Fentroy v. Dillard TX Oprt Ltd

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-20552
______________________
KATHY FENTROY,
Plaintiff - Appellee - Cross Appellant,
versus
DILLARD TEXAS OPERATING LIMITED PARTNERSHIP; ET AL
Defendants
DILLARD TEXAS OPERATING LIMITED PARTNERSHIP
Defendant - Appellant - Cross Appellee.
____________________
No. 00-20990
____________________
KATHY FENTROY,
Plaintiff - Appellee,
versus
DILLARD TEXAS OPERATING LIMITED PARTNERSHIP; ET AL
Defendants,
DILLARD TEXAS OPERATING LIMITED PARTNERSHIP
Defendant - Appellant.
_________________________________________________________________
Appeals from the United States District Court for the
Southern District of Texas, Houston
_________________________________________________________________
November 8, 2001
Before DAVIS and JONES, Circuit Judges, and PRADO,1 District
1
District Judge of the Western District of Texas, sitting
by designation.
1
Judge.
PER CURIAM:2
This appeal arises from Kathy Fentroy’s lawsuit against her
former employer, Dillard’s Texas Operating Limited Partnership
(Dillard’s), and Fentroy’s former supervisor, Harry Williams.
Fentroy initially sued Dillard’s and Williams for employment
discrimination based on race and disability, intentional
infliction of emotional distress, and failure to comply with the
notice provisions of the Family and Medical Leave Act. The
district court granted summary judgment on most of these claims,
and for Williams, but determined that Fentroy had raised issues
of material fact regarding her Title VII claim. Fentroy’s
complaint described conduct amounting to disparate treatment on
the basis of race, and alleged that the conduct subjected her to
a hostile work environment. Although Fentroy’s complaint was
somewhat confusing, the district court characterized Fentroy’s
Title VII claim as a hostile work environment claim. The case
proceeded to trial against Dillard’s on that theory–i.e., hostile
work environment.
The jury found that Dillard’s had subjected Fentroy to a
hostile work environment on account of her race, and awarded
Fentroy $24,000.00 in compensatory damages. The jury also found
2
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent under the
limited circumstances set forth in 5TH CIR. R. 47.5.4.
2
that Dillard’s acted with malice or reckless indifference to
Fentroy’s federally-protected rights, and awarded Fentroy
$72,000.00 in punitive damages. After entering a judgment
consistent with the jury’s verdict, the district court acted on
Dillard’s motion for judgment as a matter of law, and set aside
the punitive damages award. Dillard’s then filed a notice of
appeal to challenge the jury’s liability finding and the
compensatory damages award.3 Fentroy also filed a notice of
appeal to challenge the setting-aside of the punitive damages
award.4 This opinion considers both appeals.
Dillard’s Appeal
Dillard’s presents eight issues for review. This court,
however, need only consider one issue to resolve Dillard’s
appeal–that is, whether the district court erred in failing to
grant Dillard’s motion for judgment as a matter of law as to the
sufficiency of the evidence to support the jury’s finding of
liability for a hostile work environment.
This court reviews the district court’s denial of a motion
for judgment as a matter of law under the same standard that the
district court uses in considering the motion at trial. See
Conkling v. Turner, 18 F.3d 1285, 1300 (5th Cir. 1994). Judgment
as a matter of law is proper if after a party has been fully
3
Appeal No. 00-20552 applies to Dillard’s challenge.
4
Appeal No. 00-20990 applies to Fentroy’s challenge.
3
heard by the jury on a given issue, "there is no legally
sufficient evidentiary basis for a reasonable jury to have found
for that party with respect to that issue." FED. R. CIV. P.
50(a). In evaluating the motion, the district court must view
the entire trial record in the light most favorable to the
non-movant, drawing all factual inferences in favor of the
non-moving party, and leaving credibility determinations, the
weighing of the evidence, and the drawing of legitimate
inferences from the facts to the jury. See Conkling, 18 F.3d at
1300. “The ‘decision to grant a directed verdict . . . is not a
matter of discretion, but a conclusion of law based upon a
finding that there is insufficient evidence to create a fact
question for the jury.’" Id. at 300-01 (citations omitted).
Consequently, this court must determine whether sufficient
evidence was presented during trial to permit a reasonable jury
to find for Fentroy on the hostile work environment question.
To prove that she was subjected to a racially hostile work
environment, Fentroy was required to prove:(1) that she belongs
to a protected class, (2) that she was subject to unwelcome
racial harassment, (3) that the harassment was based on race, (4)
that the harassment affected a "term, condition, or privilege" of
employment, and (5) that Dillard’s knew or should have known of
the harassment and failed to take prompt remedial action. See
Shepherd v. Comptroller of Pub. Accounts of State of Tex.,168
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F.3d 871, 873 (5th Cir. 1999). In addition, Fentroy had to show:
(1) racially discriminatory intimidation, ridicule and insults,
which were (2) sufficiently severe or pervasive that they (3)
altered the conditions of employment and (4) created an abusive
working environment. See DeAngelis v. El Paso Mun. Police
Officers Ass'n, 51 F.3d 591, 594 (5th Cir. 1995).
Whether an environment is "hostile" or "abusive" is
determined by looking at all the circumstances,
including the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or
humiliating, or a mere offensive utterance, and whether
it unreasonably interferes with an employee's work
performance. To be actionable, the challenged conduct
must be both objectively offensive, meaning that a
reasonable person would find it hostile and abusive,
and subjectively offensive, meaning that the victim
perceived it to be so.
Shepherd, 168 F.3d at 874. As a result, this court must review
the evidence in the light most favorable to Fentroy to determine
whether Fentroy met her burden.
Fentroy based her employment discrimination claim upon a
chronology of incidents in which she contends she was treated
differently from her white co-workers. These incidents allegedly
began in 1989 and continued until the end of Fentroy’s employment
in 1996. Although many of these incidents occurred well outside
the 300-days limitations period that applies to an employment
discrimination case, the incidents simply do not support a
hostile work environment claim even when viewed in the light most
favorable to Fentroy.
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For example, Fentroy testified that she served as an Area
Sales Manager (ASM) for Dillard’s Woodlands store. She described
how she played an instrumental role in opening the new store in
September 1994. Fentroy explained that in January 1995, the
store conducted an inventory and that her department had a big
shortage. Fentroy testified that she was counseled regarding the
shortage, and that she felt that she was given an ultimatum to
turn the inventory around or that she would be terminated or
moved to another position. Although Fentroy stated that other
ASMs were counseled for shortages in their departments, she
asserted that Williams pressured her about improving the
inventory in her department. Fentroy also testified that she was
disciplined more harshly than other ASMs for inventory shortages.
She asserted that even though she had a good inventory the
following July, store managers criticized her even more harshly
than before. Fentroy opined that her treatment was due to her
race—that is, because she is black.
Fentroy also explained that after being on medical leave for
over twelve weeks, she was demoted upon her return and reassigned
as a sales associate. She complained that white associates and
managers who returned from medical leave were not demoted. To
support this position, Fentroy used company documents she
obtained from Dillard’s during discovery to demonstrate that
white employees were permitted to return from medical leave and
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return to work in the same position they held prior to medical
leave.
Fentroy also asserted that lesser qualified white employees
were promoted and that she was not promoted because she is black.
Fentroy used discovery documents to demonstrate that white
employees were promoted and received bigger pay raises than she
did. Fentroy attributed this treatment to her race.
Denine Ingram, a black individual who worked at the store
during Fentroy’s employment, testified that the store’s
operations manager told her to hire employees to reflect the
store’s community. Ingram, an ASM at the time, stated that the
store’s community was mostly Caucasian, and that the operations
manager had refused to hire a qualified black applicant that she
recommended.
Sharon Green, a sales associate in Fentroy’s department,
testified that the January 1995 inventory showed almost a half
million dollars in shortage. Green speculated that the
construction workers that were still working in the store took
much of the merchandise reflected by the shortage.
Felicia Tillery, a former employee, testified that the
majority of black applicants she recommended for third interviews
were not selected for employment. Tillery explained that she
arrived at the Woodlands store a few months after it opened, and
observed that Fentroy was more scrutinized than other ASMs. She
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described an incident in which she contended Williams told her
that Fentroy was unfit to be an ASM, and that Williams told her
to watch Fentroy after she returned from medical leave. Tillery
also stated that the operations manager told her to place
applications from black applicants aside, and that the store must
hire sales associates that fit the community. Tillery also
stated that Williams told her that he did not what any more black
employees because it made the store look dingy, and that he
expressed unhappiness with Fentroy when he walked through the
store prior to an inventory.
The testimony described above is characterized by complaints
of disparate treatment—that is, that Fentroy was treated less
favorably than other employees because she is black. The essence
of a disparate treatment claim is different treatment. Disparate
treatment occurs when “[t]he employer simply treats some people
less favorably than others because of their race.” Teamsters v.
United States, 431 U.S. 324, 335 n.15. When viewed in the light
most favorable to Fentroy, Fentroy showed that she received
smaller raises than white employees, that she was not permitted
to return to her old position when she returned from medical
leave even though white employees were permitted to return to
their positions, and that white employees were promoted and that
she was not. In other words, Fentroy presented evidence that
Dillard’s treated her differently than white employees. Although
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this evidence may support a jury verdict for a disparate-
treatment claim, the jury was not asked whether Fentroy was
subjected to disparate treatment because of her race. Instead,
the jury was asked whether Dillard’s “subjected Ms. Fentroy to a
hostile or abusive work environment on account of her race?” The
evidence discussed above does not support this question.
Notably, no evidence exists that Fentroy was subjected to
racially discriminatory intimidation, ridicule or insult. No
evidence indicates that Fentroy was the subject of racial
harassment. Even Tillery, who was arguably the most damaging
witness for Fentroy, testified that she was not aware of anyone
making any remarks about Fentroy’s race, and that she did not
know of any facts that suggested that Williams wanted Fentroy
gone because she was African American. Without evidence of
racial harassment, there is no evidence to support the jury’s
verdict. As a result, the district court erred by denying
Dillard’s motion for judgment as a matter of law.
Fentroy’s Appeal
Fentroy appealed the district court’s judgment setting aside
the jury’s punitive damages award. This court, however, has
determined that no evidence exists to support the jury’s
liability finding. Without a finding of liability, no basis
exists for a damages award. As a result, the district court’s
amended judgment awarding compensatory damages must be reversed.
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Conclusion
Having determined that no evidence exists to support the
jury’s liability finding, and that the district court erred by
denying Dillard’s motion for judgment as a matter of law, this
court must reverse the district court’s judgment and render
judgment as a matter of law in favor of Dillard’s. See Krystek
v. Univ. of S. Miss., 164 F.3d 251, 258 (5th Cir. 1999).
Although arguably Fentroy may have been entitled to a new trial
for a disparate impact claim, Fentroy never challenged the
district court’s summary judgment order. As a result, she waived
the opportunity to re-try her case on a disparate impact theory.
Accordingly, this court shall REVERSE the district court’s
amended judgment, signed on May 23, 2000, and RENDER judgment for
Dillard’s.
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