                        Revised May 4, 2001

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT

                       _____________________

                           No. 99-31354
                       _____________________



     SANDRA SPRAGIS FLOWERS


                                    Plaintiff - Appellee

          v.


     SOUTHERN REGIONAL PHYSICIAN SERVICES INC.


                                    Defendant - Appellant

_________________________________________________________________

           Appeal from the United States District Court
               for the Middle District of Louisiana
_________________________________________________________________
                          March 30, 2001

Before KING, Chief Judge, and HIGGINBOTHAM and DUHÉ, Circuit
Judges.

KING, Chief Judge:

      Defendant-Appellant Southern Regional Physician Services,

Inc. appeals from the district court’s final judgment on a jury

verdict awarding Plaintiff-Appellee Sandra Spragis Flowers

damages under the Americans with Disabilities Act for disability-

based harassment and from the district court’s subsequent denial
of Defendant-Appellant’s renewed motion for judgment as a matter

of law.



                I. FACTUAL AND PROCEDURAL BACKGROUND

     Plaintiff-Appellee Sandra Spragis Flowers was employed by

Defendant-Appellant Southern Regional Physician Services, Inc.

(“Southern Regional”) from September 1, 1993 to November 13,

1995.    Flowers worked primarily as a medical assistant for Dr.

James Osterberger, a physician at Southern Regional.1   In early

March 1995, Margaret Hallmark, Flowers’s immediate supervisor,

discovered that Flowers was infected with the Human

Immunodeficiency Virus (“HIV”).    Flowers was terminated from

Southern Regional in November 1995.

     On October 6, 1996, Flowers filed a charge of discrimination

with the Equal Employment Opportunity Commission (“EEOC”),

alleging that Southern Regional had engaged in unlawful

discrimination because of Flowers’s status as a disabled person.

After receiving the requisite Right to Sue Letter from the EEOC,

Flowers filed suit in federal court asserting a violation of the

Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12213

     1
        Flowers actually began her employment as a medical
assistant for Osterberger in November 1989, when the staffing and
support services for the hospital at which Osterberger was a
physician were provided by Medical Associates. Sometime in
August 1993, Southern Regional entered into a contract with the
hospital to provide staffing and support services. On September
1, 1993, Southern Regional replaced Medical Associates as
Flowers’s employer.

                                  2
(1995).   Flowers claimed both that she was terminated because of

her disability and also that she was subjected to “harassing

conduct” designed to “force [her] from her position or cast her

in a false light for the purpose of terminating her because of

her HIV status.”

     Flowers’s claims proceeded to trial by jury on December 8,

1998.   At the close of Flowers’s case and then again at the close

of all of the evidence, Southern Regional moved for judgment as a

matter of law pursuant to Rule 50(a) of the Federal Rules of

Civil Procedure (“Rule 50(a) motions”).   The district court

denied both Rule 50(a) motions.   After deliberation, the jury

determined (1) that Flowers’s disability was not a motivating

factor in Southern Regional’s decision to terminate her

employment, but (2) that Flowers was subjected to disability-

based harassment that created a hostile work environment.    As a

result of its finding of a hostile work environment, the jury

awarded Flowers $350,000.   The district court reduced the amount

to $100,000 pursuant to 42 U.S.C. § 1981a(b)(3)(B) (1994).     The

district court then entered final judgment in her favor on July

21, 1999.   Pursuant to Rule 50(b) of the Federal Rules of Civil

Procedure, Southern Regional renewed its motion for judgment as a

matter of law (“Rule 50(b) motion”).   On November 22, 1999, the

district court denied the Rule 50(b) motion.

     Southern Regional timely appealed.



                                  3
    II. AVAILABILITY OF A CAUSE OF ACTION UNDER THE ADA FOR

                    DISABILITY-BASED HARASSMENT

     In ruling on Southern Regional’s Rule 50(b) motion, the

district court concluded that the ADA encompasses a cause of

action for disability-based harassment.   Southern Regional

contends, however, that no cause of action under the ADA exists,

arguing only that this court had the opportunity to extend this

circuit’s harassment jurisprudence to such claims in McConathy v.

Dr. Pepper/Seven Up Corp., but found it unnecessary to do so.

See 131 F.3d 558, 563 (5th Cir. 1998) (“This case should not be

cited for the proposition that the Fifth Circuit recognizes or

rejects an ADA cause of action based on hostile environment

harassment.”).   We find Southern Regional’s argument to be

unpersuasive and agree with the district court that the ADA

embraces claims of disability-based harassment.

     To date, none of our sister courts of appeals has

affirmatively acknowledged that a cause of action for disability-

based harassment exists under the ADA.2   Nonetheless, existing

decisions of the courts of appeals that have considered this

issue indicate that a claim of disability-based harassment should



     2
        In Keever v. Middletown, the Court of Appeals for the
Sixth Circuit appears to have implicitly recognized an ADA
hostile work environment claim, albeit with no analysis. See 145
F.3d 809, 813 (6th Cir. 1998).

                                 4
be cognizable under the ADA.   See Silk v. City of Chicago, 194

F.3d 788, 803 (7th Cir. 1999); Walton v. Mental Health Ass’n, 168

F.3d 661, 666 (3d Cir. 1999) (“This framework indicates that a

cause of action for harassment exists under the ADA.”); Miranda

v. Wis. Power & Light Co., 91 F.3d 1011, 1017 (7th Cir. 1996)

(“Such a claim [of a hostile work environment under the ADA]

would seem to arise under the general prohibition against

discrimination with respect to terms or conditions of employment

contained in § 12112(a).”); Casper v. Gunite Corp., No. CIV.A.99-

3215, 2000 WL 975168, at *4 (7th Cir. July 11, 2000) (“Such a

cause of action appears to exist because the ADA prohibits

discrimination in the ‘terms, conditions, and privileges of

employment,’ which is the exact same language that the Supreme

Court relied upon in finding that Title VII encompasses claims of

sex discrimination due to the creation of a hostile work

environment in Meritor[.]” (citations omitted)).   Aside from the

Court of Appeals for the Sixth Circuit, however, all of the

courts of appeals that have addressed this issue, including our

own, have assumed the existence of such a claim in order to

dispose of the case on its merits.3   Because we are now

     3
          See McConathy, 131 F.3d at 563; see also Steele v.
Thiokol Corp., --- F.3d ---, 2001 WL 173698, *3 (10th Cir. 2001);
Vollmert v. Wis. Dep’t of Transp., 197 F.3d 293, 297 (7th Cir.
1999); Silk, 194 F.3d at 803; Cannice v. Norwest Bank, 189 F.3d
723, 725 (8th Cir. 1999), cert. denied, 529 U.S. 1019 (2000);
Walton, 168 F.3d at 666-67; Wallin v. Minn. Dep’t of Corr., 153
F.3d 681, 687-88 (8th Cir. 1998), cert. denied, 526 U.S. 1004
(1999); Moritz v. Frontier Airlines, Inc., 147 F.3d 784, 788 (8th

                                5
confronting a case that we cannot so easily dispose of, we find

that we must consider the question whether the ADA embodies a

claim for disability-based harassment.   For the following

reasons, we conclude that it does.

     The ADA provides that no employer covered by the Act “shall

discriminate against a qualified individual with a disability

because of the disability of such individual in regard to . . .

terms, conditions, and privileges of employment.”   42 U.S.C.

§ 12112(a) (emphasis added).   In almost identical fashion, Title

VII provides that it is unlawful for an employer “to fail or

refuse to hire or to discharge any individual, or otherwise to

discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment,

because of such individual’s race, color, religion, sex, or

national origin[.]”   42 U.S.C. § 2000e-2(a)(1) (1994) (emphasis

added).

     It is evident, after a review of the ADA’s language,

purpose, and remedial framework, that Congress’s intent in

enacting the ADA was, inter alia, to eradicate disability-based

harassment in the workplace.   First, as a matter of statutory

interpretation, in Patterson v. McLean Credit Union, the Supreme

Court interpreted Title VII, which contains language similar to

that in the ADA, to provide a cause of action for “harassment



Cir. 1998).

                                 6
[which is] sufficiently severe or pervasive to alter the

conditions of [the victim’s] employment and create an abusive

working environment . . . because it affects a term, condition,

or privilege of employment.”   491 U.S. 164, 180 (1989)

(alterations in original) (internal quotations and citation

omitted) (quoting Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67

(1986)).   We conclude that the language of Title VII and the ADA

dictates a consistent reading of the two statutes.    Therefore,

following the Supreme Court’s interpretation of the language

contained in Title VII, we interpret the phrase “terms,

conditions, and privileges of employment,” as it is used in the

ADA, to “strike at” harassment in the workplace.     See Meritor

Sav. Bank v. Vinson, 477 U.S. 57, 64 (1986) (“The phrase ‘terms,

conditions, or privileges of employment’ evinces a congressional

intent ‘to strike at the entire spectrum of disparate treatment

of men and women’ in employment.” (quoting Los Angeles Dep’t of

Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978))); see

also Haysman v. Food Lion, Inc., 893 F. Supp. 1092, 1106 (S.D.

Ga. 1995) (“It would seem illogical to hold that ADA language

identical to that of Title VII was intended to afford disabled

individuals less protection than those groups covered by Title

VII.”).4

     4
        We also note that, as a matter of statutory
interpretation, in determining the meaning of a particular
statutory provision, it is helpful to consider the interpretation
of other statutory provisions that employ the same or similar

                                 7
     Not only are Title VII and the ADA similar in their

language, they are also alike in their purposes and remedial

structures.   Both Title VII and the ADA are aimed at the same

evil — employment discrimination against individuals of certain

classes.    See 42 U.S.C. § 12101(b) (“It is the purpose of this

chapter . . . to provide a clear and comprehensive national

mandate for the elimination of discrimination against individuals

with disabilities.”); H.R. REP. NO. 914, Title VII (1964),

reprinted in 1964 U.S.C.C.A.N. 2391, 2401 (proclaiming that the

purpose of Title VII is “to eliminate . . . discrimination in

employment based on race, color, religion, or national origin”

and declaring that Title VII is “to be the national policy to

protect the right of persons to be free from such

discrimination”); see also Walton, 168 F.3d at 666-67; Newman v.

GHS Osteopathic, Inc., 60 F.3d 153, 157 (3d Cir. 1995); Haysman,

893 F. Supp. at 1106 (“This cause of action is necessary if the

ADA is to fulfill its purpose of protecting ‘qualified

individuals with disabilities’ from discrimination in the work

place.”).   Moreover, this court has recognized that “the ADA is



language. See, e.g., Jeldness v. Pearce, 30 F.3d 1220, 1227 (9th
Cir. 1994) (“Because Title IX and Title VI use the same language,
they should, as a matter of statutory interpretation, be read to
require the same levels of protection and equality.”). Cf.
United States v. New England Coal & Coke Co., 318 F.2d 138, 143
(1st Cir. 1963) (“Extrinsic aids such as . . . the accepted
interpretation of similar language in related legislation are
helpful in interpreting ambiguous statutory language.” (citations
omitted)).

                                  8
part of the same broad remedial framework as . . . Title VII, and

that all the anti-discrimination acts have been subjected to

similar analysis.”   Miller v. Pub. Storage Mgmt., Inc., 121 F.3d

215, 218 (5th Cir. 1997); see also Buchanan v. City of San

Antonio, 85 F.3d 196, 200 (5th Cir. 1996) (recognizing that

“[t]he remedies provided under the ADA are the same as those

provided by Title VII”); Daigle v. Liberty Life Ins. Co., 70 F.3d

394, 396 (5th Cir. 1995) (finding ADA claims subject to the same

method of proof as Title VII cases).   Furthermore, other courts

of appeals have noted the correlation between the two statutes.

See Brown v. Brody, 199 F.3d 446, 456 n.10 (D.C. Cir. 1999)

(listing cases) (observing that “[c]ourts of appeals routinely

apply the same standards to evaluate Title VII claims as they do

ADA claims”); Miranda, 91 F.3d at 1017 (“[I]n analyzing claims

under the ADA, it is appropriate to borrow from our approach to

the respective analog under Title VII.”); Newman, 60 F.3d at 156;

Santiago v. City of Vineland, 107 F. Supp. 2d 512, 551 (D.N.J.

2000) (“[T]he Third Circuit applies the case law under [the ADA,

Title VII, and the ADEA] interchangeably.”).   We conclude,

therefore, that the purposes and remedial frameworks of the two

statutes also command our conclusion that the ADA provides a

cause of action for disability-based harassment.

     In sum, existing decisions by the courts of appeals that

have considered this issue evidence that a claim for disability-

based harassment is cognizable under the ADA, and several

                                9
district courts have already confirmed that such a cause of

action exists.5   Accordingly, because Title VII has been extended

to hostile work environment claims, we follow the growing

consensus that our harassment jurisprudence be extended to claims

of disability-based harassment.    As such, we find that a cause of

action for disability-based harassment is viable under the ADA

and turn now to the question whether Flowers adduced sufficient

evidence for a jury to conclude that she was a victim of such

harassment.

 III. SUFFICIENCY OF THE EVIDENCE OF DISABILITY-BASED HARASSMENT

     Southern Regional’s sole contention on appeal regarding the

evidence of harassment is that the conduct of which Flowers

complains was not sufficiently severe or pervasive to rise to the

level of a hostile work environment.   After reviewing all of the

evidence presented at trial and recognizing that it could not

“reweigh the evidence or reevaluate the credibility of the

witnesses” as decided by the jury, the district court denied

     5
        See, e.g., Johnson v. City of Mason, 101 F. Supp. 2d
566, 577 (S.D. Ohio 2000); Fox v. Gen. Motors Corp., 94 F. Supp.
2d 723, 726 (N.D. W. Va. 2000) (“This framework indicates that a
cause of action for harassment exists under the ADA.”); Rodriguez
v. Loctite P.R., Inc., 967 F. Supp. 653, 663 (D.P.R. 1997)
(finding the logic in Haysman to be “unassailable” and agreeing
that hostile work environment claims should be actionable under
the ADA); Haysman, 893 F. Supp. at 1106-07 (“A contrary rule
would have the illogical result of making an employer liable for
firing a qualified individual because of a disability or its
necessary consequences, while leaving untouched the unscrupulous
employer who took the ‘safe route’ by harassing a disabled
individual with the intent of making him quit.”); Mannell v. Am.
Tobacco Co., 871 F. Supp. 854, 860 (E.D. Va. 1994).

                                  10
Southern Regional’s Rule 50(b) motion as to its challenge to the

sufficiency of the evidence of harassment.

                        A. Standard of Review

     “A motion for judgment as a matter of law . . . in an action

tried by jury is a challenge to the legal sufficiency of the

evidence supporting the jury’s verdict.”       Ford v. Cimarron Ins.

Co., 230 F.3d 828, 830 (5th Cir. 2000) (internal quotations

omitted) (alteration in original) (quoting Jones v. Kerrville

State Hosp., 142 F.3d 263, 265 (5th Cir. 1998)).      We review de

novo the district court’s ruling on a motion for judgment as a

matter of law, applying the same legal standard as the trial

court.    See id.; Brown v. Bryan County, Ok., 219 F.3d 450, 456

(5th Cir. 2000).   Therefore, “judgment as a matter of law is

proper after a party has been fully heard by the jury on a given

issue, and there is no legally sufficient evidentiary basis for a

reasonable jury to have found for that party with respect to that

issue.”    Ford, 230 F.3d at 830 (internal quotations omitted)

(quoting Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 804 (5th

Cir. 1997)).   Moreover, “we consider all of the evidence, drawing

all reasonable inferences and resolving all credibility

determinations in the light most favorable to the non-moving

party.”    Brown, 219 F.3d at 456.    Although our review is de novo,

we recognize that “our standard of review with respect to a jury

verdict is especially deferential.”      Id.   As such, judgment as a

matter of law should not be granted unless the facts and

                                 11
inferences point “so strongly and overwhelmingly in the movant’s

favor that reasonable jurors could not reach a contrary

conclusion.”    Omnitech Int’l, Inc. v. Clorox Co., 11 F.3d 1316,

1322 (5th Cir. 1994).

         B. The Evidence Is Sufficient to Support the Verdict

     A cause of action for disability-based harassment is

“modeled after the similar claim under Title VII.”      McConathy v.

Dr. Pepper/Seven Up Corp., 131 F.3d 558, 563 (5th Cir. 1998).

Accordingly, to succeed on a claim of disability-based

harassment, the plaintiff must prove:

     (1) that she belongs to a protected group; (2) that she
     was subjected to unwelcome harassment; (3) that the
     harassment complained of was based on her disability or
     disabilities; (4) that the harassment complained of
     affected a term, condition, or privilege of employment;
     and (5) that the employer knew or should have known of
     the harassment and failed to take prompt, remedial
     action.

Id. (internal quotations omitted) (quoting Rio v. Runyon, 972 F.

Supp. 1446, 1459 (S.D. Fla. 1997)); see also Walton, 168 F.3d at

667; Wallin, 153 F.3d at 687-88.6      Moreover, the disability-based

harassment must “be sufficiently pervasive or severe to alter the

conditions of employment and create an abusive working

environment.”    McConathy, 131 F.3d at 563 (internal quotations

omitted) (quoting Farpella-Crosby v. Horizon Health Care, 97 F.3d



     6
        No party here argues that Flowers was not disabled
within the meaning of the ADA, and we assume arguendo that she
was.

                                  12
803, 806 (5th Cir. 1996)); see also Silk, 194 F.3d at 804;

Walton, 168 F.3d at 667; Wallin, 153 F.3d at 688.

     In determining whether a work environment is abusive, this

court must consider the entirety of the evidence presented at

trial, including “the frequency of the discriminatory conduct,

its severity, whether it is physically threatening or

humiliating, or a mere offensive utterance, and whether it

unreasonably interferes with an employee’s work performance.”

Shepherd v. Comptroller of Public Accounts, 168 F.3d 871, 874

(5th Cir.), cert. denied, 528 U.S. 963 (1999); see also Harris v.

Forklift Sys., Inc., 510 U.S. 17, 23 (1993); Walker v. Thompson,

214 F.3d 615, 625 (5th Cir. 2000).    Even under this circuit’s

fairly high standard for severe or pervasive conduct, this court

can reverse a jury verdict “only when reasonable minds in the

exercise of impartial judgment could not have arrived at that

verdict.”   DeAngelis v. El Paso Mun. Police Officers Ass’n, 51

F.3d 591, 593 (5th Cir. 1995).   Moreover, we are mindful of the

Supreme Court’s admonition in Reeves v. Sanderson Plumbing

Products, Inc. that in entertaining a motion for judgment as a

matter of law, a reviewing court must appreciate that

“[c]redibility determinations, the weighing of the evidence, and

the drawing of legitimate inferences from the facts are jury

functions, not those of a judge.”     530 U.S. 133, 120 S. Ct. 2097,

2110 (2000) (internal quotations omitted) (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).     With this

                                 13
framework in mind, we consider Southern Regional’s argument on

appeal.

     As noted above, Southern Regional maintains that the conduct

of which Flowers complains was not sufficiently severe or

pervasive to constitute harassment.    We conclude, however,

viewing the evidence in the light most favorable to the verdict,

that Flowers has presented sufficient evidence to support the

jury’s decision.   In early March 1995, Margaret Hallmark,

Flowers’s immediate supervisor, discovered that Flowers was HIV

positive.   Evidence at trial revealed that prior to the time

Hallmark was informed of Flowers’s HIV-positive status, Hallmark

and Flowers were close friends, often going to lunch, drinks, and

movies together and once even taking a trip to Mardi Gras in New

Orleans.

     The evidence at trial also revealed that almost immediately

after Hallmark discovered Flowers’s condition, Hallmark would no

longer go to lunch with Flowers and ceased socializing with her.

Moreover, Hallmark began intercepting Flowers’s telephone calls,

eavesdropping on her conversations, and hovering around Flowers’s

desk.   At trial, Southern Regional did not attempt to explain

Hallmark’s sudden change toward Flowers.    In addition, William

Cooper, Southern Regional’s president, became very distant, when

the two used to get along very well.    Cooper refused to shake

Flowers’s hand and would go to great pains to circumvent her

office to get to other parts of the hospital.

                                14
     Prior to the discovery of her HIV-positive status, Flowers

had been required to submit to only one random drug test.

However, after Flowers revealed to Hallmark her HIV-positive

condition, Flowers was required to undergo four random drug tests

within a one-week period.     Furthermore, before being informed of

Flowers’s condition, Hallmark appeared more than satisfied with

Flowers’s work performance.    In September 1994, Hallmark gave

Flowers a score of thirty-eight, out of a possible forty, in a

performance appraisal.   This score enabled Flowers to receive a

ten-percent raise.    However, within the month after revealing her

HIV-positive condition to Hallmark, Flowers was written up for

the first time since December 1993.    Then, on April 21, 1995,

Hallmark asked Flowers to help her pick up some medical supplies

from another part of the hospital.    Instead of going to get the

supplies, Hallmark lured Flowers to a conference room in which

Beverly Mason, Southern Regional’s human resource manager, and

Osterberger were waiting.    The purpose of the meeting was to give

Flowers another write up and place her on a ninety-day probation.

Flowers testified that, at this meeting, she felt “ambushed from

all sides.”

     Then, just days before Flowers’s ninety-day probation ended,

Flowers was again written up and placed on another ninety-day

probation.    Again, she was lured into a meeting under false

pretenses; this time Cooper, the president of Southern Regional,

was in attendance.    Flowers testified that at this meeting Cooper

                                 15
called her a “bitch” and said that he was “tired of her crap.”

At this point in time, Flowers became distressed enough to begin

carrying a tape recorder with her at all times while she was at

work.

     Finally, on November 13, 1995, Flowers was discharged.

Flowers testified that, at this discharge meeting, Cooper ordered

Flowers to turn off the tape recorder that she was carrying in

her coat pocket.    When she refused to do so, Cooper walked around

his desk and physically removed the recorder from her pocket.

     Considering the evidence presented at trial in its entirety,

we conclude that the facts and inferences from the evidence do

not point so strongly and overwhelmingly against the verdict that

reasonable persons could not disagree.    The jury could have

properly inferred from the evidence that Hallmark’s and Cooper’s

conduct was sufficiently severe or pervasive to create a hostile

work environment and unreasonably interfere with Flowers’s work

performance.    Moreover, a reviewing court may not disregard the

jury’s credibility assessments.    Given the deference we must

accord to a jury’s evaluation of the evidence before it, we find

that the evidence is sufficient to support the jury’s finding of

harassment.    Southern Regional does not contest that Flowers

belonged to a protected group based upon her HIV-positive status.

Furthermore, as just discussed, the jury was presented with

sufficient evidence to conclude that Flowers was subjected to

Hallmark’s and Cooper’s unwelcome harassment because of her

                                  16
status as an HIV-positive individual and that this harassment was

so severe and pervasive that it unreasonably interfered with her

job performance.    Finally, Southern Regional does not contest

that it was aware of the harassment, and the jury had sufficient

evidence before it to conclude that Southern Regional failed to

take prompt action to remedy the harassment.      Accordingly, the

district court did not err in denying Southern Regional’s Rule

50(b) motion on this issue.

                     IV. ANY EVIDENCE OF INJURY

     Finally, Southern Regional argues that Flowers failed to

offer any evidence at trial relating to damages sustained as a

result of the harassment.    The district court found that Southern

Regional failed to raise this issue at trial in its Rule 50(a)

motions.   As such, the district court concluded that Southern

Regional waived this argument and declined to consider it.

                        A. Standard of Review

     If a party fails to move for judgment as a matter of law

under Federal Rule of Civil Procedure 50(a) on an issue at the

conclusion of all of the evidence, that party waives both its

right to file a renewed post-verdict Rule 50(b) motion and also

its right to challenge the sufficiency of the evidence on that

issue on appeal.7   See Logal v. United States, 195 F.3d 229, 231

     7
        Only a de minimis departure from, or technical
noncompliance with, this rule permits a reviewing court to
inquire into the sufficiency of the evidence. See Taylor Publ’g
Co. v. Jostens, Inc., 216 F.3d 465, 471-72 (5th Cir. 2000);

                                 17
(5th Cir. 1999); United States ex rel. Wallace v. Flintco Inc.,

143 F.3d 955, 960 (5th Cir. 1998).     As such, “[i]t is the

unwavering rule in this Circuit that issues raised for the first

time on appeal are reviewed only for plain error.”     Flintco Inc.,

143 F.3d at 963 (internal quotations omitted) (quoting McCann v.

Tex. City Refining, Inc., 984 F.2d 667, 673 (5th Cir. 1993)).      On

plain error review, the question for this court “is not whether

there was substantial evidence to support the jury verdict, but

whether there was any evidence to support the jury verdict.”    Id.

at 964 (internal quotations and emphasis omitted) (quoting

McCann, 984 F.2d at 673).   If any evidence exists that supports

the verdict, it will be upheld.    See id.

  B. No Evidence Exists to Support the Jury’s Award of Damages




Polanco v. City of Austin, Tex., 78 F.3d 968, 974 (5th Cir.
1996). “Technical noncompliance . . . is gauged by whether the
purposes of the rule are satisfied[.]” Polanco, 78 F.3d at 974.
Therefore, if the defendant made a 50(a) motion at the close of
the plaintiff’s case, and “the motion sufficiently alerted the
court and the opposing party to the sufficiency issue,” id. at
975, a court may find a de minimis departure and weigh the
evidence. See id.
     Southern Regional claims that it “implicitly” raised this
issue in its Rule 50(a) motion at trial. The district court
rejected this argument, finding that Southern Regional’s failure
to raise the issue in its Rule 50(a) motion did not amount to
technical noncompliance or a de minimis departure from the rule.
The court found that “the record showed that the substance of
[Southern Regional]’s motion and arguments did not even give a
hint that this was one of the grounds upon which [Southern
Regional] was moving.” We conclude, after our review of the
record, that the district court did not err in finding the
challenge to the sufficiency of the evidence of harassment
damages waived.

                                  18
     Southern Regional contends on appeal that the only evidence

presented at trial regarding damages pertained exclusively to the

damages Flowers sustained as a result of her termination from

Southern Regional.   Southern Regional asserts that because the

jury found that the reasons behind Flowers’s termination were

nondiscriminatory and because Flowers “cannot separate her claims

of emotional distress from a claim for which she is not entitled

to recover,” there is “no evidence” to support the jury’s award

of damages.

     To recover more than nominal damages for emotional harm, a

plaintiff must provide proof of “actual injury” resulting from

the harassment.    See Brady v. Fort Bend County, 145 F.3d 691, 718

(5th Cir. 1998), cert. denied, 525 U.S. 1105 (1999); see also

Carey v. Piphus, 435 U.S. 247, 248 (1978).   Furthermore,

emotional harm will not be presumed simply because the plaintiff

is a victim of discrimination.   See Patterson v. P.H.P.

Healthcare Corp., 90 F.3d 927, 939 (5th Cir. 1996).   To

demonstrate an actual, or “specific discernable,” injury, “[t]he

existence, nature, and severity of emotional harm” must be

proved.   See id. at 940; see also Brady, 145 F.3d at 718.

     Even under the highly deferential plain error standard, we

conclude that Flowers failed to present any evidence of actual

injury, such as would entitle her to an award of more than

nominal damages.   The only evidence of injury adduced by Flowers

was of events that occurred after she was terminated from

                                 19
Southern Regional,8 evidence that is irrelevant to the question

of actual injury stemming from the harassment.

     Flowers asserts that because she testified at trial that

the harassment and subsequent discharge “took away [her] self-

respect and [her] dignity,” she has demonstrated “some evidence”

of damage.   However, we conclude that this testimony, by itself,

cannot support an award greater than nominal damages.   Not only

is the totality of the evidence solely Flowers’s own testimony,

see Patterson, 90 F.3d at 938 (“[A] claimant’s testimony alone

may not be sufficient to support anything more than a nominal

damage award.”), it fails to demonstrate the nature or severity

of the alleged emotional harm.   See Brady, 145 F.3d at 718.

     As the record makes clear, daily harassment towards an HIV-

positive individual such as Flowers may not only affect that

individual emotionally, but may also cause a decline in the

health of that individual, resulting in a particularized physical

consequence.   Dr. Osterberger, Flowers’s personal physician at

the time of her employment with Southern Regional, provided

general testimony regarding the effects of stress on a person

with HIV and stated that such stress “can” aggravate HIV;


     8
        Flowers testified that, after her discharge from
Southern Regional, she “started losing weight, had a lot of
diarrhea, nausea, wasn’t sleeping, [and] just got ill.” Her
friend and former co-worker Dawn Van Purnell testified that after
her termination, Flowers “lost a lot of weight,” “started going
to the doctor a lot more,” and “had diarrhea much more than she
had ever had before.”

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however, this general testimony did not connect the possible

effects of such stress with a particular injury to Flowers.    Dr.

Osterberger did not testify that Flowers suffered injury, but

only stated that it was possible for HIV-positive individuals to

suffer injury.   Moreover, there is no testimony that Flowers’s

health deteriorated during the period of time between Hallmark’s

discovery of Flowers’s HIV-positive condition and Flowers’s

termination from Southern Regional.

     Because there is no evidence in the record focusing on the

existence of actual injury during the time period before Flowers

was discharged, we must vacate the jury’s award of damages.

                           V. CONCLUSION

     For the foregoing reasons, we AFFIRM the final judgment

entered on the jury verdict as to Southern Regional’s liability

for disability-based harassment.     However, we VACATE the jury’s

damages award and REMAND the case for the entry of an award of

nominal damages.   Each party shall bear its own costs.




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