                  UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT



                           No. 99-11194



                         YOLANDA N BROWN,

                                                 Plaintiff-Appellee,


                              VERSUS


                     RIO PETROLEUM, INC, ET AL

                                                           Defendants

                RIO PETROLEUM, INC; JOHN WALKER, JR

                                               Defendants-Appellants.




           Appeal from the United States District Court
                For the Northern District of Texas
                           (2:97-CV-440)
                          April 12, 2001
Before DUHÉ and PARKER, Circuit Judges and LINDSAY, District
Judge.*
PER CURIAM:**



  *
   District Judge of the Northern District of Texas, sitting by
designation.
  **
    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opinion should not be published and is not precedent except under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.

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       Defendants Rio Petroleum, Inc. and John Walker, Jr. appeal the

the district court’s denial of Defendants’ motions for judgment as

a matter of law, for new trial and for remittitur, as well as the

damages awarded by the jury to Plaintiff Yolanda N. Brown.               We

affirm.

                    I.   FACTS AND PROCEDURAL HISTORY

       Brown was employed by Rio Petroleum from January 1992, to

September 1996, to perform receptionist and clerical duties.            Rio

Petroleum is a small company in Amarillo, Texas, engaged in the

business of exploration, production, and sale of oil and natural

gas.     Brown was the only African-American in an office staff of

nine (and later in Brown’s tenure, ten) employees.         Brown received

raises    and   incentive   bonuses,   participated   in   company   social

functions, and enjoyed good relations with her supervisors and co-

workers at the beginning of her employment.

       Over time, her clerical job duties were assigned to other

employees and she was reassigned to perform janitorial and yard

maintenance tasks. She also suffered humiliations including having

mail repeatedly dropped on her from a second floor balcony, being

questioned about her and her children’s participation in Juneteenth

and Martin Luther King, Jr. Day celebrations, and being referred to

at work as “our little Black nanny.”1


  1
   Rio Petroleum argues that the comments about Brown’s choice to
celebrate certain holidays and the label “little Black nanny”
should not be weighed as evidence of racial bias because they were
“stray remarks.” A reasonable jury may have concluded that the

                                       2
       Brown was given a written separation notice in September 1996,

signed by Rio Petroleum Vice President Carol Pierce that stated:

            In your four years of employment with Rio, we
            have endeavored to have you perform various
            tasks.      However,  other   than   arranging
            birthday/party celebrations and attending
            receptionist activities during conference
            meetings, you failed to successfully perform
            and master tasks given you. These inabilities
            resulted in the transference of work and
            responsibilities to others.     Recall that I
            have had several conversations with you in the
            past regarding your job performance, and I
            have seen no improvement. Therefore, we must
            terminate     your    employment     effective
            immediately.

       Brown brought suit pursuant to Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. § 2000e (1994), alleging that

Rio Petroleum discriminated against her on the basis of race and

sex.    Brown also asserted causes of action against Rio Petroleum

President Barrett Pierce for sexual harassment and intentional

infliction of emotional distress, and against Rio Petroleum Vice


remarks concerning the celebrations indicated racial animus and
that the speakers (Walker and Barrett Pierce) exerted influence
over the decisionmaker, Carol Pierce. The remarks were therefore
circumstantial evidence of racial discrimination by Rio Petroleum
which the jury could consider. See generally Russell v. McKinney
Hosp. Venture, 235 F.3d 219, 2000 WL 1785541 at *5-6 (5th Cir.
2000)(explaining that Reeves v. Sanderson Plumbing Products, Inc.,
120 S. Ct. 2097 (2000) modified Fifth Circuit stray remark
jurisprudence so that remarks which evidence discriminatory animus
made by a speaker who has leverage or influence over the
decisionmaker may be considered circumstantial evidence of
discrimination by an employer). On the other hand, the “little
Black nanny” label was coined by a co-worker who did not exert such
influence at Rio Petroleum. We therefore agree that a co-worker’s
reference to Brown as a little Black nanny was a stray remark,
which did not evidence bias on the part of Rio Petroleum
decisionmakers.

                                  3
President John Walker, Jr. for assault and battery.

     The case was tried to a jury.       At the close of Brown’s case-

in-chief, the district court granted judgment as a matter of law to

Defendants on all claims except Brown’s allegation that she had

been subjected to disparate treatment on account of race with

regard   to   conditions   of    employment    other   than   pay   and   the

allegation that Walker had committed assault and battery against

her by dropping mail on her.          The jury returned a verdict in

Brown’s favor on the two remaining claims and awarded her $60,000

for mental anguish on her disparate treatment claim, as well as

$15,000 for mental anguish and $25,000 in exemplary damages on the

assault and battery claim against Walker. Defendants filed motions

for judgment as a matter of law or for new trial on Brown’s

remaining claims, which the district court denied.            The district

court granted in part and denied in part Defendants’ motion for

remittitur, reducing the jury verdict against the company to

$50,000, the applicable statutory cap.

                                II. ANALYSIS

A. Standard of review

     Rio Petroleum appeals the district court’s denial of its

motion for judgment as a matter of law, in which it alleged that

the trial evidence was not sufficient to support a verdict for

Brown on her disparate treatment claim.         We review that denial de

novo, Sharp v. City of Houston, 164 F.3d 923, 928 (5th Cir. 1999),



                                     4
considering all of the evidence in the record. Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097, 2110 (2000).

We view the evidence and all reasonable inferences in favor of the

non-movant;       if   reasonable      persons     could    differ      in     their

interpretation of the evidence, the motion should be denied.                     Id.

Only   if   the    facts   and   reasonable      inferences       are   such    that

reasonable jurors could not reach a contrary verdict may the court

properly grant such motion.         Id.

       Rio Petroleum moved, in the alternative, for new trial which

the district court also denied.           We affirm that denial unless the

district court abused its discretion in refusing to find that the

verdict is against the great weight of the evidence.                Whitehead v.

Food Max of Miss., Inc., 163 F.3d 265, 269 (5th Cir. 1998).

       Rio Petroleum also complains that, although the district court

granted its motion for remittitur, it erred in failing to remit the

damages awarded by the jury to a nominal sum.                     We review the

district court’s order of remittitur for abuse of discretion.                    See

Denton v. Morgan, 136 F.3d 1038, 1046 (5th Cir. 1998).

B. Disparate Treatment Claim

       Brown   alleged,    and   the    jury     found,    that   Rio   Petroleum

intentionally discriminated against her because of her race in the

conditions of her employment.           The district court instructed the

jury that Brown “must prove that Rio Petroleum considered her race

as a motivating factor in making one or more decisions concerning


                                        5
the conditions of her employment.”   The conditions of employment

which Brown alleged arose from intentional racial discrimination

included the assignment of job duties, a reprimand for making

personal phone calls, and failure to expeditiously file a worker’s

compensation claim.

     Brown had the burden of proving all the elements of a prima

facie case of discrimination.   The district court instructed the

jury that Brown must prove:

     1. That she was denied or deprived of conditions of
     employment;
     2.   That she was qualified to receive or retain the
     conditions of employment denied; and
     3. That the conditions of employment she was denied were
     instead given to other similarly situated employees who
     were not members of her protected class (African-
     American); and
     4. That Plaintiff’s race was a motivating factor in the
     decision to deny her the conditions of employment.

See St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 515 (1993).

     Rio Petroleum argues on appeal that Brown’s evidence did not

establish a prima facie case of disparate treatment concerning the

delay in filing her worker’s compensation claim.   That claim arose

from an on-the-job injury Brown sustained in 1995, when she was

involved in an automobile accident while running an errand for Rio

Petroleum.   Brown testified that she reported the injury to her

supervisors, who advised her to contact the auto insurance company

rather than filing a workers’ compensation claim. Brown raised the

issue again in September 1996, during her termination interview,

after which the claim was promptly filed. Rio Petroleum points out


                                6
that   the    record    contains       no    evidence       that   Brown’s    worker’s

compensation claim was treated differently than claims by similarly

situated non-minority co-workers.                 The trial testimony established

only that worker’s compensation claims by injured “pumpers” were

generally prepared and filed within a day.                    The pumpers were not

office workers and therefore not similarly situated to Brown.

Further, there was no evidence identifying the race of any injured

pumper.      The record supports Rio Petroleum’s contentions on both

counts.      That is, Brown did not proffer evidence that the pumpers

were similarly situated – in fact, there is undisputed evidence

that they were not similarly situated – nor that they were not

African-Americans.

       Rio   Petroleum       next    argues       that   Brown’s     claim   regarding

personal use of the phone did not involve actionable conduct on the

part of Rio Petroleum.              Brown testified that, while other non-

African-American clerical personnel were allowed personal phone

calls at work, she was singled out to be chastised for personal

phone use.      Rio Petroleum contends that when Brown’s supervisor

counseled      her    about    excessive         personal    phone    use    during    a

performance evaluation, it was not an employment action rising to

the level of Title VII scrutiny.                 Similarly, Rio Petroleum argues

that there was no evidence that the reassignment of job duties

resulted in any “detriment” to Brown’s job and therefore was not an

actionable employment decision.

       We    must    first    decide    if       Brown’s    allegations      amount   to

                                             7
discrimination with respect to the conditions of her employment, as

that term is used in 42 U.S.C. § 2000e-2(a)(1).                     Appellant’s

contention that Brown’s claims do not raise viable claims of

discrimination    under    Title   VII     is    bottomed    on   language     and

reasoning from cases involving retaliation claims under § 2000e-

3(a).   In that context, we have held that Title VII was designed to

address    ultimate   employment    decisions,       not    to    address   every

decision made by employers that arguably might have some tangential

effect upon those ultimate decisions.            See, e.g., Dollis v. Rubin,

77 F.3d 777, 781-82 (5th Cir. 1995).             We mentioned as examples of

ultimate employment decisions hiring, granting leave, discharging,

promoting, and compensating an employee. Id. Appellant’s argument

in this regard fails because the retaliation jurisprudence they

rely on is not on point; this appeal does not concern a retaliation

claim. Rather, Brown prevailed at trial on her allegation that the

conditions of her employment had been discriminatorily altered.

Brown contends, and Rio Petroleum conceded at oral argument, that

Title VII makes it unlawful to discriminate against an individual

with regard to the conditions of employment whether or not an

employer has made an ultimate employment decision on the basis of

race.     Verbal intimidation, ridicule, and insults may alone be

sufficiently   severe     or   pervasive    to    alter     the   conditions   of

employment and violate Title VII.           See DeAngelis v. El Paso Mun.

Police Officers Ass’n, 51 F.3d 591, 593 (5th Cir. 1995), citing



                                     8
Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993).                Brown’s

allegations that her job duties were reassigned in a discriminatory

manner and that she was denied the same use of the telephone for

personal calls allowed to non-African-American employees, taken as

a whole, state a viable Title VII claim of discrimination with

regard to     the    conditions    of   her   employment.      See    Burlington

Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998)(holding that

a Title VII claimant can prove her claim by establishing a tangible

employment action, that is, an employment action which “constitutes

a significant change in employment stauts, such as hiring, firing,

failing to     promote,    reassignment       with   significantly    different

responsibilities, or a decision causing a significant change in

benefits.”(emphsis added))

     Next we must determine whether the district court erred in

concluding    that     Brown   established       a   prima    facie    case   of

discrimination. Specifically, Rio Petroleum contends that there is

no evidence from which the jury could conclude that Brown was

qualified to perform the job duties that were reassigned to other

employees.     We address this issue along with Rio Petroleum’s

parallel argument: its proffered non-discriminatory reason for

reassigning Brown’s job duties is that Brown was “not adequately

performing her job duties.”

     First,    Rio     Petroleum    transferred      the    responsibility    of

completing the Texas Railroad Commission reports to a Caucasian


                                        9
employee hired after Brown.       Brown prepared and filed the reports

for approximately two years from the time she was initially hired.

In an effort to establish that Brown was not qualified to perform

that part of her job, Rio Petroleum relied on evidence that Brown

made errors on nineteen of the reports that she prepared. However,

the evidence did not show that the errors were serious or that, in

order to be qualified for the job, one must produce error-free

reports.   Brown’s training consisted only of a supervisor showing

her how to do the reports for the first two or three months.        Based

on her supervisors’ explicit assessment that she was satisfactorily

performing this function, Rio Petroleum gave her a raise of $50.00

a month and additional responsibility.      Over time, as she mastered

her assigned tasks, Rio Petroleum added responsibility for division

orders, geology files, and some accounting functions. Viewing this

evidence in the light most favorable to Brown, a rational jury

could   have   concluded   that    Brown   was   qualified    for   these

assignments, given that Rio Petroleum, rather than           disciplining

her, providing her with additional training or indicating in any

way that the quality of her work was unsatisfactory, continued to

add to her job responsibilities.

     In addition to transferring the Railroad Commission reports,

Brown’s responsibility for the land and well files was reassigned

to a subsequently hired Caucasian clerical worker.       Brown’s phone

duties were decreased, but not eliminated, when Rio Petroleum

installed an automated phone system.        In place of these various

                                    10
duties, Brown was required to water trees, even though there was a

sprinkler system in place.          She was required to sweep and clean the

basement and      wash   the    windows,     although   Rio   Petroleum    had a

janitorial service.         She was also given the responsibility of

caring for an infant when Rio Petroleum gave one of its other

clerical workers permission to bring her baby to work.               As a part

of the transferred duties, Rio Petroleum moved Brown’s workstation

from the front reception area to a desk faced toward the wall in

the corner of the file room, with no phone or typewriter.                 She was

told that she had continued responsibility for receptionist duties.

When she heard the phone ring, she had to get up and go to another

employee’s desk to answer it.                When visitors arrived, she was

summoned to the front to greet them and take care of any related

receptionist duties.

      Rio Petroleum cites evidence that Brown made errors in filing,

in   a   bank    deposit,      in   taking    down   phone    messages    and   in

distributing incoming faxes for the proposition that she was not

qualified for the responsibilities that were transferred to other

employees.      While Brown did not deny making some errors, there is

no evidence that Rio Petroleum considered Brown unqualified for

receptionist duties.        Indeed, Rio Petroleum even acknowledged in

her termination letter that she performed that job satisfactorily.

Finally, the jury was free to disbelieve Rio Petroleum’s contention

that the files were transferred because they were “a mess.”

      Based on the foregoing, we conclude that the record contained

                                        11
sufficient evidence to support the jury verdict for Brown on her

claims of disparate treatment on the basis of reassigned job

duties.    Brown was the only African-American employee in Rio

Petroleum’s office and the only one subjected to the demeaning

employment conditions described at trial.    Moreover, a jury was

free to reject Rio Petroleum’s contention that Brown was simply an

incompetent employee, particularly in light of evidence that she

was given raises and additional duties during the early days of her

employment after her supervisor concluded that she had mastered her

original responsibilities.   Therefore a reasonable jury could have

concluded that race was a cause for Rio Petroleum’s treatment of

Brown.    In sum, the evidence was sufficient to establish Brown’s

prima facie case and to rebut Rio Petroleum’s proffered non-

discriminatory reasons for its decisions.    Reeves, 530 U.S. 923

(2000).   Therefore, the district court did not err in denying Rio

Petroleum’s motion for judgment as a matter of law.

C. Challenge to the Amount of Damages Awarded by the Jury

      Rio Petroleum and Walker2 contend that the district court

abused its discretion in failing to remit the jury award of damages

to a nominal amount.

      Rio Petroleum complains that the district court incorrectly

stated in its remittitur order that “[trial] testimony established

that Appellee was subjected to an offensive act of a sexual nature

  2
   On appeal, Walker contests the damages awarded, but not his
liability on Brown’s assault and battery claim.

                                12
by Defendant Barrett W. Pierce, then President of Rio Petroleum,

Inc.”   Rio Petroleum argues that they chose to leave the evidence

of   Pierce’s    misconduct    unchallenged      after   the   district   court

granted judgment as a matter of law on Brown’s sexual harassment

claim because that was the only claim to which it was relevant.

The record does not support Rio Petroleum’s argument.                     Brown

specifically testified that Pierce singled her out for unwelcome

sexual advances because she was African-American and that he did

not subject her Caucasian co-workers to the same treatment because

he believed that African-American females are “prostitutes” or

“easy.” Therefore, the district court did not err in crediting the

uncontradicted evidence of Pierce’s race-based sexual misconduct in

evaluating the record for purposes of remittitur.

      Rio    Petroleum   and    Walker    next    contend      that   there   is

insufficient evidence to support the jury’s award of damages to

Brown for emotional distress because she did not show a sufficient

causal connection between the statutory violation and the alleged

injury.     See Gore v. Turner, 563 F.2d 159, 164 (5th Cir. 1977).

Further, defendants contend that the evidence did not show the

specific nature and extent of the emotional harm caused by the

violation.      See Carey v. Piphus, 435 U.S. 247, 255-56 (1978).

      In proving mental damages a claimant’s testimony alone may not

be sufficient to support anything more than a nominal damage award.

Brady v. Fort Bend County, 145 F.3d 691, 718 (5th Cir. 1998).

Corroborating testimony or medical or psychological evidence may be

                                     13
necessary to meet the specificity requirements for establishing

emotional distress damages.        Id.    “Emotional harm may manifest

itself, for example, as sleeplessness, anxiety, stress, depression,

marital strain,3 humiliation, emotional distress, loss of self

esteem, excessive fatigue, or a nervous breakdown.” Id. “Physical

manifestations    of   emotional    harm    may   consist   of     ulcers,

gastrointestinal disorders, hair loss or headaches.”        Id.    Brown’s

testimony   included   her   subjective    emotional   responses   to   the

various incidents, as well as a description of her inability to

trust or have any kind of intimacy with any men as a result of her

ordeal.     She testified that she took classes to deal with the

stress.   Brown’s two grown daughters also testified, corroborating

and expanding the evidence that Brown’s work at Rio Petroleum

resulted in stress, weight loss, graying hair and anxiety.               In

addition, the jury was able to observe Brown when she broke down on

the witness stand while testifying about the mail-drop assaults.

Brown testified that Walker would call out to her from an upper

balcony, and when she looked up, he would throw the mail down on

her, calling out “air mail,” laughing and hitting her in the face.

This activity continued, even after she specifically asked him to

stop.     She testified that it was degrading, especially on the

occasions when he did it in front of strangers or in front of her

  3
   Brown’s marriage ended in divorce during her employment at Rio
Petroleum.   However, because she did not attribute her marital
stress to her problems at work, we do not consider that in
determining the sufficiency of the evidence on damages.

                                    14
daughter.   We conclude that the evidence in this record supports

the jury’s award of compensatory and punitive damages based on Rio

Petroleum’s intentional discrimination in violation of Title VII

and the assault and battery by Walker.

                            CONCLUSION

     Based on the foregoing, we affirm the judgment for Brown.

AFFIRMED.




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