Brown v. Rio Petroleum Inc, et al

*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opinion should not be published and is not precedent except under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.
1
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:**

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1Rio 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
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

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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
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

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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),

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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

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6
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

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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

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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

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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

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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

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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

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2On appeal, Walker contests the damages awarded, but not his
liability on Brown’s assault and battery claim.
12
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

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13
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

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3Brown’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
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

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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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