Brune v. City of Jackson, MS

* 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this opinion should not be published and is not precedent except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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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 01-60803
__________________________
LINDA BRUNE,
Plaintiff-Appellee,
versus
CITY OF JACKSON, MISSISSIPPI
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
(3:00-CV-219)
___________________________________________________
July 17, 2002
Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM*:
Defendant-Appellant City of Jackson, Mississippi (“the City”)
appeals a judgment in favor of Plaintiff-Appellee Linda Brune for
violation of Title VII of the Civil Rights Act of 1964, codified at
42 U.S.C. § 2000e et seq. (“Title VII”). We affirm the judgment.
We review only the facts pertinent to the issues addressed in
this appeal. Brune, a white female, was employed by the City as a
deputy clerk, providing administrative support to the City Council

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1 There is no indication that Consuellia Michael was
interviewed by the FBI during its investigations of councilmen
Williams and Armstrong.
2
from October 1996 through August 1999. In March 1998, Brune and
other City employees were interviewed by the Federal Bureau of
Investigation (“FBI”) in connection with its investigation of
bribery charges against City Councilman Robert Williams. In May
1998, Brune was again interviewed by the FBI, this time in
connection with its investigation into extortion charges against
City Councilman Louis Armstrong.
Also in March 1998, Brune’s job category was reclassified, and
with the reclassification came an increase in salary. A black
female co-worker in the same job category as Brune, Consuellia
Michael, began to receive her increased pay in May 1998, but Brune
did not.1 Brune complained of this to several members of the City
Council, and wrote four memoranda to Councilman Armstrong, the
president of the City Council, requesting that she receive her
raise. In late July 1998, after threatening to file a writ of
mandamus against Armstrong, she finally began to receive her pay
increase, and received the back pay she was owed as well.
Late in March 1998, the City Council confirmed and pre-paid
the cost of Brune’s attendance at the forthcoming annual meeting of
the Mississippi Municipal Association (“MMA”) in Biloxi,
Mississippi. Attendance at the MMA meeting enables attendees to
earn “points” towards achieving the designation of certified

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2 No deputy clerk besides Brune was scheduled to attend the
MMA that year, so there was no similarly situated black deputy
clerk to whose treatment Brune’s could be compared.
3
municipal clerk, thereby advancing their careers. After Brune
cooperated in the FBI interviews that spring, Councilman Armstrong
canceled her reservation for the MMA. Eddie Jean Carr, the other
black female who had been interviewed by the FBI and whose
attendance at the MMA had been confirmed in March, was the City
Clerk, not a deputy clerk like Brune. It was generally understood
that the City Clerk always attends the annual meeting of the MMA.
In any event, Carr’s reservation was not canceled after her
interview with the FBI.2
In 1999, Brune resigned her position as deputy clerk,
allegedly because she could no longer tolerate the stress of
working in such a racially discriminatory environment. Before the
last day of her employment, Brune contacted the City’s Risk
Management Department concerning the continuation of her health
insurance benefits, but received no reply. Only after contacting
the manager of Risk Management a total of four times was she able
to obtain her COBRA notice, 72 days late. The jury heard
conflicting testimony on whether Brune suffered any damage from
this delay.
Brune filed suit against the City in March 2000, alleging
violations of 42 U.S.C. §§ 1981, 1983, 1985, Title VII, the First,
Fifth, and Fourteenth Amendments, and state law. The case was set

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for a jury trial in June 2001, but in May 2001, the district court
ruled on the City’s motion for summary judgment, granting it in
part and denying it in part. The district court granted summary
judgment to the City on Brune’s state law claims as well as on her
claims under 42 U.S.C. §§ 1981, 1983, and 1985, and the First,
Fifth and Fourteenth Amendments, noting that Brune had conceded
that summary judgment should be granted on all but the § 1981
claim, and that the § 1981 claim required a live § 1983 claim,
which Brune no longer had.
As for Brune’s Title VII claims, the district court granted
summary judgment to the City on the retaliation and constructive
discharge claims, holding that Brune had not engaged in a
“protected activity” under Title VII (as required in a retaliation
claim), and that Brune had not presented facts sufficient to show
that a reasonable person in her position would feel that she had no
choice but to resign (as required in a constructive discharge
claim). The district court denied summary judgment to the City
with respect to Brune’s Title VII race discrimination claim,
however, determining that there was a triable fact issue as to
whether the City had proffered legitimate, non-discriminatory
reasons for its treatment of Brune.
Shortly before trial, the district court permitted Brune to
add a hostile work environment claim against the City. After she
had presented her case in chief to the jury, however, the district
court granted the City’s motion for a directed verdict on Brune’s

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3 In her trial testimony, Brune stated that she sought
$250,000 in damages, $100,000 of which she ascribed to mental
anguish that she alleged to have endured while she was employed
as a deputy clerk for the City.
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hostile work environment claim, and submitted only the Title VII
discrimination claim to the jury. The jury found by a
preponderance of the evidence that the following complaints by
Brune did result from intentional racial discrimination: (1) She
was paid differently from Consuellia Michael, in that she received
her pay raise later than Michael did; (2) she was treated
differently from similarly situated black employees after being
interviewed by the FBI; (3) her authorization to attend the MMA was
canceled; and (4) her COBRA notice was delayed after she terminated
her employment with the City. Without itemizing the dollar amount,
the jury awarded Brune damages of $50,000.3
The City filed a motion that it titled a motion for judgment
notwithstanding the verdict, or in the alternative, for a new trial
or a remittitur. In support of the motion for judgment
notwithstanding the verdict, the City raised substantially the same
issues that it raises before us on appeal, all of which the
district court deemed to be without merit when it denied the City’s
motion for judgment notwithstanding the verdict. Further, the
district court found that there was “sufficient evidentiary basis
from the evidence presented at trial for a reasonable jury to find
for Brune with regard to both liability and damages in this case,”
and that the jury’s verdict was neither contrary to the great

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4 Logan v. Burgers Ozark Country Cured Hams Inc., 263 F.3d
447, 455 (5th Cir. 2001). The City’s designation of its motion
as a request for judgment notwithstanding the verdict is merely
a formal error. See Federal Rule of Civil Procedure 50, Advisory
Committee Notes (“If a motion is denominated a motion for
directed verdict or for judgment notwithstanding the verdict, the
party's error is merely formal. Such a motion should be treated
as a motion for judgment as a matter of law in accordance with
this rule.”).
5 Cozzo v. Tangipahoa Parish Council-President Government,
279 F.3d 273, 280 (5th Cir. 2002).
6 Logan, 263 F.3d at 455 (quoting Tyler v. RE/MAX Mountain
States, Inc., 232 F.3d 808, 812 (10th Cir. 2000)).
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weight of the evidence presented at trial nor the result of passion
and prejudice. Accordingly, the district court denied the City’s
motion for a new trial or a remittitur. The City filed a timely
notice of appeal from the district court’s orders.
We review de novo a district court’s denial of a motion for
judgment as a matter of law,4 but note that when the action has
been tried before a jury, such a motion is actually a challenge to
the legal sufficiency of the evidence supporting the jury’s
verdict,5 with the moving party entitled to judgment as a matter of
law “only if the evidence points but one way and is susceptible to
no reasonable inferences which may support the opposing party’s
position.”6 As for a district court’s denial of a motion for a new
trial, we will affirm that ruling unless the moving party makes a
“clear showing of an absolute absence of evidence to support the
jury’s verdict” and thereby indicates that “the trial court had
abused its discretion in refusing to find the jury’s verdict

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7 Lane v. R.A. Sims, Jr., Inc., 241 F.3d 439, 444 (5th Cir.
2001) (quoting Whitehead v. Food Max of Miss., Inc., 163 F.3d
265, 269 (5th Cir. 1998)).
8 The City also complains that the verdict was against the
overwhelming weight of the evidence and actually represented a
finding with respect to Brune’s dismissed claim of retaliation,
and that the judgment was excessive and against the great weight
of the evidence.
7
contrary to the great weight of the evidence.”7
The City presents three core complaints on appeal: (1) the
district court erred in permitting Brune’s hostile work environment
claim to go forward, with the result that prejudicial evidence
relating to that claim was presented to the jury and improperly
influenced its deliberations concerning the discrimination claim;
(2) the district court erred in predetermining that, if proved, the
specific claims submitted to the jury would constitute adverse
employment actions and allowing them to be presented to the jury as
such; and (3) Brune was allowed to have an all-white jury only
through improper means, including the use of a venire that was not
reflective of a cross-section of the Jackson, Mississippi
community, and the acceptance by the district court of
unsatisfactory race-neutral reasons proffered by Brune in response
to the City’s Batson challenges.8
We have reviewed the record on appeal, including in particular
the rulings of the district court and the jury’s answers to the
interrogatories, as well as the applicable law set forth by the
parties both in their briefs and at oral argument. As a result of

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this comprehensive review, we are not persuaded that any reversible
error occurred or that the judgment of the court instating the
jury’s verdict should be disturbed. Accordingly, the judgment of
the district court is, in all respects,
AFFIRMED.

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