smith. See United States ex rel. Mathews v. HealthSouth Corp., 332 F.3d 293, 296 (5th Cir. 2003) ("The failure to obtain leave results in an amended complaint having no legal effect.").
To obtain punitive damages under § 1983, the defendant's conduct must be "shown to be motivated by evil motive or intent, or . . . involves reckless or callous indifference to the federally protected rights of others." Smith v. Wade, 461 U.S. 30, 56 (1983).
2
Although the first amended complaint does not adequately notify Dr. Smith that Barrow seeks punitive and mental anguish damages, Rule 15(a) provides that leave to amend pleadings may be "freely given when justice so requires." On July 19, 2001 Barrow served defendants with her amended response to interrogatories, in which she gave notice that she intended to seek punitive damages and mental anguish damages. See P. App. 81, 101. Dr. Smith received this notice approximately 40 days before discovery closed on September 1, 2001, well before the court dismissed Barrow's federal-law claims based on qualified immunity, and more than three years before he moved for summary judgment based on her failure to plead such damages. Barrow sought leave to amend on September 4, 2001, and her proposed amended complaint included claims for punitive and mental anguish damages. The court denied the motion without prejudice on December 4, 2001 due to the pendency of Dr. Smith's summary judgment motion, and it later granted that motion and dismissed the claims against him. Now that her action against Dr. Smith has been revived following appeal, permitting Barrow to amend her complaint to seek punitive and mental anguish damages would neither surprise nor unfairly prejudice him, especially if the court permits Dr. Smith to depose her regarding such damages. The court therefore grants Barrow leave to file a third amended complaint that seeks punitive and mental anguish damages from Dr. Smith. Barrow must file the pleading within 15 days of the date this memorandum opinion and order is filed. Dr. Smith may depose Barrow concerning her claim for punitive and mental anguish damages, provided he does so within 30 days of the date this memorandum opinion and order is filed.
As in her second amended complaint, Barrow used the term "emotional harm," but this is a term that is conceptually close to "mental anguish." See, e.g., Vadie v. Miss. St. Univ., 218 F.3d 365, 376 (5th Cir. 2000).
Barrow may include in the third amended complaint her claims against GISD, as set forth in her second amended complaint. Of course, once the pretrial order is signed, it will control the claims and damages that are to be tried. See McGehee v. Certainteed Corp., 101 F.3d 1078, 1080 (5th Cir. 1996) ("It is a well-settled rule that a joint pretrial order signed by both parties supersedes all pleadings and governs the issues and evidence to be presented at trial.") (quoting Branch-Hines v. Hebert, 939 F.2d 1311, 1319 (5th Cir. 1991))).
Without first obtaining leave of court, the deposition must not exceed the duration permitted by Rule 30(d)(2).
B
Dr. Smith also seeks summary judgment dismissing Barrow's claim for punitive damages on the ground that she has not adduced any evidence that he acted with evil intent or motive or with callous indifference to her federal rights.
Punitive damages may be assessed on a claim brought under § 1983 "when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Smith v. Wade, 461 U.S. 30, 56 (1983). To demonstrate reckless or callous indifference, Barrow must show "`recklessness in its subjective form,' i.e. `a "subjective consciousness" of a risk of injury or illegality and a "criminal indifference to civil obligations."'" Williams v. Kaufman County, 352 F.3d 994, 1015 (5th Cir. 2003) (quoting Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 536 (1999)).
Barrow points to Dr. Smith's deposition testimony that, before his employment at GISD, he suspected that, if a public educator decided to enroll her children in private, homeschooling, or religious education, her decision could not be used as a criterion for deciding whether to interview her or give her a position. P. App. 617-19. She has also adduced evidence that, despite this suspicion, Dr. Smith refused to consider her on this basis as a candidate for promotion. Dr. Smith's deposition testimony is sufficient to create a genuine issue of material fact whether he was subjectively conscious of a risk of illegality when he persisted in enforcing a patronage policy with respect to Barrow. Accordingly, he is not entitled to summary judgment dismissing her claim for punitive damages.
VI
Dr. Smith seeks summary judgment for attorney's fees, contending that he is entitled to this relief under 42 U.S.C. § 1988 because Barrow's rejection of good faith offers of settlement that would have adequately compensated her for any alleged losses demonstrates that her lawsuit has become frivolous. Although a defendant may obtain attorney's fees in a § 1983 lawsuit "when a plaintiff's underlying claim is frivolous, unreasonable, or groundless," Myers v. City of West Monroe, 211 F.3d 289, 292 (5th Cir. 2000) (quoting Walker v. City of Bogalusa, 168 F.3d 237, 239 (5th Cir. 1999)), an award is not available unless a litigant is a prevailing party, see Walker v. City of Mesquite, TX, 313 F.3d 246, 249 (5th Cir. 2002) (citing Hewitt v. Helms, 482 U.S. 755, 759 (1987)). Dr. Smith has not obtained dismissal of Barrow's lawsuit and has not demonstrated how her rejection of his settlement offers entitles him to "prevailing party" status. The court denies his motion on this ground.
* * *
The court denies defendants' November 17, 2004 joint motion to strike Dr. Burkman's updated expert report and their alternative requests to depose Dr. Burkman and to designate a rebuttal expert. The court denies Dr. Smith's November 5, 2004 motion for summary judgment, grants leave to Barrow to file a third amended complaint that seeks punitive and mental anguish damages against Dr. Smith, and grants Dr. Smith leave to depose Barrow on her claims for punitive and mental anguish damages.
SO ORDERED.