IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT _____________________
No. 01-31031 Summary Calendar _____________________
ROSA J. DUPRE,
Plaintiff-Appellant, versus
WEST BATON ROUGE PARISH SCHOOL BOARD,
Defendant-Appellee.
--------------------- Appeal from the United States District Court for the Middle District of Louisiana (00-CV-358-M2) --------------------- June 28, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Rosa J. Dupre appeals the judgment of the
district court dismissing her action with prejudice and at her
cost, based on the jury verdict rejecting her claim of racial
discrimination by Defendant-Appellee West Baton Rouge Parish School
Board (“the Board”) in not promoting her from assistant principal
to principal of the Port Allen (Louisiana) Elementary School (“the
School”). In addition to her contention that there is insufficient
evidence to support the jury’s verdict, Dupre complains of several
* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. evidentiary rulings by the court, and of the court’s dismissal of
her state law claim for intentional infliction of emotional
distress. Perceiving no abuse of discretion in the court’s
evidentiary rulings, sufficient evidence to support the factual
findings of the jury, and no error in dismissing Dupre’s state law
tort claim, we affirm.
I. FACTS AND PROCEEDINGS
Dupre, a black female, was assistant principal at the School
when a notice of vacancy was issued for the position of principal.
The notice listed qualifications as:
Applicant must hold a valid Louisiana certificate with Principal Endorsement. Previous Elementary/High School administrative experience required. Applicant must meet qualifications at the time application is filed.
The notice required that applications be submitted by noon on a
date four days after the date of the notice, and Dupre timely filed
her application. It reflected that she met all qualifications for
the principal’s position.
Five persons applied. The Board’s hiring committee,
comprising two white females (one of whom was the superintendent of
schools for the parish) and one black male, recommended another
applicant, Michelle Kaufman, a white female with less experience
and lesser objective qualifications than Dupre and —— according to
Dupre —— an absence of one or more of the minimum qualifications
for application as of “the time the application [was] filed.”
2 Three days following the application deadline, Dupre learned of
Kaufman’s selection for the principal’s position. Within a matter
of weeks, Dupre filed a discrimination charge with the EEOC
claiming intentional racial discrimination by the Board in not
promoting her to principal of the School. The following spring she
received a right-to-sue letter from the EEOC and filed the instant
action two weeks later, asserting that Kaufman was substantially
less qualified and was selected over Dupre solely because Kaufman
is white and Dupre is black. Dupre advanced federal causes of
action under Title VII, 42 U.S.C. §§ 1981, 1983, the Equal
Protection Clause of the Fourteenth Amendment, and, under state
tort law, intentional infliction of emotional distress. After
entry of the judgment in favor of the Board based on the jury’s
verdict, Dupre timely filed a notice of appeal.
II. ANALYSIS
A. Standard of Review
When we review a claim that the evidence is insufficient to
support a jury verdict, we examine all record evidence that was
before the jury in the light most favorable to the verdict, and
will reverse the jury only if the evidence points so strongly in
favor of the challenging party that no reasonable juror could find
against the factually-favored party.1 We review challenges to
evidentiary rulings by the trial court for abuse of discretion; and
1 Garcia v. City of Houston, 201 F.3d 672, 675 (5th Cir. 2000).
3 we review de novo a trial court’s grant of a defendant’s Rule 50(a)
motion to dismiss a cause of action.
B. Sufficiency of Evidence to Support Jury Verdict
We conclude that the jury’s verdict in this case should not be
disturbed. Our painstaking review of the evidence in the record on
appeal demonstrates that Dupre presented significantly more than a
prima facie case for her contention that she was denied promotion
on the basis of race, but that the Board presented persuasive
evidence in support of its position that the selection of Kaufman
over Dupre and three other applicants was race neutral and grounded
in a valid process, both as to proceedings and decisions of the
advisory committee and the ultimate hiring decision.
Dupre nevertheless contends that she demonstrated pretext in
the hiring decision by the Board and the recommendations of the
Advisory Committee. Keeping in mind that we are not reviewing a
dismissal of summary judgment but the fact-finding of a jury that
heard and weighed all the evidence, pro and con, during the course
of a multi-day trial, we cannot say that the jury ignored a
preponderance of the evidence or that the evidence stands so
strongly against the Board and in favor of Dupre that no reasonable
juror or jury could reach a verdict adverse to her. Credibility
calls and assignment of weight and probative value to evidence are
the exclusive province of the jury, and the verdict reached in the
instant case demonstrates that the jury dutifully followed the
proper process. Over and above the cold, subjective list of
4 qualifications and experience was a plethora of subjective evidence
and opinion testimony supporting Kaufman over Dupre. It is not
enough that we or the trial court might have reached a different
result; it suffices that under either of the highly deferential
standards of review that might be applicable here, reversal of the
jury’s verdict is not indicated.
C. Defendant’s Exhibit No. 1
Dupre complains that the court’s admission of the Board’s
Exhibit No. 1 was reversible error, noting that it was (1) created
by the Board’s superintendent who was one of the three members of
the hiring committee and thus was suspect; (2) lacked adequate
statistical support; and (3) was prepared by a person lacking the
requisite expertise. The exhibit contained data concerning the
racial make-up of the assistant principal/principal corps in the
parish’s school system, year by year, over the course of many
years. One of the theories of Dupre’s case was that there was an
unwritten understanding about black schools and white schools for
purposes of assigning principals and assistant principals,
maintaining an 11:11 ratio. She even contended that her theory is
supported by the testimony of the very superintendent who prepared
the contested exhibit, as well as by the exhibit itself. When this
evidentiary challenge is viewed in light of the record and the
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT _____________________
No. 01-31031 Summary Calendar _____________________
ROSA J. DUPRE,
Plaintiff-Appellant, versus
WEST BATON ROUGE PARISH SCHOOL BOARD,
Defendant-Appellee.
--------------------- Appeal from the United States District Court for the Middle District of Louisiana (00-CV-358-M2) --------------------- June 28, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Rosa J. Dupre appeals the judgment of the
district court dismissing her action with prejudice and at her
cost, based on the jury verdict rejecting her claim of racial
discrimination by Defendant-Appellee West Baton Rouge Parish School
Board (“the Board”) in not promoting her from assistant principal
to principal of the Port Allen (Louisiana) Elementary School (“the
School”). In addition to her contention that there is insufficient
evidence to support the jury’s verdict, Dupre complains of several
* 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. evidentiary rulings by the court, and of the court’s dismissal of
her state law claim for intentional infliction of emotional
distress. Perceiving no abuse of discretion in the court’s
evidentiary rulings, sufficient evidence to support the factual
findings of the jury, and no error in dismissing Dupre’s state law
tort claim, we affirm.
I. FACTS AND PROCEEDINGS
Dupre, a black female, was assistant principal at the School
when a notice of vacancy was issued for the position of principal.
The notice listed qualifications as:
Applicant must hold a valid Louisiana certificate with Principal Endorsement. Previous Elementary/High School administrative experience required. Applicant must meet qualifications at the time application is filed.
The notice required that applications be submitted by noon on a
date four days after the date of the notice, and Dupre timely filed
her application. It reflected that she met all qualifications for
the principal’s position.
Five persons applied. The Board’s hiring committee,
comprising two white females (one of whom was the superintendent of
schools for the parish) and one black male, recommended another
applicant, Michelle Kaufman, a white female with less experience
and lesser objective qualifications than Dupre and —— according to
Dupre —— an absence of one or more of the minimum qualifications
for application as of “the time the application [was] filed.”
2 Three days following the application deadline, Dupre learned of
Kaufman’s selection for the principal’s position. Within a matter
of weeks, Dupre filed a discrimination charge with the EEOC
claiming intentional racial discrimination by the Board in not
promoting her to principal of the School. The following spring she
received a right-to-sue letter from the EEOC and filed the instant
action two weeks later, asserting that Kaufman was substantially
less qualified and was selected over Dupre solely because Kaufman
is white and Dupre is black. Dupre advanced federal causes of
action under Title VII, 42 U.S.C. §§ 1981, 1983, the Equal
Protection Clause of the Fourteenth Amendment, and, under state
tort law, intentional infliction of emotional distress. After
entry of the judgment in favor of the Board based on the jury’s
verdict, Dupre timely filed a notice of appeal.
II. ANALYSIS
A. Standard of Review
When we review a claim that the evidence is insufficient to
support a jury verdict, we examine all record evidence that was
before the jury in the light most favorable to the verdict, and
will reverse the jury only if the evidence points so strongly in
favor of the challenging party that no reasonable juror could find
against the factually-favored party.1 We review challenges to
evidentiary rulings by the trial court for abuse of discretion; and
1 Garcia v. City of Houston, 201 F.3d 672, 675 (5th Cir. 2000).
3 we review de novo a trial court’s grant of a defendant’s Rule 50(a)
motion to dismiss a cause of action.
B. Sufficiency of Evidence to Support Jury Verdict
We conclude that the jury’s verdict in this case should not be
disturbed. Our painstaking review of the evidence in the record on
appeal demonstrates that Dupre presented significantly more than a
prima facie case for her contention that she was denied promotion
on the basis of race, but that the Board presented persuasive
evidence in support of its position that the selection of Kaufman
over Dupre and three other applicants was race neutral and grounded
in a valid process, both as to proceedings and decisions of the
advisory committee and the ultimate hiring decision.
Dupre nevertheless contends that she demonstrated pretext in
the hiring decision by the Board and the recommendations of the
Advisory Committee. Keeping in mind that we are not reviewing a
dismissal of summary judgment but the fact-finding of a jury that
heard and weighed all the evidence, pro and con, during the course
of a multi-day trial, we cannot say that the jury ignored a
preponderance of the evidence or that the evidence stands so
strongly against the Board and in favor of Dupre that no reasonable
juror or jury could reach a verdict adverse to her. Credibility
calls and assignment of weight and probative value to evidence are
the exclusive province of the jury, and the verdict reached in the
instant case demonstrates that the jury dutifully followed the
proper process. Over and above the cold, subjective list of
4 qualifications and experience was a plethora of subjective evidence
and opinion testimony supporting Kaufman over Dupre. It is not
enough that we or the trial court might have reached a different
result; it suffices that under either of the highly deferential
standards of review that might be applicable here, reversal of the
jury’s verdict is not indicated.
C. Defendant’s Exhibit No. 1
Dupre complains that the court’s admission of the Board’s
Exhibit No. 1 was reversible error, noting that it was (1) created
by the Board’s superintendent who was one of the three members of
the hiring committee and thus was suspect; (2) lacked adequate
statistical support; and (3) was prepared by a person lacking the
requisite expertise. The exhibit contained data concerning the
racial make-up of the assistant principal/principal corps in the
parish’s school system, year by year, over the course of many
years. One of the theories of Dupre’s case was that there was an
unwritten understanding about black schools and white schools for
purposes of assigning principals and assistant principals,
maintaining an 11:11 ratio. She even contended that her theory is
supported by the testimony of the very superintendent who prepared
the contested exhibit, as well as by the exhibit itself. When this
evidentiary challenge is viewed in light of the record and the
arguments advanced by able counsel in their appellate briefs, we
can discern no abuse of discretion in the trial court’s admission
of the Board’s Exhibit No. 1. After all, Dupre has never even
5 insisted that the exhibit is incorrect; indeed, her Exhibit 52
reflects essentially the same information —— and it too was
prepared by the superintendent.
D. Dismissal of Claim for Intentional Infliction of Emotional Distress
Dupre insists further that this state law tort claim should
have been left to the jury. Our review of the applicable statutes
and jurisprudence from Louisiana as well as our previous
pronouncements regarding this particular cause of action satisfies
us that dismissal was proper. First, examination of the evidence
adduced by Dupre does not portray acts by the Board, the school
district, or those acting for them, that rise to the extreme and
outrageous level of behavior required to sustain such a cause of
action. Moreover, when the entire record is viewed in context,
including the evidence adduced by the Board, even a decision
contrary to the jury’s on Dupre’s federal claims would not support
the state tort of intentional infliction of emotional distress.
And, albeit in retrospect, this conclusion is confirmed by the
jury’s ultimate finding that Dupre suffered no intentional racial
discrimination when she was not selected as principal of the
School. Absent that, her state tort claim could not possibly have
succeeded. Given the totality of the circumstances, we reject
Dupre’s assertion that the trial court’s dismissal of her state law
tort claim was reversible error.
E. Evidence of Dupre’s Medical History
6 Dupre asserts that the district court committed error, in
violation of Federal Rules of Evidence 402 and 403, by allowing the
Board to cross-examine Dupre about her mental and physical
problems, and allowing the Board to put on the testimony of a
psychiatrist who examined Dupre. Conceding the accuracy of her
history of medical and psychiatric problems but contending that
none of the factors interfered with her job performance and that no
evidence to that effect was adduced, Dupre describes the efforts of
the Board in this regard as intentionally misleading the jury to
believe that her medical history somehow justified denying her
promotion, not as relevant to the issue of damages, as the defense
argues. Dupre thus contends that the evidence was irrelevant under
Rule 402 and unfairly prejudicial under Rule 403.
In addition to disagreeing with her characterization of its
cross-examination of Dupre and the testimony of the physician, the
Board notes that much of the contested evidence was adduced outside
the presence of the jury, adding (correctly) that the jury cannot
be prejudiced by what it does not hear. Also contending that Dupre
did not timely object to her cross-examination, the Board goes on
to argue that the evidence was nevertheless relevant, given her
claim for emotional distress and allegation of internal medical
problems, to which her testimony on cross and the testimony of the
examining psychiatrist are clearly relevant. Again, our review of
the court’s rulings on this evidentiary issue satisfies us that the
deferential standard of abuse of discretion has not been met.
7 III. CONCLUSION
Mindful of the jury’s role as fact-finder, which includes
weighing conflicting evidence and determining credibility of
witnesses, we cannot say that when the record on appeal is viewed
as a whole, there is insufficient evidence to support the jury’s
rejection of Dupre’s claim of intentional discrimination in
employment based on race. We conclude that the court’s evidentiary
rulings did not constitute abuse of discretion and that it
correctly granted a judgment of dismissal as a matter of law,
removing from the jury consideration her state law tort claim of
intentional infliction of emotional distress. The verdict of the
jury and the judgment of the district court based on it, are, in
all respects,
AFFIRMED.