                    United States Court of Appeals,

                               Fifth Circuit.

                                No. 93-7673.

                   Judy PORTIS, Plaintiff-Appellant,

                                        v.

   FIRST NATIONAL BANK OF NEW ALBANY, MS, Defendant-Appellee.

                               Oct. 10, 1994.

Appeal from the United States District Court for the Northern
District of Mississippi.

Before WIENER, EMILIO M. GARZA and BENAVIDES, Circuit Judges.

     EMILIO M. GARZA, Circuit Judge:

     Judy Portis sued her employer, the First National Bank of New

Albany, Mississippi ("FNB"), after FNB demoted her from loan

officer to a bookkeeping position.             She alleged that her demotion

constituted sex discrimination, in violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (1988) ("Title VII").

The district court granted FNB's motion for judgment as a matter of

law at the close of all the evidence.            Portis appeals the district

court's decision, claiming she had adduced sufficient evidence of

intentional discrimination to overcome judgment as a matter of law.

Because    we   agree   that   Portis    was    entitled   to   have   her   case

submitted to a jury, we reverse the judgment as a matter of law and

remand for a new trial.

                                        I

         Judy Portis is a long-term employee of FNB.1            She began her

     1
      In reviewing the grant of judgment as a matter of law, we
view the evidence in the light most favorable to the non-movant.

                                        1
employment with FNB in 1971, and by 1978 she was promoted to loan

secretary.    As a loan secretary, she consistently received high

performance     evaluations.    In       June   1988,   FNB   gave    Portis

responsibility for student loans, and C.R. "Butch" Collums became

her supervisor.     One year later, Portis received a promotion to

loan officer, retaining student loan responsibility in addition to

her new duties.

     Portis' performance evaluations as a loan officer ranged from

mediocre to unacceptable.      A month after FNB learned that the

student loan files were substantially in arrears, FNB demoted

Portis from loan officer to a bookkeeping position.2                 Portis'

salary accordingly decreased from $20,352 as a loan officer to

$12,500 as a bookkeeper.3

     Portis brought suit against FNB, claiming sex discrimination

in violation of Title VII.4          She testified that her two and

one-half years as a loan officer did not progress well.                Among

other problems, she and Collums did not have an amicable working

relationship.    According to Portis, Collums continuously belittled



See Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969);             see
also infra Part II.A.
     2
      FNB's evidence indicated that Portis voluntarily resigned
her position as a loan officer. Portis testified that Collums
coerced her into resigning.
     3
      Portis also claims that the pay cut was a discriminatory
act, because her new salary is less than her previous salary as a
loan secretary.
     4
      Portis also brought an Equal Pay Act claim, which the
district court dismissed at the close of Portis' case-in-chief.
Portis does not challenge this dismissal on appeal.

                                     2
both her and her performance.5        She asserted that Collums told her

that she would never be worth as much as a man to the bank because

she was a woman.      Additionally, Collums refused to provide Portis

with a secretary.      Portis testified that every other loan officer,

all of whom were male, had his own secretary.              Other witnesses,

however, testified that the secretaries all belonged to a pool and

worked for all the loan officers, including Portis.                Portis also

testified that the loan secretaries either could not or would not

work for her consistently, as they completed assignments for their

assigned supervisors first and had no additional time to do Portis'

assignments.         Other   evidence       indicated   that     although    the

secretaries were willing to work for Portis, she preferred to do

her own secretarial work.       Moreover, FNB witnesses testified that

Portis refused to use the loan secretaries even when ordered to do

so.

      Portis did not dispute her poor performance.              Rather, Portis

challenged     the    reasons   for     this    failure,       asserting    that

discriminatory conduct by FNB caused her poor performance.                   FNB

claimed that Portis lied about the status of the student loan files

and failed to carry out other job responsibilities, and that these

reasons for demoting Portis were legitimate and nondiscriminatory.

      At the close of all the evidence, the district court granted

FNB a judgment as a matter of law.           The court concluded that:        1)

Portis failed to present sufficient evidence of sex discrimination

      5
      Collums also lowered Portis' ratings contained in a prior
evaluation by her former supervisors. The parties disagree as to
the purpose and legitimacy of this action.

                                        3
to overcome a judgment as a matter of law;              and 2) Portis failed to

both causally connect any purported sex discrimination with FNB's

reasons    for    demoting    her   and       show   that     FNB's    reasons     were

pretextual.

                                          II

                                          A

     "In reviewing a district court's disposition of a motion for

judgment [as a matter of law], we apply the same test as did the

district court, without any deference to its decision."                      Little v.

Republic Ref. Co., 924 F.2d 93, 95 (5th Cir.1991).

     "[T]he Court should consider all of the evidence—not just that
     evidence which supports the non-mover's case—but in the light
     and with all reasonable inferences most favorable to the party
     opposed to the motion. If the facts and inferences point so
     strongly and overwhelmingly in favor of one party that the
     Court believes that reasonable men could not arrive at a
     contrary verdict, granting of the motion[ ] is proper. On the
     other hand, if there is substantial evidence opposed to the
     motion[ ], that is, evidence of such quality and weight that
     reasonable and fair-minded men in the exercise of impartial
     judgment might reach different conclusions, the motion[ ]
     should be denied.... There must be a conflict in substantial
     evidence to create a jury question.       However, it is the
     function of the jury as the traditional finder of the facts,
     and not the Court, to weigh conflicting evidence and
     inferences, and determine the credibility of witnesses."

Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969) (en

banc);    see also Normand v. Research Inst., 927 F.2d 857, 859 (5th

Cir.1991) (applying Boeing standard).

      Under Title VII, it is unlawful for any employer "to fail or

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

discriminate      against     any   individual          with     respect      to     ...

compensation,      terms,    conditions,       or    privileges       of   employment,

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

                                          4
national origin."     42 U.S.C. § 2000e-2(a)(1) (1988).     A Title VII

plaintiff carries "the initial burden of offering evidence adequate

to create an inference that an employment decision was based on a

discriminatory criterion illegal under the Act."          International

Brotherhood of Teamsters v. United States, 431 U.S. 324, 358, 97

S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977).6         This inference arises

"only because we presume these acts, if otherwise unexplained, are

more likely than not based on the consideration of impermissible

factors."     Furnco, 438 U.S. at 577, 98 S.Ct. at 2949-50.

         A plaintiff may use either direct or circumstantial evidence

to prove a case of intentional discrimination. Aikens, 460 U.S. at

714 n. 3, 103 S.Ct. at 1481 n. 3.       Because direct evidence is rare,

a plaintiff ordinarily uses circumstantial evidence to meet the

test set out in McDonnell Douglas.7       This test establishes a prima

     6
      The customary rubric for a prima facie case includes the
following elements: 1) membership in a protected class; 2) that
the plaintiff was qualified for the position at issue; 3) that
the defendant made an adverse employment decision despite the
plaintiff's qualifications; and 4) that the plaintiff was
replaced with a person not a member of the protected class. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36
L.Ed.2d 668 (1973). However, this is not the only means of
demonstrating a prima facie case; McDonnell Douglas "did not
purport to create an inflexible formulation." International Bhd.
of Teamsters, 431 U.S. at 358, 97 S.Ct. at 1866; see also United
States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711,
715, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983); Furnco Constr.
Corp. v. Waters, 438 U.S. 567, 576, 98 S.Ct. 2943, 2949, 57
L.Ed.2d 957 (1978).
     7
      1) The plaintiff must first demonstrate a prima facie case
of discrimination; 2) if successful, the burden of production
shifts to the defendant to show a legitimate and
nondiscriminatory basis for the adverse employment decision; and
3) finally, the plaintiff must show that the defendant's offered
reason is pretext or unworthy of belief. See McDonnell Douglas,
411 U.S. at 802, 93 S.Ct. at 1824; Davis v. Chevron U.S.A.,

                                    5
facie case by inference, but it is not the exclusive method for

proving intentional discrimination.       "[T]he McDonnell Douglas test

is inapplicable where the plaintiff presents direct evidence of

discrimination."       Trans World Airlines, Inc. v. Thurston, 469 U.S.

111, 121, 105 S.Ct. 613, 621-22, 83 L.Ed.2d 523 (1984).8

           "Direct evidence is evidence which, if believed, proves the

fact       [of   intentional   discrimination]   without    inference   or

presumption."       Brown v. East Miss. Elec. Power Ass'n, 989 F.2d 858,

861 (5th Cir.1993).       In the context of Title VII, direct evidence

includes any statement or written document showing a discriminatory

motive on its face.       See Vaughn, 918 F.2d at 521;     Miles v. M.N.C.

Corp., 750 F.2d 867, 870 (11th Cir.1985) (holding "discriminatory

statements and admissions" to be direct evidence).

           Portis contends that, because she had adduced sufficient

evidence of intentional discrimination, the district court erred in

granting FNB's motion for judgment as a matter of law.             Portis

testified about several statements by Collums, indicating his

intent to discriminate against her because of her sex.          According


Inc., 14 F.3d 1082, 1087 (5th Cir.1994) (applying McDonnell
Douglas test); Vaughn v. Edel, 918 F.2d 517, 521 (5th Cir.1990)
(same).
       8
      See also Davis, 14 F.3d at 1085 ("If there is direct
evidence that an employer placed substantial negative reliance on
an illegitimate criterion in reaching an employment decision,
however, resort to inferential methods of proof is
unnecessary."); Vaughn, 918 F.2d at 521 ("When, however, direct
credible evidence of employer discrimination exists, a different
process appertains."); Lee v. Russell County Bd. of Educ., 684
F.2d 769, 773 (11th Cir.1982) (holding that "[w]here a case of
discrimination is made out by direct evidence, reliance on the
four-part test developed for circumstantial evidence is obviously
unnecessary").

                                      6
to Portis, Collums refused her a secretary because she was a woman

and told her she would never be worth as much as a man to the bank,

because she could not participate in the community.                  Because

Collums had deprived her of a secretary, Portis testified, she had

to do her own clerical work.         Consequently, she fell behind in her

other work, and FNB ultimately demoted her.            As this case was

decided on a motion for judgment as a matter of law, Portis is

entitled to all "reasonable inferences," including that if she had

been given    a   secretary,   her    performance   would    not   have   been

deficient.    We cannot say that a reasonable jury would not under

any circumstances find that Portis' poor performance was a product

of FNB's earlier discriminatory deprivation of a secretary.               Given

that    standard,   Portis     has    adduced   sufficient    evidence      of

intentional discrimination to warrant presentation of her case to

a jury.

                                       B

       FNB, nonetheless, argues that Portis' testimony does not

constitute direct evidence sufficient to overcome a motion for

judgment as a matter of law because 1) it is merely her personal

belief that Collums intended to discriminate against her;             and 2)

Portis failed to show a causal connection between Collums' alleged

discriminatory intent and her demotion.

       First, FNB contends that Portis only presented evidence of her

personal belief that FNB discriminated against her. "[G]eneralized

testimony by an employee regarding his subjective belief that his

discharge was the result of age discrimination is insufficient to


                                       7
make an issue for the jury in the face of proof showing an

adequate, nondiscriminatory reason for his discharge."                    Elliott v.

Group Medical & Surgical Serv., 714 F.2d 556, 566 (5th Cir.1983),

cert. denied, 467 U.S. 1215, 104 S.Ct. 2658, 81 L.Ed.2d 364 (1984)

(citing    Houser    v.   Sears,   Roebuck   &    Co.,      627    F.2d    756   (5th

Cir.1980));    see also Little, 924 F.2d at 96 (finding subjective

belief of little value toward proving a prima facie case).                       The

district court held that Portis' testimony regarding Collums'

statements    was    exactly   this   sort   of       subjective     belief.      We

disagree.

     In Elliott, the plaintiffs "offered no more than conclusory

statements    of    age   discrimination.        On    cross-examination         each

[plaintiff] admitted that he was never told that age was a factor

in his discharge."9       Instead, the Elliott plaintiffs only believed

they had been terminated because of age.              Id.   Portis, in contrast,

testified that Collums told her that she would not have a secretary

because she was a woman.       She also testified that he told her she

would be paid less because she was a woman.                       Unlike those in

Elliott,    these    statements    require   no   additional         inference    to


     9
      Id. at 566. See also Langley v. Jackson State Univ., 14
F.3d 1070, 1075 (5th Cir.1994) (holding that evidence of
supervisors' race-consciousness was not direct evidence because
it did not show that the decisions were because of that
race-consciousness), petition for cert. filed, 62 U.S.L.W. 3794
(U.S. May 13, 1994); Guthrie v. Tifco Indus., 941 F.2d 374, 378-
79 (5th Cir.1991) (finding statements relating to age of
employees not direct evidence because they were too vague and
open to other plausible interpretations), cert. denied, --- U.S.
----, 112 S.Ct. 1267, 117 L.Ed.2d 495 (1992); Little, 924 F.2d
at 96 (rejecting subjective belief because the "record contains
absolutely no manifestations of this alleged [belief]").

                                      8
conclude that she was wrongfully treated because of her sex.

Consequently, Elliott does not apply.10

     FNB further argues that, because Portis was demoted for poor

performance, Portis cannot show the necessary causal connection

between Collums' alleged discriminatory intent and her demotion.

Although Portis concedes that her performance was unacceptable,

Portis contends that her poor performance was itself the product of

discrimination,   thereby   making   the   decision   to   demote   her

     10
      FNB also contends that Portis' testimony cannot, without
corroboration, be sufficient direct evidence to overcome a motion
for judgment as a matter of law. When reviewing a judgment as a
matter of law, however, the question is not whether the
plaintiff's testimony on its own can satisfy the burden of
persuasion, but whether it is enough to establish intentional
discrimination. In this context, the plaintiff's uncorroborated
testimony is "sufficient to cast on the defendant the burden of
producing admissible evidence [of nondiscriminatory motivation]."
Jackson v. City of Killeen, 654 F.2d 1181, 1184 (5th Cir. Unit A
1981). See also Williams v. Williams Elecs., Inc., 856 F.2d 920,
923 n. 6 (7th Cir.1988) (finding plaintiff's testimony alone
sufficient to establish prima facie case); Yarbrough v. Tower
Oldsmobile, Inc., 789 F.2d 508, 512 (7th Cir.1986) (same). The
fact that Portis' case-in-chief consists solely of her own
testimony does not prevent her from establishing intentional
discrimination.

          FNB further argues that Portis' testimony cannot
     overcome the quantum of evidence provided by FNB because it
     is "self-serving and speculative testimony ... subject to
     especially searching scrutiny." Elliott, 714 F.2d at 564;
     New England Merchants Nat'l Bank v. Rosenfield, 679 F.2d
     467, 473 (5th Cir.1982) (rejecting "unsupported self-serving
     testimony that flies in the teeth of unimpeachable
     contradictory evidence and universal experience"), cert.
     denied, 459 U.S. 1173, 103 S.Ct. 819, 74 L.Ed.2d 1017
     (1983); Ralston Purina Co. v. Hobson, 554 F.2d 725, 728-29
     (5th Cir.1977) (same). FNB's assessment of the law is
     correct, but it errs in its application. In the Elliott
     line of cases, the plaintiffs' testimony failed because it
     alone stood against unimpeached and uncontradicted opposing
     testimony. Portis, however, challenged the testimony of the
     FNB witnesses. Because FNB has neither uncontradicted nor
     unimpeached evidence, Elliott's bar does not apply.

                                 9
discriminatory.    We have stated:

     Had [this employer] treated [the employee] in a color-blind
     manner ... [she] may have been fired ... for unsatisfactory
     work; on the other hand, she might have sufficiently improved
     her performance so as not to be one of the two "lowest ranked'
     employees, thereby avoiding termination.... This circuit will
     not sterilize a seemingly objective decision to [discipline]
     an employee when earlier discriminatory decisions have
     infected it.

Vaughn v. Edel, 918 F.2d 517, 522 (5th Cir.1990).             In Vaughn, the

employer, Texaco, did not give Vaughn, a black female attorney,

accurate employment evaluations and attendant counseling because of

her race.    When Texaco eventually made a reduction in workforce on

the basis of performance, Vaughn had one of the lowest ratings, and

Texaco dismissed her.       On appeal, this court concluded that the

district court committed clear error in focusing on the final act

of firing instead of the earlier discriminatory actions leading up

to that firing.

       FNB    claims   that    it   demoted   Portis    for    affirmatively

misleading her superiors about the status of her files and for

failing to stay current on applicable government regulations.            To

meet its burden, though, FNB must show that it would have demoted

any loan officer who acted in a similar manner, not just Portis,

whose poor    performance     allegedly   resulted     from   discriminatory

animus.   Although an employer may penalize employee misconduct, it

must apply the penalties equally. Levitt v. University of Texas at

El Paso, 847 F.2d 221, 227 n. 14 (5th Cir.), cert. denied, 488 U.S.

984, 109 S.Ct. 536, 102 L.Ed.2d 567 (1988);            see also Kientzy v.

McDonnell Douglas Corp., 990 F.2d 1051 (8th Cir.1993) (refusing to

allow misconduct to negate discrimination where other employees

                                     10
were not disciplined for the same misconduct);                  Corley v. Jackson

Police    Dep't,    639   F.2d    1296,    1299    (5th   Cir.     Unit   A   1981)

("[P]laintiffs' discharges are unlawful despite their wrongdoing,

if it is shown that, for impermissible reasons, they were singled

out for discriminatory treatment—either for discharge from among

others equally guilty, or for investigation from among others

equally suspected.").        Portis accordingly argues that, even if

FNB's characterization of her performance is true, FNB had excused

similar acts and omissions by other, male bank officers.11                     FNB

disputes this response, but a jury could reasonably conclude on the

record that FNB might not have disciplined any employee who acted

as Portis did, if the jury chose to believe Portis' version rather

than FNB's.        Again, this becomes an issue of credibility, and

consequently falls squarely within the province of the jury.                   See

Boeing Co. v. Shipman, 411 F.2d 365, 375 (5th Cir.1969) (en banc)

("[I]t is the function of the jury ... to weigh conflicting

evidence    and     inferences,    and        determine   the    credibility    of

witnesses.")      We therefore hold that Portis has adduced sufficient

evidence of intentional discrimination to require presentation to

a jury, and that the district court erred in granting FNB's motion

for judgment as a matter of law.12

     11
      Portis' testimony and her cross-examination of FNB
witnesses suggested that, although Jerry Dulaney, another bank
officer, failed to comply with IRS regulations and made false
reports to cover up his failure, FNB did not discipline Dulaney.
FNB's evidence on this issue indicated no false reports and no
need for disciplinary action.
     12
      Our holding that Portis has sufficiently established a
case of intentional discrimination to withstand a judgment as a

                                         11
                                C

      On appeal, Portis also argues that even if she loses on her

demotion claim, she has adduced sufficient evidence to prove a

claim of a "hostile work environment," as defined by Harris v.

Forklift Systems, Inc., --- U.S. ----, 114 S.Ct. 367, 126 L.Ed.2d

295 (1993).

     "A discriminatorily abusive work environment, even one that
     does not seriously affect employees' psychological well-being,
     can and often will detract from employees' job performance,
     discourage employees from remaining on the job, or keep them
     from advancing in their careers.       Moreover, even without
     regard to these tangible effects, the very fact that the
     discriminatory conduct was so severe or pervasive that it
     created a work environment abusive to employees because of
     their race, gender, religion, or national origin offends Title
     VII's broad rule of workplace equality."

--- U.S. at ---- - ----, 114 S.Ct. at 370-71.     See also Meritor

Savings Bank v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 2405, 91

L.Ed.2d 49 (1986) (concluding that "a plaintiff may establish a

violation of Title VII by proving that discrimination based on sex

has created a hostile or abusive work environment");     Carmon v.

Lubrizol Corp., 17 F.3d 791, 794 (5th Cir.1994) (discussing Harris

standard).



matter of law should not be interpreted as an indication of the
strength of either party's case. Also, because this case has not
yet been submitted to a jury, we do not comment on how the
district court should apply Price Waterhouse v. Hopkins, 490 U.S.
228, 241, 242, 109 S.Ct. 1775, 1785, 1786, 104 L.Ed.2d 268 (1989)
(holding (1) that, if both gender and legitimate grounds
influence an employer's decision, that decision is "because of"
gender; but (2) that the employer will not be liable, if it can
prove that the decision would have been the same absent the
impermissible factor). And, because we reverse the judgment of
the district court, we do not address FNB's request for
sanctions, based on its allegation that Portis' appeal is
frivolous. See Fed.R.App.P. 38.

                                12
        If Portis did not raise a hostile work environment claim in

the district court, we do not review it on appeal.           See Singleton

v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826

(1976) ("It is the general rule ... that a federal appellate court

does not consider an issue not passed on below.").             A party has

presented an issue in the trial court if that party has raised it

in either the pleadings or the pretrial order, or if the parties

have tried the issue by consent.        See Myrick v. City of Dallas, 810

F.2d 1382, 1386 (5th Cir.1987) (holding a claim not properly raised

if not in pleadings, pretrial order, or evidence presented); Laird

v. Shell Oil Co., 770 F.2d 508, 510-11 (5th Cir.1985) (refusing to

consider an issue not raised in the pleadings, pretrial order, or

trial evidence).     The raising party must present the issue so that

it places the opposing party and the court on notice that a new

issue is being raised.     See Simon v. United States, 891 F.2d 1154,

1158 (5th Cir.1990) (affirming district court's finding that a

party had waived an issue because the record did not put opponent

or court on notice).

        Portis did not raise a hostile work environment claim in her

pleadings,13 nor does this issue clearly appear in the pretrial

order.      See Valley Ranch Dev. Co. v. F.D.I.C., 960 F.2d 550, 554

(5th    Cir.1992)   (waiving   claims    omitted   from   pretrial   order);



       13
      Portis' complaint seeks damages for "sex discrimination"
resulting from "inferior working conditions," that is, "failure
to furnish Plaintiff with a secretary." The prayer asks for
"reinstatement to her position as a loan officer" and "actual and
punitive damages."

                                    13
Flannery v. Carroll, 676 F.2d 126, 129 (5th Cir.1982) (same).14   An

affirmative duty exists at the pretrial conference for each party

to allege clearly all factual and legal bases upon which the party

wishes to litigate the case.   See Hodges v. United States, 597 F.2d

1014, 1017-18 (5th Cir.1979) (refusing to find additional issue

raised because pretrial order unclear);   6A Wright, Miller & Kane,

Federal Practice and Procedure § 1527. Further, the pretrial order

controls the course of the trial. See Fed.R.Civ.P. 16 ("This order

shall control the subsequent course of the action....").          In

examining Portis' version of the facts and the issues in contest as

set out in the pretrial order, we cannot distinguish a "hostile

work environment" issue from Portis' "unequal treatment" issue.15

Claims of a hostile work environment also relate to the claims of

disparate treatment raised in Portis' pleadings.      We cannot say

that the pretrial order put FNB on notice that Portis intended to




     14
      A plaintiff need not use the magic words "hostile work
environment" to raise this claim. See Boutros v. Canton Regional
Transit Auth., 997 F.2d 198, 204 (6th Cir.1993) (finding claim
properly raised even though "hostile work environment" words not
utilized).
     15
      The pretrial order lists Portis' demotion claim, but it
does not list any hostile work environment claim. The relevant
contested issues of fact include: Item 9(f)—"Was Plaintiff's
inability to properly function as a loan officer caused by
discrimination against Plaintiff because of her sex?"; Item
9(g)—"Was plaintiff's failure to report the degree to which she
was behind in her work the result of harassment of her based upon
her sex?." The relevant contested issues of law include: Item
10(d)—"If plaintiff was unable to properly perform her duties as
a loan officer because of harassment of her based upon her sex,
have her rights as an employee, under Title VII of the Civil
Rights Act of 1964 been violated?"

                                 14
raise two alternatives theories of recovery.16

      Portis nonetheless contends that the parties actually tried

the hostile work environment claim by consent.      Even if waived in

the pretrial order, parties may try a new issue by express or

implied consent.      See Fed.R.Civ.P. 15(b).17   The record does not

support a finding of express consent by FNB.       Moreover, trial by

implied consent turns on:

     whether the parties recognized that the unpleaded issue
     entered the case at trial, whether the evidence that supports
     the unpleaded issue was introduced at trial without objection,
     and whether a finding of trial by consent prejudiced the
     opposing party's opportunity to respond.

United States v. Shanbaum, 10 F.2d 305, 312-13 (5th Cir.1994); see

also Haught v. Maceluch, 681 F.2d 291, 305-06 (5th Cir.1982).        As

a general rule, a party impliedly consents by failing to object to

evidence supporting issues that go beyond the pleadings.      Haught,

681 F.2d at 305.

      Nonetheless, unless we could reasonably expect FNB to have

recognized that the new issue was being raised, we cannot hold that

     16
      Nor can we presume that FNB would have tried its case in
the same manner if Portis had raised the issue in the pretrial
order. See Flannery, 676 F.2d at 131 ("We simply cannot know how
the trial would have proceeded.").
     17
          Rule 15(b) provides in relevant part:

             When issues not raised by the pleadings are tried by
             express or implied consent of the parties, they shall
             be treated in all respects as if they had been raised
             in the pleadings.... [F]ailure so to amend [the
             pleadings] does not affect the result of the trial of
             these issues.

     Fed.R.Civ.P. 15(b); see also Flannery, 676 F.2d at 131
     (stating purpose of Rule 15(b) is to base the outcome on the
     trial and not the pleadings).

                                   15
FNB consented to trial of a hostile work environment claim.                          See

Moody v. FMC Corp., 995 F.2d 63 (5th Cir.1993) (refusing to find

implied consent where evidence presented was not recognizable as an

independent      issue);       see     also     Domar    Ocean    Transp.     Ltd.    v.

Independent Ref. Co., 783 F.2d 1185, 1188 (5th Cir.1986) (same);

Jimenez v. Tuna Vessel Granada, 652 F.2d 415, 421 (5th Cir. Unit A

1981) (same).           Recognition of whether an unpleaded issue has

entered    the    case    at   trial      "depends      on   whether    the   evidence

supporting the issue is also relevant to another issue in the

case." Shanbaum, 10 F.3d at 313.                If the evidence overlaps in this

fashion, it does not equate to implied consent " "absent a clear

indication       that    the   party      who    introduced      the    evidence     was

attempting to raise a new issue.' "                     Haught, 681 F.2d at 305

(quoting International Harvester Credit Corp. v. East Coast Truck,

547 F.2d 888, 890 (5th Cir.1977)).

     Evidence of a hostile work environment claim may include "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."             Harris, --- U.S. at ----, 114 S.Ct.

at 371.    Portis did introduce evidence supporting these factors.18

She introduced each of these items, however, as part of her proof

of   her   disparate       treatment       claim,       that   is,     to   prove    the

discriminatory nature of her demotion.               Moreover, FNB directed all

     18
      Portis testified that Collums belittled her performance
and person, that he criticized her so much that she could not
sleep, "nervous ate," and cried frequently.

                                           16
evidence presented in response toward rebutting Portis' assertions

of discriminatory intent and causation.     Consequently, we cannot

say that FNB had any reason to believe that Portis was injecting a

hostile work environment claim into the case.19   Consequently, FNB

did not consent to trial of a hostile work environment claim in the

trial court.    Because Portis did not raise her hostile work

environment claim in either her pleadings or the pretrial order,

and the parties did not try the issue by consent, we hold that

Portis did not properly present a claim of hostile work environment

in the court below.   Accordingly, we do not address whether the

district court properly granted judgment as a matter of law against

Portis on this claim.20

                               III

     For the foregoing reasons, we REVERSE the grant of judgment as

a matter of law and REMAND to the district court for further

proceedings consistent with this opinion.




     19
      See Moody, 995 F.2d at 66 (finding no consent where
evidence on new issue was relevant to defenses already raised in
the pleadings); Domar, 783 F.2d at 1188 (holding that implied
consent was properly found only when party should reasonably have
believed that a new issue had been presented); Jimenez, 652 F.2d
at 421 (stating that evidence relevant to issues already raised
did not give fair notice of a new claim). Consequently, FNB's
failure to object to any material being outside the scope of the
pleadings does not imply consent.
     20
      We do not comment on whether the district court on remand
should allow Portis to raise a hostile work environment claim.

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