Brown v. Rio Petroleum Inc ( 2001 )


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  •                   UNITED STATES COURT OF APPEALS
    
                           FOR THE FIFTH CIRCUIT
    
    
    
                               No. 99-11194
    
    
    
                             YOLANDA N BROWN,
    
                                                     Plaintiff-Appellee,
    
    
                                  VERSUS
    
    
                         RIO PETROLEUM, INC, ET AL
    
                                                               Defendants
    
                    RIO PETROLEUM, INC; JOHN WALKER, JR
    
                                                   Defendants-Appellants.
    
    
    
    
               Appeal from the United States District Court
                    For the Northern District of Texas
                               (2:97-CV-440)
                              April 12, 2001
    Before DUHÉ and PARKER, Circuit Judges and LINDSAY, District
    Judge.*
    PER CURIAM:**
    
    
    
      *
       District Judge of the Northern 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    opinion should not be published and is not precedent except under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.
    
                                     1
           Defendants Rio Petroleum, Inc. and John Walker, Jr. appeal the
    
    the district court’s denial of Defendants’ motions for judgment as
    
    a matter of law, for new trial and for remittitur, as well as the
    
    damages awarded by the jury to Plaintiff Yolanda N. Brown.               We
    
    affirm.
    
                        I.   FACTS AND PROCEDURAL HISTORY
    
           Brown was employed by Rio Petroleum from January 1992, to
    
    September 1996, to perform receptionist and clerical duties.            Rio
    
    Petroleum is a small company in Amarillo, Texas, engaged in the
    
    business of exploration, production, and sale of oil and natural
    
    gas.     Brown was the only African-American in an office staff of
    
    nine (and later in Brown’s tenure, ten) employees.         Brown received
    
    raises    and   incentive   bonuses,   participated   in   company   social
    
    functions, and enjoyed good relations with her supervisors and co-
    
    workers at the beginning of her employment.
    
           Over time, her clerical job duties were assigned to other
    
    employees and she was reassigned to perform janitorial and yard
    
    maintenance tasks. She also suffered humiliations including having
    
    mail repeatedly dropped on her from a second floor balcony, being
    
    questioned about her and her children’s participation in Juneteenth
    
    and Martin Luther King, Jr. Day celebrations, and being referred to
    
    at work as “our little Black nanny.”1
    
    
      1
       Rio Petroleum argues that the comments about Brown’s choice to
    celebrate certain holidays and the label “little Black nanny”
    should not be weighed as evidence of racial bias because they were
    “stray remarks.” A reasonable jury may have concluded that the
    
                                           2
           Brown was given a written separation notice in September 1996,
    
    signed by Rio Petroleum Vice President Carol Pierce that stated:
    
                In your four years of employment with Rio, we
                have endeavored to have you perform various
                tasks.      However,  other   than   arranging
                birthday/party celebrations and attending
                receptionist activities during conference
                meetings, you failed to successfully perform
                and master tasks given you. These inabilities
                resulted in the transference of work and
                responsibilities to others.     Recall that I
                have had several conversations with you in the
                past regarding your job performance, and I
                have seen no improvement. Therefore, we must
                terminate     your    employment     effective
                immediately.
    
           Brown brought suit pursuant to Title VII of the Civil Rights
    
    Act of 1964, as amended, 42 U.S.C. § 2000e (1994), alleging that
    
    Rio Petroleum discriminated against her on the basis of race and
    
    sex.    Brown also asserted causes of action against Rio Petroleum
    
    President Barrett Pierce for sexual harassment and intentional
    
    infliction of emotional distress, and against Rio Petroleum Vice
    
    
    remarks concerning the celebrations indicated racial animus and
    that the speakers (Walker and Barrett Pierce) exerted influence
    over the decisionmaker, Carol Pierce. The remarks were therefore
    circumstantial evidence of racial discrimination by Rio Petroleum
    which the jury could consider. See generally Russell v. McKinney
    Hosp. Venture, 
    235 F.3d 219
    , 
    2000 WL 1785541
     at *5-6 (5th Cir.
    2000)(explaining that Reeves v. Sanderson Plumbing Products, Inc.,
    
    120 S. Ct. 2097
     (2000) modified Fifth Circuit stray remark
    jurisprudence so that remarks which evidence discriminatory animus
    made by a speaker who has leverage or influence over the
    decisionmaker may be considered circumstantial evidence of
    discrimination by an employer). On the other hand, the “little
    Black nanny” label was coined by a co-worker who did not exert such
    influence at Rio Petroleum. We therefore agree that a co-worker’s
    reference to Brown as a little Black nanny was a stray remark,
    which did not evidence bias on the part of Rio Petroleum
    decisionmakers.
    
                                      3
    President John Walker, Jr. for assault and battery.
    
         The case was tried to a jury.       At the close of Brown’s case-
    
    in-chief, the district court granted judgment as a matter of law to
    
    Defendants on all claims except Brown’s allegation that she had
    
    been subjected to disparate treatment on account of race with
    
    regard   to   conditions   of    employment    other   than   pay   and   the
    
    allegation that Walker had committed assault and battery against
    
    her by dropping mail on her.          The jury returned a verdict in
    
    Brown’s favor on the two remaining claims and awarded her $60,000
    
    for mental anguish on her disparate treatment claim, as well as
    
    $15,000 for mental anguish and $25,000 in exemplary damages on the
    
    assault and battery claim against Walker. Defendants filed motions
    
    for judgment as a matter of law or for new trial on Brown’s
    
    remaining claims, which the district court denied.            The district
    
    court granted in part and denied in part Defendants’ motion for
    
    remittitur, reducing the jury verdict against the company to
    
    $50,000, the applicable statutory cap.
    
                                    II. ANALYSIS
    
    A. Standard of review
    
         Rio Petroleum appeals the district court’s denial of its
    
    motion for judgment as a matter of law, in which it alleged that
    
    the trial evidence was not sufficient to support a verdict for
    
    Brown on her disparate treatment claim.         We review that denial de
    
    novo, Sharp v. City of Houston, 
    164 F.3d 923
    , 928 (5th Cir. 1999),
    
    
    
                                         4
    considering all of the evidence in the record. Reeves v. Sanderson
    
    Plumbing Prods., Inc., 
    530 U.S. 133
    , 
    120 S. Ct. 2097
    , 2110 (2000).
    
    We view the evidence and all reasonable inferences in favor of the
    
    non-movant;       if   reasonable      persons     could    differ      in     their
    
    interpretation of the evidence, the motion should be denied.                     Id.
    
    Only   if   the    facts   and   reasonable      inferences       are   such    that
    
    reasonable jurors could not reach a contrary verdict may the court
    
    properly grant such motion.         Id.
    
           Rio Petroleum moved, in the alternative, for new trial which
    
    the district court also denied.           We affirm that denial unless the
    
    district court abused its discretion in refusing to find that the
    
    verdict is against the great weight of the evidence.                Whitehead v.
    
    Food Max of Miss., Inc., 
    163 F.3d 265
    , 269 (5th Cir. 1998).
    
           Rio Petroleum also complains that, although the district court
    
    granted its motion for remittitur, it erred in failing to remit the
    
    damages awarded by the jury to a nominal sum.                     We review the
    
    district court’s order of remittitur for abuse of discretion.                    See
    
    Denton v. Morgan, 
    136 F.3d 1038
    , 1046 (5th Cir. 1998).
    
    B. Disparate Treatment Claim
    
           Brown   alleged,    and   the    jury     found,    that   Rio   Petroleum
    
    intentionally discriminated against her because of her race in the
    
    conditions of her employment.           The district court instructed the
    
    jury that Brown “must prove that Rio Petroleum considered her race
    
    as a motivating factor in making one or more decisions concerning
    
    
                                            5
    the conditions of her employment.”   The conditions of employment
    
    which Brown alleged arose from intentional racial discrimination
    
    included the assignment of job duties, a reprimand for making
    
    personal phone calls, and failure to expeditiously file a worker’s
    
    compensation claim.
    
         Brown had the burden of proving all the elements of a prima
    
    facie case of discrimination.   The district court instructed the
    
    jury that Brown must prove:
    
         1. That she was denied or deprived of conditions of
         employment;
         2.   That she was qualified to receive or retain the
         conditions of employment denied; and
         3. That the conditions of employment she was denied were
         instead given to other similarly situated employees who
         were not members of her protected class (African-
         American); and
         4. That Plaintiff’s race was a motivating factor in the
         decision to deny her the conditions of employment.
    
    See St. Mary’s Honor Center v. Hicks, 
    509 U.S. 502
    , 515 (1993).
    
         Rio Petroleum argues on appeal that Brown’s evidence did not
    
    establish a prima facie case of disparate treatment concerning the
    
    delay in filing her worker’s compensation claim.   That claim arose
    
    from an on-the-job injury Brown sustained in 1995, when she was
    
    involved in an automobile accident while running an errand for Rio
    
    Petroleum.   Brown testified that she reported the injury to her
    
    supervisors, who advised her to contact the auto insurance company
    
    rather than filing a workers’ compensation claim. Brown raised the
    
    issue again in September 1996, during her termination interview,
    
    after which the claim was promptly filed. Rio Petroleum points out
    
    
                                    6
    that   the    record    contains       no    evidence       that   Brown’s    worker’s
    
    compensation claim was treated differently than claims by similarly
    
    situated non-minority co-workers.                 The trial testimony established
    
    only that worker’s compensation claims by injured “pumpers” were
    
    generally prepared and filed within a day.                    The pumpers were not
    
    office workers and therefore not similarly situated to Brown.
    
    Further, there was no evidence identifying the race of any injured
    
    pumper.      The record supports Rio Petroleum’s contentions on both
    
    counts.      That is, Brown did not proffer evidence that the pumpers
    
    were similarly situated – in fact, there is undisputed evidence
    
    that they were not similarly situated – nor that they were not
    
    African-Americans.
    
           Rio   Petroleum       next    argues       that   Brown’s     claim   regarding
    
    personal use of the phone did not involve actionable conduct on the
    
    part of Rio Petroleum.              Brown testified that, while other non-
    
    African-American clerical personnel were allowed personal phone
    
    calls at work, she was singled out to be chastised for personal
    
    phone use.      Rio Petroleum contends that when Brown’s supervisor
    
    counseled      her    about    excessive         personal    phone    use    during    a
    
    performance evaluation, it was not an employment action rising to
    
    the level of Title VII scrutiny.                 Similarly, Rio Petroleum argues
    
    that there was no evidence that the reassignment of job duties
    
    resulted in any “detriment” to Brown’s job and therefore was not an
    
    actionable employment decision.
    
           We    must    first    decide    if       Brown’s    allegations      amount   to
    
                                                 7
    discrimination with respect to the conditions of her employment, as
    
    that term is used in 42 U.S.C. § 2000e-2(a)(1).                     Appellant’s
    
    contention that Brown’s claims do not raise viable claims of
    
    discrimination    under    Title   VII     is    bottomed    on   language     and
    
    reasoning from cases involving retaliation claims under § 2000e-
    
    3(a).   In that context, we have held that Title VII was designed to
    
    address    ultimate   employment    decisions,       not    to    address   every
    
    decision made by employers that arguably might have some tangential
    
    effect upon those ultimate decisions.            See, e.g., Dollis v. Rubin,
    
    
    77 F.3d 777
    , 781-82 (5th Cir. 1995).             We mentioned as examples of
    
    ultimate employment decisions hiring, granting leave, discharging,
    
    promoting, and compensating an employee. Id. Appellant’s argument
    
    in this regard fails because the retaliation jurisprudence they
    
    rely on is not on point; this appeal does not concern a retaliation
    
    claim. Rather, Brown prevailed at trial on her allegation that the
    
    conditions of her employment had been discriminatorily altered.
    
    Brown contends, and Rio Petroleum conceded at oral argument, that
    
    Title VII makes it unlawful to discriminate against an individual
    
    with regard to the conditions of employment whether or not an
    
    employer has made an ultimate employment decision on the basis of
    
    race.     Verbal intimidation, ridicule, and insults may alone be
    
    sufficiently   severe     or   pervasive    to    alter     the   conditions   of
    
    employment and violate Title VII.           See DeAngelis v. El Paso Mun.
    
    Police Officers Ass’n, 
    51 F.3d 591
    , 593 (5th Cir. 1995), citing
    
    
    
                                         8
    Harris v. Forklift Systems, Inc., 
    510 U.S. 17
    , 22 (1993).                Brown’s
    
    allegations that her job duties were reassigned in a discriminatory
    
    manner and that she was denied the same use of the telephone for
    
    personal calls allowed to non-African-American employees, taken as
    
    a whole, state a viable Title VII claim of discrimination with
    
    regard to     the    conditions    of   her   employment.      See    Burlington
    
    Industries, Inc. v. Ellerth, 
    524 U.S. 742
    , 761 (1998)(holding that
    
    a Title VII claimant can prove her claim by establishing a tangible
    
    employment action, that is, an employment action which “constitutes
    
    a significant change in employment stauts, such as hiring, firing,
    
    failing to     promote,    reassignment       with   significantly    different
    
    responsibilities, or a decision causing a significant change in
    
    benefits.”(emphsis added))
    
         Next we must determine whether the district court erred in
    
    concluding    that     Brown   established       a   prima    facie    case   of
    
    discrimination. Specifically, Rio Petroleum contends that there is
    
    no evidence from which the jury could conclude that Brown was
    
    qualified to perform the job duties that were reassigned to other
    
    employees.     We address this issue along with Rio Petroleum’s
    
    parallel argument: its proffered non-discriminatory reason for
    
    reassigning Brown’s job duties is that Brown was “not adequately
    
    performing her job duties.”
    
         First,    Rio     Petroleum    transferred      the    responsibility    of
    
    completing the Texas Railroad Commission reports to a Caucasian
    
    
                                            9
    employee hired after Brown.       Brown prepared and filed the reports
    
    for approximately two years from the time she was initially hired.
    
    In an effort to establish that Brown was not qualified to perform
    
    that part of her job, Rio Petroleum relied on evidence that Brown
    
    made errors on nineteen of the reports that she prepared. However,
    
    the evidence did not show that the errors were serious or that, in
    
    order to be qualified for the job, one must produce error-free
    
    reports.   Brown’s training consisted only of a supervisor showing
    
    her how to do the reports for the first two or three months.        Based
    
    on her supervisors’ explicit assessment that she was satisfactorily
    
    performing this function, Rio Petroleum gave her a raise of $50.00
    
    a month and additional responsibility.      Over time, as she mastered
    
    her assigned tasks, Rio Petroleum added responsibility for division
    
    orders, geology files, and some accounting functions. Viewing this
    
    evidence in the light most favorable to Brown, a rational jury
    
    could   have   concluded   that    Brown   was   qualified    for   these
    
    assignments, given that Rio Petroleum, rather than           disciplining
    
    her, providing her with additional training or indicating in any
    
    way that the quality of her work was unsatisfactory, continued to
    
    add to her job responsibilities.
    
         In addition to transferring the Railroad Commission reports,
    
    Brown’s responsibility for the land and well files was reassigned
    
    to a subsequently hired Caucasian clerical worker.       Brown’s phone
    
    duties were decreased, but not eliminated, when Rio Petroleum
    
    installed an automated phone system.        In place of these various
    
                                        10
    duties, Brown was required to water trees, even though there was a
    
    sprinkler system in place.          She was required to sweep and clean the
    
    basement and      wash   the    windows,     although   Rio   Petroleum    had a
    
    janitorial service.         She was also given the responsibility of
    
    caring for an infant when Rio Petroleum gave one of its other
    
    clerical workers permission to bring her baby to work.               As a part
    
    of the transferred duties, Rio Petroleum moved Brown’s workstation
    
    from the front reception area to a desk faced toward the wall in
    
    the corner of the file room, with no phone or typewriter.                 She was
    
    told that she had continued responsibility for receptionist duties.
    
    When she heard the phone ring, she had to get up and go to another
    
    employee’s desk to answer it.                When visitors arrived, she was
    
    summoned to the front to greet them and take care of any related
    
    receptionist duties.
    
          Rio Petroleum cites evidence that Brown made errors in filing,
    
    in   a   bank    deposit,      in   taking    down   phone    messages    and   in
    
    distributing incoming faxes for the proposition that she was not
    
    qualified for the responsibilities that were transferred to other
    
    employees.      While Brown did not deny making some errors, there is
    
    no evidence that Rio Petroleum considered Brown unqualified for
    
    receptionist duties.        Indeed, Rio Petroleum even acknowledged in
    
    her termination letter that she performed that job satisfactorily.
    
    Finally, the jury was free to disbelieve Rio Petroleum’s contention
    
    that the files were transferred because they were “a mess.”
    
          Based on the foregoing, we conclude that the record contained
    
                                            11
    sufficient evidence to support the jury verdict for Brown on her
    
    claims of disparate treatment on the basis of reassigned job
    
    duties.    Brown was the only African-American employee in Rio
    
    Petroleum’s office and the only one subjected to the demeaning
    
    employment conditions described at trial.    Moreover, a jury was
    
    free to reject Rio Petroleum’s contention that Brown was simply an
    
    incompetent employee, particularly in light of evidence that she
    
    was given raises and additional duties during the early days of her
    
    employment after her supervisor concluded that she had mastered her
    
    original responsibilities.   Therefore a reasonable jury could have
    
    concluded that race was a cause for Rio Petroleum’s treatment of
    
    Brown.    In sum, the evidence was sufficient to establish Brown’s
    
    prima facie case and to rebut Rio Petroleum’s proffered non-
    
    discriminatory reasons for its decisions.    Reeves, 
    530 U.S. 923
    
    (2000).   Therefore, the district court did not err in denying Rio
    
    Petroleum’s motion for judgment as a matter of law.
    
    C. Challenge to the Amount of Damages Awarded by the Jury
    
          Rio Petroleum and Walker2 contend that the district court
    
    abused its discretion in failing to remit the jury award of damages
    
    to a nominal amount.
    
          Rio Petroleum complains that the district court incorrectly
    
    stated in its remittitur order that “[trial] testimony established
    
    that Appellee was subjected to an offensive act of a sexual nature
    
      2
       On appeal, Walker contests the damages awarded, but not his
    liability on Brown’s assault and battery claim.
    
                                    12
    by Defendant Barrett W. Pierce, then President of Rio Petroleum,
    
    Inc.”   Rio Petroleum argues that they chose to leave the evidence
    
    of   Pierce’s    misconduct    unchallenged      after   the   district   court
    
    granted judgment as a matter of law on Brown’s sexual harassment
    
    claim because that was the only claim to which it was relevant.
    
    The record does not support Rio Petroleum’s argument.                     Brown
    
    specifically testified that Pierce singled her out for unwelcome
    
    sexual advances because she was African-American and that he did
    
    not subject her Caucasian co-workers to the same treatment because
    
    he believed that African-American females are “prostitutes” or
    
    “easy.” Therefore, the district court did not err in crediting the
    
    uncontradicted evidence of Pierce’s race-based sexual misconduct in
    
    evaluating the record for purposes of remittitur.
    
          Rio    Petroleum   and    Walker    next    contend      that   there   is
    
    insufficient evidence to support the jury’s award of damages to
    
    Brown for emotional distress because she did not show a sufficient
    
    causal connection between the statutory violation and the alleged
    
    injury.     See Gore v. Turner, 
    563 F.2d 159
    , 164 (5th Cir. 1977).
    
    Further, defendants contend that the evidence did not show the
    
    specific nature and extent of the emotional harm caused by the
    
    violation.      See Carey v. Piphus, 
    435 U.S. 247
    , 255-56 (1978).
    
          In proving mental damages a claimant’s testimony alone may not
    
    be sufficient to support anything more than a nominal damage award.
    
    Brady v. Fort Bend County, 
    145 F.3d 691
    , 718 (5th Cir. 1998).
    
    Corroborating testimony or medical or psychological evidence may be
    
                                         13
    necessary to meet the specificity requirements for establishing
    
    emotional distress damages.        Id.    “Emotional harm may manifest
    
    itself, for example, as sleeplessness, anxiety, stress, depression,
    
    marital strain,3 humiliation, emotional distress, loss of self
    
    esteem, excessive fatigue, or a nervous breakdown.” Id. “Physical
    
    manifestations    of   emotional    harm    may   consist   of     ulcers,
    
    gastrointestinal disorders, hair loss or headaches.”        Id.    Brown’s
    
    testimony   included   her   subjective    emotional   responses   to   the
    
    various incidents, as well as a description of her inability to
    
    trust or have any kind of intimacy with any men as a result of her
    
    ordeal.     She testified that she took classes to deal with the
    
    stress.   Brown’s two grown daughters also testified, corroborating
    
    and expanding the evidence that Brown’s work at Rio Petroleum
    
    resulted in stress, weight loss, graying hair and anxiety.               In
    
    addition, the jury was able to observe Brown when she broke down on
    
    the witness stand while testifying about the mail-drop assaults.
    
    Brown testified that Walker would call out to her from an upper
    
    balcony, and when she looked up, he would throw the mail down on
    
    her, calling out “air mail,” laughing and hitting her in the face.
    
    This activity continued, even after she specifically asked him to
    
    stop.     She testified that it was degrading, especially on the
    
    occasions when he did it in front of strangers or in front of her
    
      3
       Brown’s marriage ended in divorce during her employment at Rio
    Petroleum.   However, because she did not attribute her marital
    stress to her problems at work, we do not consider that in
    determining the sufficiency of the evidence on damages.
    
                                        14
    daughter.   We conclude that the evidence in this record supports
    
    the jury’s award of compensatory and punitive damages based on Rio
    
    Petroleum’s intentional discrimination in violation of Title VII
    
    and the assault and battery by Walker.
    
                                CONCLUSION
    
         Based on the foregoing, we affirm the judgment for Brown.
    
    AFFIRMED.
    
    
    
    
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