                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT


                                No. 01-60341


                          LAURIE HAMILIN PICOU,

                                                        Plaintiff-Appellee,

                                   versus

                     CITY OF JACKSON, MISSISSIPPI,

                                             Defendant-Appellant.
_________________________________________________________________

           Appeal from the United States District Court
             for the Southern District of Mississippi
                         (3:99-CV-604-BN)
_________________________________________________________________
                          August 13, 2002

Before JOLLY, JONES, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     For Laurie Picou’s sex discrimination and retaliation action

against the City of Jackson, primarily at issue is whether there is

sufficient     evidence   for   emotional   distress.      She    accepted   a

remittitur to $50,000 from the $400,000 jury award.              REVERSED and

REMANDED.

                                     I.

     Picou, an officer with the Jackson Police Department (JPD),

transferred to the canine unit in July 1996, where she was assigned

“Geno”; provided $400 monthly for the dog’s care; allowed to use a

“take home” automobile and provided gasoline for it; and promoted

to detective.     In August 1997, Picou advised Lieutenant Rochester

*
     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this opinion should not be published and is not precedent except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.
she was pregnant and required a light duty assignment.               Although

Picou wanted to continue with the canine unit and presented a

physician’s letter stating she could do so, JPD reassigned her to

an administrative position and reassigned Geno.

     While Picou was on light duty, Lieutenant Rochester received

correspondence    from     the   Assistant     Chief    indicating     Geno’s

reassignment was temporary and he would be returned to Picou upon

her return to regular duty.      Picou filed a grievance with JPD over

Geno’s reassignment; the Police Chief represented to Picou Geno

would be returned to her upon her ability to “resume full duties”.

Picou filed an EEOC charge, claiming gender discrimination over

Geno’s reassignment.

     Following childbirth, Picou returned to work in January 1998

and requested Geno.      The Deputy Chief informed Picou:       Geno would

not be reassigned to her because he was performing well with his

new handler; she would be assigned “Casper”.           Picou responded that

Casper was known by members of the canine unit to have problems.

The Deputy Chief responded it was the decision of the canine unit

coordinator (the coordinator).

     Upon Picou’s confronting the coordinator, her version is he

responded:    she should not be a “baby-making machine”; and if she

wanted a pet, she could purchase one from a pet store.          His version

is he told Picou Casper would be assigned to her because he felt

Casper   would   perform   better   with   a   more    experienced   handler

(Picou).     Picou filed her second discrimination charge with the

EEOC, claiming, inter alia, retaliation.


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     Later in January, Picou was assigned Casper and experienced

numerous problems with him.    Casper displayed timidity and fear

that interfered with his ability to function.     Crowds and black

police officers triggered particularly severe nervous reactions.

After a veterinarian’s examination that May, Casper was prescribed

Phenobarbital.

     Following a confrontation with the coordinator concerning

Casper’s medication, the coordinator directed Picou to kennel

Casper; Picou was transferred out of the canine unit in July; she

was required to return her “take home” automobile; and her rank was

reduced to patrol officer.    Shortly thereafter, Picou filed her

third EEOC charge, claiming, inter alia, further retaliation and

continuing discrimination.    That September (1998), she filed her

fourth charge.

     In March 1999, Picou was involved in an automobile accident

while driving a police vehicle outside the city limits.    She was

notified JPD intended to reprimand her (two day suspension) for

violating JPD policy (operating city vehicle outside city limits

without supervisor’s prior approval).    On appeal to the Jackson

Civil Service Commission, the suspension was reduced to a written

reprimand.

     Also that March, the EEOC determined reasonable cause existed

to believe JPD discriminated and retaliated against Picou; she

declined to engage in the conciliation process.   After receiving a

right to sue letter from the EEOC, she filed this action, claiming

gender discrimination and retaliation, in violation of Title VII of


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the Civil Rights Act of 1964, as well as violations of 28 U.S.C. §

1983 and the Family and Medical Leave Act, 29 U.S.C. § 2611.

     Summary judgment was granted against Picou’s FMLA and § 1983

claims. Concerning Title VII, the jury returned a verdict for her,

awarding no back pay but $400,000 for emotional distress.              Picou

moved for attorney’s fees and costs; the City, for judgment as a

matter of law (JML), new trial, or remittitur.

     The    JML   motion   claimed   Picou   failed   to   prove   emotional

distress; the new trial motion, that Picou’s “counsel engaged in

gross misconduct during closing arguments by making improper,

prejudicial and inflammatory arguments to the jury”. Remittitur to

$50,000 was ordered with the provision that, if accepted, Picou

would also receive attorney’s fees and costs of approximately

$41,000.    Picou accepted the remittur.

                                     II.

     Although not contesting liability, the City presents three

issues:    Picou failed to present sufficient proof of actual injury

to support the emotional distress damages; the remittitur fell

outside of the maximum recovery rule and should have allowed no

more than $10,000; and the district court abused its discretion by

not granting a new trial.        (As discussed in part II.B., it is

necessary to address only the sufficiency issue.)

                                     A.

     In closing argument, Picou requested $1 million for emotional

distress.    The jury awarded $400,000.        The City’s post-verdict,

Rule 50(b) motion claimed insufficient evidence.


                                      4
                                   1.

     As she did in district court in contesting the Rule 50(b)

motion, Picou claims the City failed to raise this issue in its

pre-verdict Rule 50(a) motions.            Generally, a Rule 50(b) JML is

limited to the grounds presented in the Rule 50(a) motion.                E.g.,

Bay Colony, Ltd. v. Trendmaker, Inc., 121 F.3d 998, 1003 (5th Cir.

1997); FED. R. CIV. P. 50(b).      This permits the district court to

re-examine the sufficiency of the evidence after trial while, pre-

verdict, the nonmovant is alerted to a potential insufficiency in

her case prior to its submission to the jury.             E.g., MacArthur v.

Univ. of Tex. Health Ctr., 45 F.3d 890, 896-97 (5th Cir. 1995).

Where these purposes are satisfied, technical noncompliance with

Rule 50’s requirements is permitted.         See, e.g., Polonco v. City of

Austin, Tex., 78 F.3d 968, 975 (5th Cir. 1996); Bay Colony, 121

F.3d at 1003-04.

     At   the   close   of   Picou’s   case,    the    City   requested   JML,

contending: “there has been no sufficient evidence put forward by

the plaintiff to support ... claims for sex discrimination and

retaliation under Title VII”.          The court immediately responded:

“All right.     I do not need any argument on that motion.                That

motion is denied”. (Emphasis added.) Likewise, at the close of the

evidence, after the City’s attorney stated, “I would like to make

a [JML] motion”, the court responded:          “I’ll consider it made, and

you may consider it refused .... Denied”.             (Emphasis added.)

     Usually, parties are not allowed to raise issues, such as new

legal defenses or theories, when not raised in Rule 50(a) motions


                                       5
because, in such situations, the nonmovant is prevented from

presenting his entire case to the jury.            See Morante v. Am. Gen.

Fin. Ctr., 157 F.3d 1006, 1010 (5th Cir. 1998) (defendant’s agency

status); Mozingo v. Correct Mfg. Corp., 752 F.2d 168, 171-72 (5th

Cir. 1985) (affirmative defense); Sulmeyer v. Coca Cola Co., 515

F.2d 835, 846 (5th Cir. 1975) (new theory of antitrust liability),

cert. denied, 424 U.S. 934 (1976).       However, when the requested JML

deals with evidence sufficiency and the defendant moves for JML at

the close of all the evidence, technical noncompliance with Rule 50

has been typically found de minimus if “the motion sufficiently

alerted the court and the opposing party to the sufficiency issue”.

Polonco, 78 F.3d at 975; see also, Alacatel USA, Inc. v. DGI

Techs., Inc., 166 F.3d 772, 780-81 (5th Cir. 1999) (deciding

whether technical noncompliance prejudiced the nonmovant).                For

instance, Guilbeau v. W.W. Henry Co., 85 F.3d 1149, 1160-61 (5th

Cir. 1996), cert. denied, 519 U.S. 1091 (1997), held a defendant’s

vague and broad pre-verdict JML motion preserved the sufficiency of

the evidence on a product defect issue because the bulk of the

evidence and trial focused on the defect and causation.

     Although the City’s motion could have been more specific, two

factors convince us Rule 50's purposes were sufficiently met.

First, the district court cut off any argument by either party, by

immediately stating its intent to deny each of the two Rule 50(a)

motions.   Second,   our   review       of   the   record   shows   the   City

consistently claimed Picou failed to prove both liability and




                                    6
damages, although she offered evidence of both to the jury.      See

Bay Colony, 121 F.3d at 1003-04.

                                  2.

      We review de novo the JML ruling, applying the same standard

as did the district court.    Coffel v. Stryker Corp., 284 F.3d 625,

630 (5th Cir. 2002).   To grant JML against Picou, we must conclude

“there is no legally sufficient evidentiary basis for a reasonable

jury to find for [Picou] on [the damages] issue”.     FED. R. CIV. P.

50(a)(a)(1).     We consider “all of the evidence in the record,

draw[ing] all reasonable inferences in favor of the nonmoving

party, and may not make credibility determinations or weigh the

evidence”.     Ellis v. Weasler Eng'g Inc., 258 F.3d 326, 337 (5th

Cir. 2001) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133, 150 (2000)).      To uphold the damages award, Picou must

“establish a conflict in substantial evidence on each essential

element of [her] claim”.     Anthony v. Chevron USA, Inc., 284 F.3d

578, 583 (5th Cir. 2002) (citing Boeing Co. v. Shipman, 411 F.2d

365, 374 (5th Cir. 1969) (en banc)).

     To recover more than nominal damages for emotional harm, the

plaintiff must provide “proof of actual injury”.    Carey v. Piphus,

435 U.S. 247, 248 (1978).    Carey addressed damages under 42 U.S.C.

§ 1983; but we have extended its reasoning to “cases involving

federal claims for emotional harm”, including Title VII. Patterson

v. P.H.P. Healthcare Corp., 90 F.3d 927, 938 n.11 & 940 (5th Cir.

1996), cert. denied, 519 U.S. 1091 (1997).




                                   7
     Vadie v. Miss. State Univ., 218 F.3d 365, 376-77 (5th Cir.

2000), cert. denied, 531 U.S. 1113 (2001), and cert. denied, 531

U.S. 1150 (2001), summarized the level of specificity and types of

evidence necessary to prove mental damages.                   There must be a

“specific discernable injury to the claimant’s emotional state”,

proven by evidence of the “nature and extent” of the harm.                 Id. at

376 (quoting Patterson, 90 F.3d at 938 & 940).              “‘[H]urt feelings,

anger and frustration are part of life’, and [are] not the types of

harm that” can support an emotional damages award.                   Id. (quoting

Patterson, 90 F.3d at 940).

     A   plaintiff’s       testimony         alone   may     be   insufficient;

corroborating testimony or medical or psychological evidence may be

required.    Id. at 377.       (“‘[A] plaintiff’s testimony, standing

alone, can support an award ...; however, the testimony must

establish   that     the   plaintiff    suffered     demonstrable       emotional

distress,    which     must    be      sufficiently        articulated’”,     and

“‘conclusory   statements     that     the    plaintiff     suffered    emotional

distress’” will not support an award for emotional distress.

(quoting Price v. City of Charlotte, 93 F.3d 1241, 1254 (4th Cir.

1996), cert. denied, 520 U.S. 1116 (1997))). Evidence of emotional

harm may    include    “sleeplessness,        anxiety,     stress,    depression,

marital strain, humiliation, emotional distress, loss of self

esteem, excessive fatigue, or a nervous breakdown”.                    EEOC POLICY

GUIDANCE No. 915.002 § II.(A)(2) (14 July 1992) (noting the EEOC

typically requires medical evidence before a claimant may seek

emotional damages during conciliation negotiations).


                                        8
     Picou’s emotional distress evidence consisted of her and her

husband’s testimony.   Her testimony was:   she felt “ostracized”,

was “hurt”, embarrassed, humiliated, and ridiculed; and the events

“affected [her] marriage”.    Her husband testified:   on more than

one occasion, Picou came home “very upset and distraught”; and the

events “badly affected us as a family”.

     Our cases have consistently held that more is necessary for

emotional distress damages.   See Cousin v. Trans Union Corp., 246

F.3d 359, 370-71 (5th Cir.) (plaintiff’s testimony of frustration,

irritation, anger, and upset insufficient), cert. denied, 122 S.

Ct. 346 (2001); Brady v. Fort Bend County, 145 F.3d 691, 718-20

(5th Cir. 1998) (plaintiffs’ uncorroborated testimony that they:

could not “accept it mentally”; were “highly upset”; experienced it

as “the worst thing that has ever happened to me”; and “didn’t feel

like the same person” insufficient without specific manifestations

of emotional harm and any evidence they sought medical treatment),

cert. denied, 525 U.S. 1105 (1999); Patterson, 90 F.3d at 939-41

(plaintiff’s uncorroborated testimony that racial slurs made her

feel “frustrated”, “real bad”, “hurt”, “angry”, and “paranoid” were

too vague); but cf., Migis v. Pearle Vision, Inc., 135 F.3d 1041-47

(5th Cir. 1998) (uncorroborated but detailed “testimony of anxiety,

sleeplessness, stress, marital hardship and loss of self-esteem”

justified jury award of $5,000); Farpella-Crosby v. Horizon Health

Care, 97 F.3d 803, 809 (5th Cir. 1996) (affirmed jury award of

$7,500 based on claimant’s uncorroborated testimony that hostile




                                 9
work environment made her feel “very embarrassed, very belittled”,

“about two inches high”, and “pretty stupid”).

     Consequently, the conclusory statements by Picou and her

husband concerning her hurt feelings and unspecified effects on her

marriage and family are not sufficient evidence from which a

reasonable jury could find emotional distress to support damages.

See Vadie, 218 F.3d at 376; see also Hitt v. Connell, No. 01-50117

2001 WL    1764149    (5th    Cir.    31    July   2002)   (plaintiff’s   vague,

conclusory testimony without corroborating evidence from family

members or coworkers, medical evidence, or physical manifestations

of distress cannot legally support emotional distress award).

                                           B.

     As    noted,    having   found    Picou’s     evidence   insufficient   to

support the damages award, we need not reach the City’s other

issues:    remittitur, the maximum recovery rule, and denial of new

trial.    (The maximum recovery rule implicates the excessiveness of

a jury award rather than whether the evidence is sufficient to

support an award at all.        See, e.g., Salinas v. O’Neill, 286 F.3d

827 (5th Cir. 2002).)

     We note, however, the City’s contentions concerning Picou’s

counsel’s remarks during closing argument provide further support

for holding the evidence does not allow emotional distress damages.

In closing argument, Picou’s counsel contended she should recover

because:    she was “personal[ly] attack[ed]” on cross-examination

about her divorce and an action for excessive use of force/wrongful

death in which she was a defendant; a JPD Internal Affairs officer


                                           10
sat in the courtroom during trial; the City’s equal employment

opportunity officer appeared as the City’s representative at trial;

and the City’s counsel was defending this case while handling the

appeal of Picou’s wrongful death case.            Picou’s counsel also asked

the jury to “make a statement” with their damages award.

     As stated, we need not reach whether this conduct was “so

pronounced    and   persistent    that       it    permeate[d]     the    entire

proceeding” and would warrant a new trial.              See Winter v. Brenner

Tank, Inc., 926 F.2d 468, 472 (5th Cir. 1991).              Nevertheless, it

appears the conduct influenced the jury, especially considering the

large emotional distress award (again, Picou requested $1 million)

in the light of the pronounced lack of evidence concerning any

actual injury apart from hurt feelings and unspecified effects on

her marriage and family.

                                       C.

     Having   decided   there    was     insufficient      evidence      for   the

damages, and even though the City does not contest liability, we

question whether Picou is entitled to prevailing party attorney’s

fees, especially in the amount awarded.            See Farrar v. Hobby, 506

U.S. 103, 114-15 (1992); Flowers v. Southern Reg’l Physician

Servs., Inc., 286 F.3d 798 (5th Cir. 2002).                 The City has not

raised this    issue.    Nevertheless,        it   is   subsumed   within      the

challenge to the damages.   As noted, the awarded fees were part of

the remittitur accepted by Picou.           This issue is best left for the

district court on remand.




                                       11
                                   III.

     For the foregoing reasons, the jury award of $400,000, for

which a remittitur to $50,000 was accepted, is VACATED; and this

case is   REMANDED   for   entry   of    judgment    consistent   with   this

opinion, including the appropriate amount, if any, for attorney’s

fees.

                                                    VACATED and REMANDED




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