IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 01-60016
Summary Calendar ____________________
AUDREY FAYE HOOKER
Plaintiff - Appellee - Cross - Appellant v.
VICTORIA’S SECRET STORES, INC.
Defendant - Appellant - Cross - Appellee
_________________________________________________________________
Appeal from the United States District Court for the Southern District of Mississippi No. 01-60016 _________________________________________________________________ November 21, 2001
Before KING, Chief Judge, and JOLLY and DEMOSS, Circuit Judges.
PER CURIAM:*
Defendant-Appellant-Cross-Appellee Victoria’s Secret Stores,
Inc. appeals the district court’s judgment on an age
discrimination claim in favor of Plaintiff-Appellee-Cross-
Appellant Audrey Faye Hooker. Hooker cross-appeals the district
court’s judgment in favor of Defendant on a claim for intentional
infliction of emotional distress and the court’s award of damages
* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. and attorney’s fees and expenses. For the following reasons, we
AFFIRM.
I. FACTUAL AND PROCEDURAL HISTORY
In August of 1996 at age fifty-nine, Plaintiff-Appellee-
Cross-Appellant Audrey Faye Hooker began work as an Assistant
Manager for employer Defendant-Appellant-Cross-Appellee
Victoria’s Secret Stores, Inc. (“VSS”) in one of their retail
lingerie stores. Hooker had nearly twenty years experience in
the retail lingerie field. Hooker began at one VSS location but
then asked for, and received, a transfer to VSS’s Metro Center
location. The store manager, Erin Titman, served as Hooker’s
direct and sole supervisor at that location and was hired within
a few months after Hooker’s transfer. Hooker estimated Titman’s
age as “early 30s” during the relevant time. In July of 1998,
Hooker resigned from VSS.
On May 11, 1999, Hooker filed an age discrimination claim
against VSS under the Age Discrimination in Employment Act of
1967, 29 U.S.C. § 621 et seq. (1999) (“ADEA”), alleging
constructive discharge, as well as a claim under Mississippi
state law for emotional distress. VSS subsequently filed a
motion for summary judgment on both claims, which the district
court denied. Both claims went to trial in June of 2000. At the
close of Hooker’s case, VSS filed a motion for judgment as a
matter of law pursuant to Rule 50(a) of the Federal Rules of
2 Civil Procedure (“FRCP”). The district court granted VSS’s FRCP
50(a) motion as to the state law claim of intentional infliction
of emotional distress, but denied the motion as to the ADEA
claim. The jury rendered a verdict in favor of Hooker on the
ADEA claim and awarded back pay damages in the amount of
$46,655.05. The jury also determined by special interrogatory
that VSS had willfully violated the ADEA. Hooker then moved for
front pay damages and attorney’s fees and, based on the jury’s
finding of willful violation, for liquidated damages. The
district court denied the front pay motion with prejudice and
awarded liquidated damages in the amount of $46,655.05. The
district court granted Hooker’s motion for attorney’s fees, but
reduced the requested award. VSS moved to alter or amend the
judgment on the ADEA claim pursuant to FRCP 59(e), or for a new
trial pursuant to FRCP 59(a). Hooker moved for a new trial on
her claim of intentional infliction of emotional distress
pursuant to Rule 59(a). The district court denied all three
motions.
VSS appeals the judgment in favor of Hooker on the ADEA
claim and the district court’s denial of the motions to alter or
amend the judgment and for new trial. Hooker cross-appeals the
district court’s grant of VSS’s motion for judgment as a matter
of law on the emotional distress claim and its denial of her
motion for a new trial on that claim. Hooker also cross-appeals
3 the district court’s denial of front pay and the reduction of her
attorney’s fee award.
II. ADEA CLAIM
A. Standard of Review
VSS is unclear and inconsistent in its briefing regarding
whether it now appeals the district court’s denial of its FRCP
50(a) motion for judgment as a matter of law on the ADEA claim;
or whether it appeals the jury’s verdict for Hooker on the three
substantive ADEA issues, including, constructive discharge,
discriminatory age-based animus, and mitigation of damages; or
whether it appeals the district court’s “upholding” of the
verdict on those three substantive issues implicit in the court’s
denial of VSS’s two FRCP 59 motions. All three substantive ADEA
issues were submitted to the jury, which made findings for Hooker
on all three. Whether this court reviews the district court’s
original denial of judgment as a matter of law subsequent to a
jury verdict on any of those three issues, or whether we review
the jury verdict itself, this court applies a deferential
“sufficiency of the evidence” standard in light of the fact that
there are jury findings on all three issues. See, e.g., Cozzo v.
Tangipahoa Parish Council-President Gov’t, 262 F.3d 501, 507 (5th
Cir. 2001) (“We review de novo [a] district court’s ruling on a
motion for judgment as a matter of law but note that, in an
action tried by a jury, such a motion is a challenge to the legal
4 sufficiency of the evidence supporting the jury’s verdict.”)
(internal quotation and citation omitted). We review the
district court’s denial of VSS’s motions to alter or amend the
judgment on the verdict, and for new trial, for abuse of
discretion. Youmans v. Simon, 791 F.2d 341, 349 (5th Cir. 1986)
(motion to alter or amend judgment); Woodhouse v. Magnolia Hosp.,
92 F.3d 248, 256 n.6 (5th Cir. 1996)(new trial). The sufficiency
of the evidence standard has been defined by this court to mean
that even where reasonable jurors could differ on conflicting
evidence that fails to “overwhelmingly” support either party’s
case, the evidence is nevertheless sufficient if reasonable minds
could make the challenged jury finding of fact based on specific
evidence in the record. See, e.g., Hansard v. Pepsi-Cola Metro.
Bottling Co., Inc., 865 F.2d 1461, 1464-65 (5th Cir. 1989) (“The
evidence in this [ADEA] case supported neither side
overwhelmingly. It follows that there is sufficient evidence to
support the jury’s determination that [the employee] was
discharged.”); Haun v. Ideal Indus., Inc., 81 F.3d 541, 546-47
(5th Cir. 1996) (upholding a jury verdict of age discrimination
despite recognition of a “substantial conflict in the evidence
presented” and noting that where “[t]he jury heard both sides and
the jury spoke” then “[t]hat is about all there is to say about
age discrimination liability in this case”).
5 B. Constructive Discharge
A showing of constructive discharge requires that the
plaintiff prove by a preponderance of the evidence that the
employer made the employee’s working conditions so intolerable
that a reasonable employee would feel compelled to resign. See
Brown v. Bunge Corp., 207 F.3d 776, 782 (5th Cir. 2000). This
court considers several factors relevant to a determination that
an employee reasonably could have felt her working conditions
were sufficiently intolerable, including: (1) demotion; (2)
reduction in salary; (3) reduction in job responsibilities; (4)
reassignment to menial or degrading work; (5) reassignment to
work under a younger supervisor; (6) badgering, harassment, or
humiliation by the employer calculated to encourage the
employee’s resignation; or (7) offers of early retirement or
continued employment on terms less favorable than the employee’s
former status. Id. (internal quotation omitted). This court has
further held that a determination of intolerability “depends on
the facts of each case”, and that the factors are considered
“‘singly or in combination’”, indicating that no one factor
predominates. See id. (quoting Barrow v. New Orleans Steamship
Ass’n, 10 F. 3d 292, 297 (5th Cir. 1994)).
The jury heard the following evidence, inter alia,
regarding the intolerability of Hooker’s work situation. Hooker
testified that she was the only employee required during her
6 tenure to come into morning meetings, to return home, and then to
return to the store later in the afternoon to work. Hooker
testified that on one occasion when she had pain in her foot that
made her unable to stand, she asked Titman to find a replacement
for her, but because on that day the location was short-staffed,
Titman told Hooker that Hooker must report to work. Hooker
testified that Titman then told Hooker, “I don’t care if you go
down there and you sit on a stool all day.”
Hooker further testified that, on another occasion, when
Titman was assisting a customer and attempting to sell that
customer some lingerie, Titman pointed toward Hooker and told the
customer that “even” Hooker wore VSS’s “G-string panties.” While
Hooker admitted that she agreed with and signed one performance
evaluation given to her by Titman, Hooker testified that she did
not agree with a second performance evaluation given a few months
before she resigned, but signed the evaluation in the belief that
she could not get her merit increase without signing. Hooker
testified that she felt belittled by Titman and that the
supervisor treated no other workers as harshly as Hooker.
The jury also heard testimony of Hooker’s co-workers
regarding VSS supervisor Titman’s treatment of Hooker. Kym
Wiggins testified that Titman was continually “condescending”
toward Hooker and always “sounded so exasperated” when dealing
with Hooker, and that Titman did not act in the same manner
toward other workers. Gloria Proctor testified that when talking
7 to employees other than Hooker, Titman was “nice”, but that when
talking to Hooker, the supervisor used a “reprimanding-a-child
type” voice. Proctor further testified that the “tone of voice
that [the supervisor] would use with [Hooker] versus everybody
else” was so noticeably different that it prompted Proctor to
start paying closer attention to the relationship between Hooker
and Titman.
Cory Wofford, testified that Titman maintained a
condescending tone toward Hooker and singled out Hooker for
constant criticism not given to younger, less experienced workers
who made similar mistakes. Wofford testified that Titman
constantly made remarks about Hooker’s age and “incompeten[ce]”
in front of him and other workers and that the supervisor
maintained such a constant “hostile” manner toward Hooker that
Wofford considered it “harassment.” Donyelle Russell testified
that Hooker was singled out for harsher criticism than other
workers, criticism Russell said was delivered in a “loud[er]” and
more “upset” manner than criticism given to other workers.
Russell testified that Titman treated workers other than Hooker
“normal[ly]”, but that Titman made repeated remarks regarding how
Hooker should “quit” because she was too “old.” Russell further
testified that if she had been treated in the same manner by
Titman as was Hooker, Russell “probably would have left.”
VSS contends that this evidence is insufficient to support a
finding of constructive discharge because it is specious, because
8 the evidence is susceptible to different interpretations, and
because some of the evidence -- such as the two performance
evaluations signed by Hooker leading to at least one merit
increase -- mitigates any picture of intolerability. VSS claims,
for example, that the comment made by Titman to the customer
regarding Hooker’s wearing of G-strings was a “truthful[]”
attempt to assist that customer.2 VSS further contends that some
of the co-workers’ testimony is of limited value because those
workers had limited contact with Hooker due to the fact that they
worked only in a physically co-joined VSS fragrance store, but
not for the VSS lingerie business, and because the workers did
not work during every shift Hooker worked with Titman.3
This is not an incontrovertible case for constructive
discharge implicating a multiplicity of the seven criteria this
2 VSS also claimed that the incident between Hooker and Titman on the day Hooker requested leave from work for foot pain was merely an attempt by the supervisor to “accommodat[e]” Hooker by suggesting Hooker place a chair on the floor and only perform supervisory duties that day. 3 VSS makes an argument in the alternative that, even if this court upholds the jury finding of constructive discharge, Hooker failed to establish an “adverse ultimate employment decision,” as is required by the ADEA and Title VII, since Hooker suffered no actions such as denial of merit increases or demotions. VSS’s argument ignores that constructive discharge is an ultimate employment action for ADEA purposes, one that takes the place of actual discharge or other adverse employment actions. Cf., Sharp v. City of Houston, 164 F.3d 923, 933 (5th Cir. 1999) (“Employer actions that can result in [Title VII] liability include more than just actual or constructive discharge ... [and] can include discharges, demotions, refusals to hire, refusals to promote, and reprimands.”).
9 court finds relevant to determining workplace intolerability.
However, that VSS can point to conflicting evidence or to
incidents in the record susceptible to differing, even innocent,
interpretations, is not sufficient to warrant disturbing the jury
verdict. See, e.g., Hansard, 865 F.2d at 1464-65; Haun, 81 F.3d
at 546-47. Examining all the evidence heard by the jury in this
case regarding incidents between Hooker and Titman, as well as
the testimony of Hooker’s co-workers that the supervisor singled
out Hooker for different, harsher treatment, this court cannot
say that the jury had insufficient evidence to support its
finding that Hooker’s employment had become objectively
10 intolerable.4 The jury finding of constructive discharge is
4 VSS further points to seven decisions by this court in ADEA and Title VII cases that VSS contends establish such a high threshold of intolerability as a matter of law in this circuit that Hooker’s claim must fail. VSS contends that because those cases involve arguably more egregious circumstances than the instant case, this court is compelled to overturn the jury’s finding. VSS’s reliance on these cases is misplaced and the cases establish no such threshold as a matter of law. In four of these decisions, this court upheld bench rulings or jury findings that an employer did constructively discharge an employee in arguably more egregious circumstances. See Cortes v. Maxus Exploration Co., 977 F.2d 195, 200-01 (5th Cir. 1992) (upholding district court’s bench finding that employee was constructively discharged where employee’s charges of sexual harassment were not responded to by management and she was offered a transfer); Stephens v. C.I.T. Group/Equip. Fin., Inc., 955 F.2d 1023, 1027-28 (5th Cir. 1992) (upholding jury verdict finding constructive discharge where manager was demoted, forced to train his younger successor, and received slight pay reduction); Wilson v. Monarch Paper Co., 939 F.2d 1138, 1145-48 (5th Cir. 1991) (upholding jury verdict for a former vice- president with thirty years experience who was demoted to janitorial duties and re-assigned to a work at a location where he developed an allergy to dust); Guthrie v. J.C. Penney Co., Inc., 803 F.2d 202, 208 (5th Cir. 1986) (upholding jury verdict of constructive discharge based on repeated questioning of employee regarding retirement plans, subjecting employee to harsher criticism and treatment than other workers, and downgrading employee’s managerial performance rating by one point on a five-point scale). In three other decisions, this court upheld summary judgment on, or dismissal of, employment discrimination claims in favor of the employers based on rationales with little bearing on the instant case. See Guthrie v. Tifco Indus., 941 F.2d 374, 377-79 (5th Cir. 1991) (upholding summary judgment for employer because the employee failed to prove that the employer’s proffered reason was pretextual); Bodnar v. Synpol, Inc., 843 F.2d 190, 193-94 (5th Cir. 1988) (upholding summary judgment for employer based on court’s finding that offers of early retirement were part of a legitimate business decision and not enough alone to create constructive discharge); Christopher v. Mobil Oil Corp., 950 F.2d 1209, 1216- 17 (5th Cir. 1992) (upholding district court’s dismissal of an ADEA claim because it was time barred and noting that an offer of an attractive retirement plan was sufficient to put the employees on notice of constructive discharge for statute of limitations purposes). That this court upheld findings of constructive
11 therefore affirmed.
C. Discriminatory Animus
VSS correctly points out that the ADEA will not protect an
employee from arbitrary personnel decisions, but only from those
caused by discriminatory animus based on age. See Russell v.
McKinney Hosp. Venture, 235 F.3d 219, 225 (5th Cir. 2000). When
the evidence of age-based animus consists of remarks about an
employee’s age, as does the evidence in the instant case, this
court has set forth four criteria by which it judges the
sufficiency of that evidence. To be actionable, such remarks
must be: (1) age related; (2) made proximately in time to the
employment decision at issue; (3) made by an individual with
authority over the employment decision; and (4) related to the
employment decision. See id. at 255 n.10. (quoting Brown v. CSC
Logic, Inc., 82 F.3d 651, 655 (5th Cir. 1996)) (internal
quotation omitted). VSS contends that the remarks made by Titman
fail to satisfy the fourth criterium of the Brown test because
they are merely “stray remarks” and thus are insufficiently
related to any of Titman’s conduct giving rise to the
constructive discharge.
discharge made by factfinders in arguably more egregious circumstances, or that we upheld summary judgment on, or dismissal of, employment discrimination claims does not establish any “floor” of intolerable circumstances below which this court may not go as a matter of law to uphold a jury verdict based on the individual circumstances of the instant case.
12 VSS correctly contends that this court has consistently
declined to find sufficient evidence of age-based animus when the
evidence of animus consists only of “stray remarks” regarding a
worker’s age. E.g., Wyvill v. United Cos. Life Ins. Co., 212
F.3d 296, 304 (5th Cir. 2000) (internal quotation omitted).
However, in Russell, this court recently refined the scope of its
“stray remarks” doctrine in the context of reviewing a jury
finding of age-based animus to ensure conformity with Supreme
Court precedent regarding the proper standard of review applied
to jury findings. See Russell, 235 F.3d at 225-29. In that
case, this court held that, in light of the Supreme Court’s
holding in Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 151-54 (2000), “viewing remarks that a jury could find to
evidence animus through [a] harsh lens ... [is] unacceptable” and
that “all reasonable inferences” must be drawn in favor of a
verdict for an employee. Russell, 235 F.3d at 226 (internal
quotation omitted). This court further reiterated that “the
potentially damning nature of ... age-related comments” cannot be
discounted “on the ground that they were not made in the direct
context” of an adverse employment decision. Id. (internal
quotation omitted).
In this case, the jury heard testimony by Hooker’s co-
workers, Wofford and Russell, that Titman told them that Titman
felt Hooker was too old to do her job and that Titman wished
Hooker would resign. The jury also heard co-worker Jennifer
13 Walker testify that Titman asked Walker if she would be
interested in a co-manager position and that Titman said that
Hooker was “just too old and that [the supervisor] needed
somebody younger to work” in the store. A fourth co-worker,
Proctor, testified to the jury that Titman made comments about
Hooker being too old to perform her job correctly “quite often,”
although not to Hooker’s face. A fifth co-worker, Wiggins,
testified that she was standing next to Titman when the
supervisor received a phone call from Hooker relaying that Hooker
would not be coming into work that day. Wiggins testified that
Titman then told Wiggins that Hooker was “just too old to do the
job”, that “[Hooker] was tired all the time”, and that the
supervisor “needed someone younger that could keep up with the
rigors of retail.” Wiggins further testified that Titman would
tell Wiggins that Hooker “needed to go ahead and retire; that she
felt sorry for [Hooker]; and that she was a really nice person,
but that it was just too much for her to handle at her age.”
VSS contends that because these comments were not made to
Hooker directly, nor made in Hooker’s presence during any conduct
giving rise to the constructive discharge, and because the
comments were made to employees that did not work every shift
with Hooker and Titman, such remarks are insufficient to support
the jury’s verdict finding age-based animus. However, a
reasonable jury could have found that the supervisor’s repeated
remarks to multiple workers regarding Hooker’s age and Titman’s
14 desire that Hooker not work for VSS indicated an age-related
motivation for Titman’s criticism and harsh treatment of Hooker.
This court cannot say that the jury lacked sufficient evidence to
find the constructive discharge was age-based merely because such
age-related comments were not made to Hooker’s face, nor in her
presence. The jury finding of age-based animus is therefore
affirmed.
D. Mitigation of Damages
VSS contends that Hooker failed to mitigate her damages and
thus that the jury’s award of back pay, as well as the liquidated
damages assessed by the district court, must be vacated. Hooker
contends that the district court erred in failing to award her
front pay because the evidence in the record shows that she
mitigated her damages. The jury awarded Hooker $46,655.05 in
back pay and found that VSS had wilfully violated the ADEA. The
district court, in denying VSS’s motions to alter or amend the
judgment and for new trial, held that the jury’s back pay award
was not excessive. The court then granted Hooker’s motion for
liquidated damages based on the jury’s finding of a willful
violation and assessed $46,655.05 in damages, an amount equal to
the back pay award.
The factfinder, in this case the jury, may reduce the back
pay damage award if an employee fails to mitigate her damages by
reasonable efforts to obtain substantially similar employment
15 after termination. See, e.g., Boehms v. Crowell, 139 F.3d 452,
460 (5th Cir. 1998), aff’d, 234 F.3d 30 (5th Cir. 2000). If the
defendant “proves that other employment was available and not
diligently sought, there can be no award of back pay.” Hill v.
City of Pontotoc, Mississippi, 993 F.2d 422, 426 (5th Cir. 1993)
(citation omitted). In the event the factfinder concludes that a
willful violation of the ADEA occurred, an employee is entitled
to liquidated damages not to exceed the back pay damage award.
Smith v. Berry Co., 165 F.3d 390, 395 (5th Cir. 1999) (citing 29
U.S.C. § 626(b) (1994)). The jury’s finding that an employee
mitigated damages and its damage award are findings of fact thus
reviewed for sufficiency of the evidence. See Normand v.
Research Inst. of America, Inc., 927 F.2d 857, 864-65 (5th Cir.
1991) (applying sufficiency of evidence standard to reinstate
jury verdict finding mitigation).
In this case, Hooker presented evidence to the jury that
after she left VSS’s employ, she made several telephone calls to
managers that she knew in the retail lingerie field to inquire if
any managerial positions commensurate with her experience were
available in the region, without success. Hooker also testified
that, because of her age and her experience at VSS, she felt that
applying to jobs in person was not a good strategy and thus that
she failed to fill out any job applications or to go on any
interviews when her telephone inquiries proved unfruitful.
The jury also heard testimony by a VSS district manager that
16 tends to show that employment was available to Hooker. The
district manager testified that VSS employees were recruited
frequently by other retailers in the Jackson, Mississippi area,
that the manager felt it would be “easy” for a VSS manager to
obtain such employment, and that in fact, at least two managers
at a VSS location in Jackson were recruited away by other
retailers. The jury weighed all of this evidence and concluded
that Hooker mitigated her damages sufficiently to entitle her to
back pay in the amount of $46,655.05. This court cannot say
that, given Hooker’s age and experience within the limited sphere
of lingerie sales, a reasonable jury could not conclude that
Hooker searched reasonably diligently under the circumstances to
mitigate her back pay damages. The jury award of back pay
damages is therefore affirmed.
VSS contends that because the district court made its own
finding of fact that Hooker did not sufficiently mitigate damages
to entitle her to front pay relief, the court erred in declining
to reduce the back pay damage award as well. The district
court’s denial of VSS motions to alter or amend the judgment or
for new trial, in which the court denied VSS’s request for
reduced back pay, as well as the court’s denial of front pay
damages to Hooker, are reviewed for abuse of discretion. See
Stephens v. C.I.T. Group/Equip. Fin., Inc., 955 F.2d 1023, 1028
(5th Cir. 1992) (reviewing denial of a motion for new trial
17 requesting reduced back pay for abuse of discretion); Giles v.
General Elec. Co., 245 F.3d 474, 490 (5th Cir. 2001) (front pay).
This court has recently held that a factfinder’s
determination that an employee failed to mitigate damages so that
she is not entitled to back pay does not compel the same finding
on the issue of mitigation for the purposes of determining
entitlement to front pay relief. See Giles 245 F.3d at 489-90
(finding that court did not abuse its discretion in granting
front pay award where, as the factfinder, the court found a
failure to mitigate damages for the purposes of back pay relief
and denied back pay damages). The Giles decision recognizes that
the employee’s duty to mitigate serves different purposes for the
separate determinations of entitlement to back pay relief versus
front pay relief. See id. The Giles holding further establishes
that a factfinder may properly make differing factual
determinations as to whether an employee sufficiently mitigated
her damages for front pay versus back pay purposes based on the
same evidence of mitigation. See id. Thus, under Giles, the
district court in the instant case was entitled to make its own
factual determination regarding whether Hooker sufficiently
mitigated damages to entitle her to prospective relief entirely
separate from the jury finding of mitigation related to past
damages. The district court’s finding that mitigation was not
established for front pay purposes is not inconsistent with the
jury finding of mitigation for back pay purposes and does not,
18 therefore, compel this court to hold that the district court
abused its discretion. Consequently, both VSS’s and Hooker’s
motions to vacate the district court’s rulings on back pay and
front pay damages are denied. The back pay and liquidated
damages awards totaling $93,310.10 are affirmed.5
E. Motions to Alter or Amend the Judgment and for New Trial
VSS contends that the district court erred in denying its
motions to alter or amend the verdict and for new trial under
FRCP 59(a) and (e). Because this court finds that there is
sufficient evidence to support the jury’s finding that VSS
violated the ADEA and that Hooker mitigated damages sufficiently
to entitle her to back pay, the court finds that the district
court did not abuse its discretion in denying those motions. The
district court’s denial of VSS’s two FRCP 59 motions is therefore
III. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM
Hooker contends that the district court erred in granting
judgment as a matter of law to VSS pursuant to FRCP 50(a) on her
state law claim for intentional infliction of emotional distress.
Hooker further contends that the district court erred in denying
5 VSS does not contest the jury’s finding of a willful violation, but contends only that where any reduction is made to the back pay award, the liquidated damages award must be reduced to no more than an equal amount. Because we uphold the ADEA violation and the back pay award, the equal liquidated damages award remains undisturbed by this court.
19 her motion for a new trial pursuant to FRCP 59(a) on the same
claim. We review the district court’s grant of judgment as a
matter of law under Rule 50(a) de novo and use the same
evidentiary standard applied by the district court. Haun, 81
F.3d at 548. Judgment as a matter of law is inappropriate if
substantial evidence in the record indicates that reasonable
jurors could arrive at a contrary verdict. See id. (internal
quotation omitted). We review denial of a motion for new trial
for abuse of discretion; such review is “quite limited”, and a
new trial will only be granted if “prejudicial error has crept
into the record” or “substantial justice has not been done.”
Streber v. Hunter, 221 F.3d 701, 736 (5th Cir. 2000) (internal
quotation and citation omitted).
In order to establish a claim of intentional infliction of
emotional distress under Mississippi law, a plaintiff must
establish two elements: (1) conduct on the part of the defendant
that is so extreme or outrageous as to go “beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community”; and (2) severe emotional
distress. Haun, 81 F.3d at 548 (internal quotation and emphasis
omitted). For a plaintiff to establish the outrageous conduct
element, “[i]t has not been enough that the defendant has acted
with an intent which is tortious or even criminal, or ... [with]
malice, or a degree of aggravation which would entitle the
plaintiff to punitive damages for another tort.” Id. (internal
20 quotations omitted). Moreover, this court has held that conduct
creating constructive discharge of an employee, as deplorable as
such conduct sometimes may be, is not the sort of behavior or
treatment that rises to the level of outrageousness sufficient to
support an emotional distress claim except in “the most unusual
cases.” Wilson v. Monarch Paper Co, 939 F.2d 1138, 1143 (5th
Cir. 1991) (applying Texas law, which applies similar standards
as Mississippi to emotional distress claims).
In Haun, for example, this court was confronted with
circumstances analogous to the instant case. In that case, this
court declined to overturn a jury verdict finding a willful ADEA
violation, but affirmed the district court’s grant of judgment as
a matter of law to the employer on an emotional distress claim
where both claims arose from the same conduct on the part of the
employer. See 81 F.3d at 548-49 (applying Mississippi law). In
so doing, we noted that conduct sufficient to sustain a claim of
constructive discharge and employment discrimination -- including
that the employer lied to the employee about the employee’s
probationary status, that it waited three months to inform the
employee he was on probation, and that it failed to remove the
employee from probation -- was certainly “not praiseworthy” and
“might even rise to the level of wrongful.” Id. at 549.
Nevertheless, this court concluded that such conduct failed to
meet the high threshold for an emotional distress claim because
21 the employer’s conduct did not “go beyond all possible bounds of
decency.” Id. at 549 (internal quotation omitted).
Similarly in Jenkins v. City of Grenada, 813 F. Supp. 443,
447 (N.D. Miss. 1993), a district court applying Mississippi law
granted summary judgment to an employer on an emotional distress
claim based on a pattern of discriminatory and harassing conduct
toward an employee of a similar, or arguably even more egregious,
nature to that suffered by Hooker. In that case, the conduct
suffered by the employee included unfair criticism of job
performance, poor evaluations, and demands that the employee quit
or face the threat of the employer fabricating justifications for
termination. This court held that such conduct could “sound[] in
Title VII”, but that it failed to sustain a claim of emotional
distress under Mississippi law. Id. at 447 (relying on Monarch,
939 F.2d at 1143). Likewise in the instant case, although the
conduct suffered by Hooker may be deplorable and sustains a jury
verdict for her regarding employment discrimination, it is not,
without more, so unusual that such conduct is sufficiently
outrageous to sustain a claim for intentional infliction of
emotional distress under Mississippi law.6 Because Hooker fails
6 Because we find that Hooker failed to establish the outrageous conduct element necessary to her claim, we find it unnecessary to address in detail Hooker’s arguments that she suffered sufficient emotional distress to establish the second element of her claim. We note, however, that the district court was correct in determining that Hooker’s claim fails based on either element.
22 to establish a substantial conflict in the evidence regarding the
outrageous conduct element of her emotional distress claim, the
district court did not err in granting judgment as a matter of
law to VSS on that claim. Likewise, because there does not
appear to be prejudicial error, nor was substantial injustice
done, this court cannot say that the district court abused its
discretion in failing to grant a new trial under FRCP 59(a) on
the emotional distress claim. Both the judgment as a matter of
law for VSS and denial of Hooker’s motion for a new trial on the
emotional distress claim are therefore affirmed.7
IV. ATTORNEY’S FEES
We review a district court’s award of attorney’s fees for
abuse of discretion and have set forth twelve factors considered
relevant to a proper determination of reasonable fees. Giles,
245 F.3d at 490 (citing Johnson v. Ga. Highway Express, Inc., 488
F.2d 714 (5th Cir. 1974)). In exercising its discretion
7 Hooker further argues that because the district court denied summary judgment to VSS on the emotional distress claim based on affidavits of witnesses that included substantially the same evidence established at trial regarding the outrageous and distressing nature of VSS’s conduct, this court is compelled to find that the district court erred in granting judgment as a matter of law to VSS. However, Hooker’s argument merely points out that the district court may have erred in failing to grant summary judgment to VSS. It does not establish that the district court, with full benefit of hearing all the evidence presented at trial, could not have found the evidence insufficient to sustain the claim. The district court’s denial of summary judgment is not before this court, and this court’s de novo review of the record indicates that there is insufficient evidence of outrageous conduct in the record as a whole to support the emotional distress claim under Mississippi law.
23 properly, a district court need not “meticulously” address all
twelve factors, but must “heed the twelve-factor analysis.” Id.
at 490 (internal quotation omitted). Hooker claims that the
district court erred by reducing her request for attorney’s fees
without adequate explanation.
However, a review of the district court’s assessment of
attorney’s fees as set forth in its Opinion and Order of December
4, 2000, indicates that the court gave more than adequate
consideration to the reasonableness of Hooker’s fee request and
properly heeded the twelve-factor analysis when it reduced the
fees. The district court expressly noted the Johnson twelve-
factor test. The court then assessed the rates of Hooker’s three
attorneys based on their respective years of experience and
reduced one attorney’s hourly rate from $175 to $155 because the
court determined that the $175 rate was excessive, even for an
attorney with twenty-eight years experience. As appropriate
under the twelve-factor test, the district judge used his own
experience of the time necessary to complete similar tasks to
find that the 734 hours of attorney labor claimed from the filing
of the complaint through the close of post-trial motions was
“excessive.” The court then reduced the total compensable hours
by two-thirds. The court thus reduced the total fees from
Hooker’s request of $104.137.04 to $33,719.60. The court further
reduced claimed expenses by $5,302.43 to $3,734.60 where it found
that a $7,302.43 charge for outside copying was excessive without
24 further justification. Given the district court’s due
consideration of the Johnson factors, the court did not abuse its
discretion by reducing the fees and expenses from the amounts
requested by Hooker. The award of attorney’s fees is therefore
V. CONCLUSION
For the foregoing reasons, the jury findings in favor of
Hooker on her ADEA claim are AFFIRMED. The district court’s
denial of VSS’s motions for judgment as a matter of law on the
ADEA claim is AFFIRMED. The district court’s denial of VSS’s
motions to alter or amend the judgment and for new trial is
AFFIRMED. The jury award of back pay, as well as the district
court’s denial of front pay damages, are AFFIRMED. The district
court’s grant of judgment as a matter of law for VSS on the claim
of intentional infliction of emotional distress is AFFIRMED. The
district court’s denial of Hooker’s motion for a new trial on the
emotional distress claim is AFFIRMED.