                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                                                                F I L E D
                     IN THE UNITED STATES COURT OF APPEALS
                                                                                  July 5, 2006
                              FOR THE FIFTH CIRCUIT
                                                                             Charles R. Fulbruge III
                                __________________________                           Clerk

                                       No. 05-11403
                                    Summary Calendar
                                __________________________


LILY M MOSS,
                                                                         Plaintiff-Appellee,

versus

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

                                                                     Defendant-Appellant.

                 ___________________________________________________

                       Appeal from the United States District Court
                            for the Northern District of Texas
                                    (No. 5:04-CV-162)
                 ___________________________________________________


Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
                 *
PER CURIAM:

         In this Title VII gender discrimination case, the employer appeals a jury verdict in

favor of the employee. The employer argues that judgment as a matter of law should have

been granted in its favor, that the district court erred by admitting an EEOC investigative

determination, and that the evidence was insufficient to sustain the jury’s award of mental


         *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under limited circumstances set forth in 5TH CIR.
R. 47.5.4.
anguish damages. Finding no merit in these arguments, we affirm.

                             I. FACTS AND PROCEEDINGS

       Lily Moss, a guard in a Texas state prison, filed a Title VII suit against her employer,

the Texas Department of Criminal Justice (“TDCJ”). She claimed that the prison warden,

Bruce Zeller, discriminated against her because of her sex by demoting her and filling her

vacant position with a male officer. At trial, TDCJ offered evidence that the demotion

resulted not from gender discrimination but from Moss’s violation of Rule 14B of TDCJ’s

General Rules of Conduct and Disciplinary Violations (“Rule 14B”), which prohibits the

use of all racial “slurs or epithets.” In particular, TDCJ produced evidence that Moss twice

said “nigger” in a twenty-minute conversation with her immediate supervisor and with

a co-worker, who afterward initiated the formal charges with TDCJ that precipitated
                   1
Moss’s demotion.

       While not denying that she twice uttered the offending term, Moss contends that

the true reason for Zeller’s chosen punishment of demotion, which Zeller admitted was

a “fairly severe punishment,” was gender discrimination. Moss’s evidence included trial

testimony in which Zeller justified his lesser punishment of a male officer who referred

to a Hispanic person as a “wetback” by stating that the slur was not uttered in an “ongoing

conversation.” Moss argued to the jury that Zeller’s testimony indicated that Zeller thought



       1
        The conversation occurred just after September 11, 2001, and included discussions
of cultural diversity training and racial tensions in the prison following the terrorist
attacks. Uncontroverted testimony indicated that Moss used the offending term while
recalling past events and did not direct the term at anyone in particular.

                                              2
she was a “female who talked too much.” Moss’s evidence also demonstrated that she had

no other disciplinary violations in the two years preceding the incident, that she had never

before violated Rule 14B, and that she had entered into a dispute resolution agreement

with the witness who initiated the charge against her. Moss introduced further evidence

that, per TDCJ policy, these facts supported mitigation of her punishment. Moreover,

Moss’s evidence included testimony that TDCJ typically institutes “progressive discipline,”

whereby the first rules violation is punished less severely than subsequent violations, but

that her Rule 14B violation resulted in a punishment at the high end of the discipline scale.

Additionally, Moss offered evidence of one other supervising employee under Zeller’s

charge who was not disciplined (or even investigated) for an alleged violation of Rule 14B;
                                                                        2
that employee was a male officer who used the prison term “wood.”

       Also during the trial, the district court admitted the EEOC’s investigative

determination, which concluded that there was reasonable cause to believe that Moss was

demoted based on her sex. After Moss rested, TDCJ moved for, and the district court

denied, judgment as a matter of law. The jury returned a verdict awarding Moss, inter alia,

$15,314 for mental anguish. After denying TDCJ’s renewed motion for judgment as a

matter of law, the district court entered a final judgment that included this amount.

                              II. STANDARD OF REVIEW

       This court reviews an order denying judgment as a matter of law de novo, viewing

       2
        Trial testimony indicated that “wood” is a loose acronym for “white offenders
doing hard time.” The parties dispute whether “wood” is used as a racial slur in prison
settings.

                                             3
the evidence in the light most favorable to the verdict. Ins. Co. of N. Am. v. Aberdeen Ins.

Servs., Inc., 253 F.3d 878, 883 (5th Cir. 2001). Judgment as a matter of law is appropriate

only when “there is no legally sufficient evidentiary basis for a reasonable jury to find for

that party on that issue.” FED. R. CIV. P. 50(a)(1). “There is no legally sufficient evidentiary

basis when the facts and inferences point so strongly and overwhelmingly in favor of one

party” that this court determines that a reasonable jury “could not arrive at a contrary

verdict.” Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 219 (5th Cir. 2001) (internal

quotation omitted). “[T]here must be more than a mere scintilla of evidence in the record”

to prevent judgment as a matter of law in favor of the defendant. Id. Ultimately, “[t]he

jury’s verdict is afforded great deference.” Bryant v. Compass Group USA Inc., 413 F.3d

471, 475 (5th Cir. 2005), cert. denied, 126 S. Ct. 1027 (2006).

       This court reviews evidentiary determinations for abuse of discretion. Thomas v.

Tex. Dep’t of Criminal Justice, 220 F.3d 389, 394 (5th Cir. 2000). This court also reviews a

jury’s award of mental anguish damages to determine if sufficient evidence supports the

award. See Williams v. Trader Publ’g Co., 218 F.3d 481, 484 (5th Cir. 2000).

                                      III. DISCUSSION

       On appeal, TDCJ argues that (1) the evidence was insufficient to support the jury’s

finding of gender discrimination; (2) the district court erred in its application of FED. R.

EVID. 403 and the hearsay rules to the EEOC’s investigative determination; and (3) the

jury’s mental anguish award is unsupported by the evidence.

A. Judgment as a matter of law


                                               4
       TDCJ argues that a Title VII plaintiff maintains the ultimate burden of proving

intentional discrimination and that Moss did not meet this burden. Moss counters that she

met her burden by offering prima facie evidence of discrimination and further evidence

of pretext, i.e., evidence from which a reasonable jury could infer that Moss’s violation of

TDCJ Rule 14B was not the true reason for Zeller’s decision to demote her.

       In a Title VII dispute in which the plaintiff argues pretext, “[e]vidence

demonstrating that the employer’s explanation is false or unworthy of credence, taken

together with the plaintiff’s prima facie case, is likely to support an inference of
                                                                                      3
discrimination even without further evidence of [the] defendant’s true motive.” Laxton

v. Gap, Inc., 333 F.3d 572, 578 (5th Cir. 2003) (citing Sandstad v. CB Richard Ellis, Inc., 309

F.3d 893, 897 (5th Cir. 2002)). “No further evidence of discriminatory animus is required

because ‘once the employer’s justification has been eliminated, discrimination may well

be the most likely alternative explanation . . . .’” Id. (quoting Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 147–48 (2000)). In certain “rare” situations, evidence

demonstrating pretext, together with a prima facie case, is insufficient to establish

discrimination. Id. at 578–79. These situations include: “(1) when the record conclusively

reveals some other, nondiscriminatory reason for the employer's decision, or (2) when the

plaintiff creates only a weak issue of fact as to whether the employer's reason was untrue,



       3
        Although this case falls under the McDonnell Douglass framework, after the case
goes to the jury, this court focuses not on the McDonnell Douglass framework but on
whether sufficient evidence exists to support the jury’s findings. See Bryant, 413 F.3d at
475–76.

                                              5
and there was abundant and uncontroverted evidence that no discrimination occurred.”

Id. (citing Russell v. McKinney Hosp. Venture, 235 F.3d 219, 223 (5th Cir. 2000)).

       Together with her prima facie case, Moss introduced evidence from which a

reasonable jury could conclude that Zeller’s true reason for the demotion was not the

violation of Rule 14B but rather unlawful gender discrimination. Along with Moss’s other

evidence, the jury could have inferred pretext from the severity of Moss’s punishment

compared with the lack of punishment of the supervising officer who was reported to
                                                                   4
Zeller to have violated Rule 14B by using the racial slur “wood.” The jury also could have

inferred that Zeller’s true reason for the demotion was gender discrimination based upon

Zeller’s testimony that he treated the male officer who referred to a Hispanic person as a

“wetback” more favorably than Moss merely because Moss’s violation occurred in an

“ongoing conversation.” In sum, Moss’s evidence is sufficient to support the jury’s findings
                                                             5
when the evidence is viewed favorably toward the verdict. See Laxton, 333 F.3d at 578–86



       4
        At trial, the parties presented conflicting evidence as to whether “wood” was or
was not a racial slur. Moss testified that “wood” was a racial slur, while Zeller testified
that it was merely prison slang. The testimony of Moss’s supervisor supports both
interpretations. Viewed favorably toward the verdict, the evidence indicated that the term
“wood” is a racial slur for white people used in prison settings.
       5
        TDCJ also contends that since TDCJ regional managers approved Zeller’s decision
without evidencing discriminatory motive, Moss’s demotion was not motivated by gender
discrimination. However, the record makes clear that Zeller made the demotion decision
and that, under TDCJ’s disciplinary rules, Zeller was the “Reprimanding Authority”
vested with responsibility by TDCJ to “discipline employees in accordance with [TDCJ
procedures].” Zeller’s action and authority together are sufficient to support liability under
Title VII. See Russell, 235 F.3d at 226.


                                              6
(analyzing evidence from which a reasonable jury could find pretext). See also West v.

Nabors Drilling USA, Inc., 330 F.3d 379, 387–90 (5th Cir. 2003) (discussing evidence from

which a reasonable jury could find that the proffered reason for the adverse employment

action was false); Russell, 235 F.3d at 224–25 (same).

       Moreover, the record does not present one of the rare instances in which evidence

of pretext is insufficient to establish discrimination. The evidence does not conclusively

reveal another nondiscriminatory reason for the “fairly severe punishment” of demotion,

and Moss has created more than a weak issue of fact. See Laxton, 333 F.3d at 585–86. See

also Russell, 235 F.3d at 223 n.4 (noting the Reeves mandate “not to substitute our

judgment for that of the jury”).

B. EEOC investigative determination

       An EEOC investigative determination of reasonable cause to believe that an

individual was demoted based on her sex is “removed from the rule against hearsay unless

circumstances indicate untrustworthiness.” Cortes v. Maxus Exploration Co., 977 F.2d 195,

201 (5th Cir. 1992). TDCJ, however, has put forth no evidence suggesting the determination

is untrustworthy. Moreover, while such determinations are subject to FED. R. EVID. 403, see

Cortes, 977 F.2d at 201, TDCJ likewise has offered no argument suggesting how the district

court abused its discretion in admitting the evidence under that rule. Accordingly, we hold

that the district court did not abuse its discretion in admitting the determination into

evidence.

C. Mental anguish jury award


                                             7
       This circuit has upheld mental anguish awards when the plaintiff’s own testimony

as to the extent and nature of the damages is the only evidence on the subject. See

Williams, 218 F.3d at 486 (holding that plaintiff’s testimony was sufficient to support the

jury’s verdict where plaintiff testified regarding her lack of sleep, weight loss, and new

smoking habit); Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1047 (5th Cir. 1998) (holding

that plaintiff’s testimony that she experienced loss of sleep, anxiety, and marital problems

was sufficient to support the district court’s mental anguish award). TDCJ contends that

evidence of Moss’s mental anguish was not sufficiently specific. However, Moss

testified—and another witness corroborated—that Moss suffered depression, ostracization

by her peers, and public humiliation as a result of her demotion. Under Williams and

Migis, this evidence is sufficient to support the jury’s award.

                                   IV. CONCLUSION

       The judgment of the district court is AFFIRMED.




                                             8
