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Pearl L. Johnson v. Earl Watkins

March 21, 2011


The opinion of the court was delivered by: Daniel P. Jordan III United States District Judge


This employment dispute is before the Court on Defendant Jackson Public Schools District's (JPS) Motion for Judgment as a Matter of Law (JMOL) [125] and Motion for New Trial [126]. Having fully considered the parties' submissions and the applicable authority, the Court concludes that JPS is entitled to JMOL on damages. All other relief is denied.

I. Facts/Procedural History

This matter has a long and bitter history that will not be repeated in full. Briefly, JPS hired Plaintiff Pearl Johnson as a literacy coach at Rowan Middle School. During her brief tenure in this position, Johnson claims that she was sexually harassed by Principal Tony Winters, and that Winters and others retaliated against her for complaining of the alleged harassment. In May 2009, this Court partially granted JPS's Motion for Summary Judgment [44] and dismissed Johnson's sexual-harassment claim along with her individual-liability claims against Winters and JPS Superintendent Earl Watkins. Order [65] May 29, 2009. That Order provided a more detailed recitation of facts and is herein incorporated. Johnson's Title VII retaliation claim survived Defendants' Motion and a subsequent Motion for Reconsideration [66] because the issue was not argued in light of Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006). The retaliation claim was then set for trial.

Johnson's counsel withdrew after responding to the initial summary-judgment Motion, leaving Johnson to represent herself. From that date, the case has been arduous and extraordinarily time consuming requiring frequent assistance from the Court. As the matter progressed, it became apparent that Johnson would require some assistance, and in an effort to reduce anticipated challenges at trial, the Court appointed stand-by counsel. Although stand-by counsel performed admirably, Johnson represented herself, and the jury heard a number of improper statements before returning a $50,000 verdict in her favor. The trial lasted four days.

In July 2010, JPS renewed its pre-verdict Motion for JMOL and alternatively sought a new trial. After numerous extensions and other post-trial motions and issues, Johnson filed her Response [165] on February 28, 2011, although it could not be docketed until March 4, 2011, because Johnson accidentally shuffled her papers in the clerk's office and did not immediately return to correct them.*fn1 The Response contained more than thirty exhibits and other materials that were available but not offered at trial. The Court therefore denied Plaintiff's Motion [166] to include these materials and has not considered Johnson's references to them. The Response also includes new factual assertions that are not supported by the record evidence (or even by the stricken exhibits). These facts were ignored. After exhaustive review of the record and the parties' submissions, the Court is prepared to rule.

II. Analysis

A. JMOL "Under Rule 50, a court should render judgment as a matter of law when 'a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149 (2000) (quoting Fed. R. Civ. P. 50(a)) (other citations omitted). The trial court must "review all of the evidence in the record. . . . In doing so, however, the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Id. at 150 (citations omitted). "Thus, although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe." Id. at 151 (citation omitted). The Court "'will not disturb the jury's verdict unless, considering the evidence in the light most favorable to [the plaintiff], the facts and inferences point so overwhelmingly to [the defendant] that reasonable jurors could not have arrived at a verdict except in [its] favor.'" Streber v. Hunter, 221 F.3d 701, 721 (5th Cir. 2000) (quoting Douglas v. DynMcDermott Petroleum Operations Co., 144 F.3d 364, 369 (5th Cir. 1998)).

Title VII makes it "an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice . . . or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under" Title VII. 42 U.S.C. § 2000e-3(a) (2006). "There are three elements to a prima facie case of retaliation under Title VII: (1) that the plaintiff engaged in activity protected by Title VII, (2) that an adverse employment action occurred, and (3) that a causal link existed between the protected activity and the adverse action." Raggs v. Miss. Power & Light Co., 278 F.3d 463, 471 (5th Cir. 2002) (citation omitted). JPS concedes that Johnson participated in a protected activity but denies she suffered an adverse employment action. JPS also challenges whether Johnson proved a causal connection between the alleged adverse action and her damages, as well as the reasonableness of her damages.

1. Materially Adverse Employment Actions

Johnson testified regarding a number of incidents that occurred during her tenure at Rowan Middle School. Many of the allegations related to petty slights and disagreements with Winters, such as his unwelcome attempt to give Johnson a Christmas card. The parties now dispute the following as alleged acts of retaliation: (1) Winters's alleged assault in December 2006; (2) alleged denial of training in January 2007; (3) alleged denial of privilege to make unannounced visits to classrooms in February 2007; (4) alleged criticism at coaches meeting in February 2007; (4) criticism in February 2007 over changing a bulletin board; (5) alleged comments when she was ill on March 1, 2007; (6) alleged refusal to convert personal-leave days into sick-leave days at the end of March 2007; (7) May 2007 denial of opportunity to present "Congeniality Awards" to students at an award ceremony; (8) a transfer from Rowan Middle School to Brown Elementary School in May 2007; and (9) alleged denial of opportunity to make presentations to teachers at some undetermined date.

To begin, it is axiomatic that an alleged retaliatory act must occur after an employee's participation in a protected activity. Here, Plaintiff filed her Charge of Discrimination after all of the above referenced incidents. But "an informal complaint may constitute protected activity for purposes of retaliation claims." Casna v. City of Loves Park, 574 F.3d 420, 427 (5th Cir. 2009).

And Johnson testified that she began complaining to her superiors in October or November 2006. Def.'s Mot. [125] Ex. A, Johnson Test. 103. With the exception of the failure to train allegation, discussed below, the evidence viewed in a light most favorable to the verdict suggests that the disputed incidents occurred after the protected activity.

The main question is whether the alleged incidents constitute materially adverse employment actions.

To constitute prohibited retaliation, an employment action must be "materially adverse," one that would "dissuade[] a reasonable worker from making or supporting a charge of discrimination." The purpose of this objective standard is "to separate significant from trivial harms" and "filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing."

Stewart v. Miss. Transp. Com'n, 586 F.3d 321, 331 (5th Cir. 2009) (alteration in original) (quoting White, 548 U.S. at 68). The "significance of any given act of retaliation will often depend upon the particular circumstances. Context matters." White, 548 U.S. at 69. Although this determination is often a question of fact, the Fifth Circuit Court of Appeals has "frequently" decided it as a matter of law. Magiera v. City of Dallas, 389 F. App'x 433, 437 n.3 (5th Cir. 2010) (citation omitted).

Numerous Fifth Circuit decisions have found as a matter of law that incidents similar to these fall short of establishing a materially adverse employment action. For example, in Stewart, the following acts were not sufficient to create a triable issue: (1) "personal items were taken from [Plaintiff's] desk"; (2) "the locks on [Plaintiff's] office had been changed and she was not allowed to close her office door"; and (3) "[Plaintiff] was chastised by superiors and ostracized by co-workers." 586 F.3d at 331--32 (holding that such claims "fall into the category of 'petty slights, minor annoyances, and simple lack of good manners'") (citing White, 548 U.S. at 69). The court further found that in the context of the evidence, even the placement of the plaintiff on administrative leave for three weeks, and reassigning her upon return to "a new supervisor and given a heavier workload," did not present a materially adverse employment action because the plaintiff "suffered no adverse impact." Id. at 332.

Similarly, in Peace v. Harvey, the court found as a matter of law that the following constituted mere petty slights or minor annoyances:

[Plaintiff] received a note detailing leave approval procedures from the Deputy Chief of Staff; she was not provided a designated seat at a ceremony for her departing general; she was assigned 'menial and degrading work' when told to work on security files and other "non-critical" tasks; she was told she could no longer park in her assigned space; and, three days before her retirement date, a superior yelled at her and told her to move out of her office. 207 F. App'x 366, 368--69 (5th Cir. 2006) (finding "these incidents are either unsupported or so 'trivial' as to fail the Burlington Northern standard."). So too, the Magiera court found that the following actions did not constitute materially adverse employment action:

(1) [Plaintiff's] supervisors sent her home from work after she requested a control number; (2) other officers "clicked" her on the radio and refused to partner with her; (3) Internal Affairs investigated complaints lodged against her with heightened scrutiny; (4) she was treated more harshly in interviews and denied lateral transfers; (5) she was denied overtime assignments; and (6) she was denied the opportunity to serve as an FTO. 389 F. App'x at 437; see also Mitchell v. Snow, 326 F. App'x 852, 856 (5th Cir. 2009) (affirming district court's finding that lower-than-expected employment review "would not have dissuaded a reasonable employee from asserting discrimination"); King v. Louisiana, 294 F. App'x. 77, 85 (5th Cir. 2008) (holding that "allegations of unpleasant work meetings, verbal reprimands, improper work requests and unfair treatment do not constitute adverse employment actions as . . retaliation") (citations omitted); Grice v. FMC Techs., Inc., 216 F. App'x 401, 407 (5th Cir. 2007) (holding that unjustified reprimands are considered "trivial" and not materially adverse in the retaliation context); DeHart v. Baker Hughes Oilfield Operations, Inc., 214 F. App'x 437, 442 (5th Cir. 2007) (holding that a written disciplinary warning for insubordination and being argumentative would not have "dissuaded a reasonable worker from making or supporting a charge of discrimination") (citation omitted).

In the present case, many of the disputed incidents, even assuming they occurred as Johnson described them, would be nothing more than petty slights that would not dissuade a reasonable worker from making a complaint. In fact, none of them had that effect on Johnson-she filed her Charge of Discrimination after the final disputed incident. See DeHart, 214 F. App'x at 442 (holding that reprimand would not dissuade a reasonable employee from complaining "given that several weeks later . . . a charge was filed").

But as discussed below, JMOL is denied on liability because a reasonable jury could find that Johnson's transfer was a materially adverse employment action. In terms of liability, the analysis could end with consideration of the transfer. But the Court will examine each alleged act because it has also concluded that Johnson presented no evidence of her injuries after March 1, 2007, and none of the acts occurring before that date were materially adverse.

a. Supervisor's Alleged Assault

Johnson testified that in December 2006, Winters-her supervisor and the alleged harasser in the dismissed sexual harassment claim-was speaking to her at a meeting with others and as he made his points, he "struck me on the hand." Johnson Test. 32. Later, she testified that under her "understanding of assault, if anybody touches someone without their permission, it is an assault. And Mr. Winters assaulted me." Id. at 34. One of the participants in the meeting, Dorothy Huell-Foster, was asked whether Winters struck Johnson, and she responded, "Absolutely not." Pl.'s Resp. [165] Ex. 37, Huell-Foster Test. 7. Winters likewise denied the incident. Winters Test. 8. But viewed in a light most favorable to Johnson, the Court assumes Winters "struck" Johnson's hand, although the severity is not clear.

Johnson has the burden of proving that this was a materially adverse employment action. As described, the incident was a literal "slap on the wrist." The legal question is whether such conduct would dissuade a reasonable employee from making a complaint. White, 548 U.S. at 69. No reasonable jury could conclude that it would. In fact, it did not dissuade Johnson, who made a formal EEOC charge months after this occurred. See DeHart, 214 F. App'x at 442 (finding that action was not materially adverse in part because it did not deter the plaintiff's subsequent protected activity). Instead, the conduct falls "into the category of petty slights, minor annoyances, and simple lack of good manners that the Supreme Court has recognized are not actionable retaliatory conduct. Title VII 'does not set forth a general civility code for the American workplace." Stewart, 586 F.3d at 332 (quoting White, 548 U.S. at 68). The Court finds as a matter of law that this incident was not materially adverse.

b. Training

Johnson contends that JPS refused to send her to "CORE" training. The training consisted of 3 one-day programs, and the record is undisputed that Johnson arrived at Rowan Middle School after the first two days had been completed. Johnson testified that she was told that because she "missed the other two trainings, that it was too late for [her] to have those trainings done." Johnson Test. 150. Johnson then offered Exhibit P-61 as proof of that the training was conducted and that she was wrongfully denied the right to attend. But P-61 is a letter to another teacher announcing "Day 3 of CORE training." Id.

Another problem is that Johnson never established when exactly the decision to deny CORE training occurred and whether it was after she engaged in a protected activity. And even when viewed in a light most favorable to Johnson, she was denied a one-day training session, but she failed to offer evidence demonstrating how this lack of training affected her salary or any other aspect of her position. According to Johnson, she requested the training "simply because it would have made me a better practitioner." Id. at 19. The Fifth Circuit Court of Appeals ruled that a similar claim of denied training was not material as a matter of law. See Earle v. Aramark Corp., 247 F. App'x 519, 524 (5th Cir. 2007) (finding the following actions were not materially adverse: excluding plaintiff from a training lunch; subjecting her to disciplinary write-ups; and micro-managing her performance). So too, this incident was not materially adverse.

c. Denied Opportunity to Make Unannounced Visits

Johnson contends that the following e-mail from an assistant principal was a retaliatory effort to preclude her from making unannounced visits to classrooms:

This is just a follow-up note for you all. Make sure that all correspondence is carried out via e-mail. That means requests for modeling sessions, conferences, meetings, suggestions, implementation strategies, et cetera. This is a vital element to ensuring that all that we are required to do is known by all parties. Thank you for your assistance with completing this task.

Ex. P-55 (emphasis added). Assuming that the e-mail was directed exclusively to Johnson and in fact precluded unannounced visits, the action has no greater potential to dissuade than actions such as the "menial and degrading work" assigned in Peace, 207 F. App'x at 368--69.

d. Criticism at Coaches Meeting

According to Johnson, Winters harshly criticized her at a coaches meeting. But she also testified that Winters made the comments to the entire group without naming Johnson. Johnson Test. 19. She believes Winters was speaking to her because "each time he spoke, he would look up at me and look down and look up at me." Id. Subjective beliefs of discrimination are not sufficient proof. Evans v. Collins, 9 F.3d 1546, at *2 (5th Cir. 1993) (unpublished table decision). Plus, even if Winters directly addressed Johnson, it would be no more actionable than being "chastised by superiors and ostracized by co-workers" as in Stewart. 586 F.3d at 332; see also DeHart, 214 F. App'x at 442 (holding that written disciplinary warning for insubordination and being argumentative not materially adverse).

e. Negative Reviews

While her reviews were not what she hoped, Johnson continued to receive at least some positive feedback after she engaged in protected activity. The only performance review in the record came after the protected activity, and it gave Johnson the highest or next-highest rating in all but one reviewed area. Ex. P-18 (reflecting that Johnson received one average rating related to organizational skills). In any event, the Fifth Circuit has held that unjustified reprimands are considered "trivial" and not materially adverse in the retaliation context. Grice, 216 F. App'x at 407; see also Mitchell, 326 F. App'x at 856 (holding that lower-than-expected employment review is not materially adverse).

f. Bulletin Board Problems

Johnson contends that Winters twice retaliated against her for problems with bulletin boards in the school. The first incident occurred February 2, 2007, when the materials of an educational bulletin board were removed shortly before a district inspection. By all accounts, Winters was very upset that the board had been taken down. Johnson called co-worker Mary Rankin Henry to testify about the issue. According to Rankin-Henry, Winters first blamed her and yelled at her in front of her students. Rankin-Henry Test. 16. Rankin-Henry felt like she was being "chastised" and was later "interrogat[ed]" by Winters in his office. Id. at 16--17. Rankin-Henry further stated that this was the angriest Winters had ever gotten with her although "[w]e had had a number of disagreements. You know, lack of communication. And he would get upset." Id. at 18. This testimony essentially creates an unrebutted record that the incident was not causally related to the protected activity. When Winters learned that Johnson was involved, he sent a security guard for her and then interrogated and allegedly threatened her job. But when Johnson explained that Winters had given her permission to change the board several months before, he retreated and apologized. Johnson Test. 23. This incident would not have dissuaded a reasonable employee and did not dissuade Johnson. See Stewart, 586 F.3d at 332; DeHart, 214 F. App'x at 442.

The second board incident occurred March 1, 2007. On that date, Johnson became ill and needed to leave work. While standing in the hall, she heard Winters state in her presence, "Peggy said that the literacy board is wrong. The word CORE is wrong and it needs to be changed." Johnson Test. 59.*fn2 Even assuming Winters said what Johnson claims and that he directed it to her, the comment that the word "CORE" was wrong on a literacy board and would need correction is more than reasonable. The conduct falls far short of being a materially adverse employment action. See Stewart, 586 F.3d at 332; DeHart, 214 F. App'x at 442.

g. Opportunity to Make Presentations.

Johnson claims that she was not allowed to make presentations to teachers. The Court could not locate evidence indicating when this allegedly occurred. In any event, Johnson conceded on cross-examination that she "did do [her] presentations through [her] weekly meetings with the literacy department." Johnson Test. 152. She also testified that while she thought a math coach may have done one literacy presentation, "I don't think she was allowed to do them consistently." Id. Again, assuming this is true, it is no more serious than the employment actions in the above cited cases. See, e.g., Peace, 207 F. App'x at 368--69 (finding that being assigned "menial and degrading work" and change in assignments not materially adverse).

h. The "Congeniality Awards"

Johnson claims that she was precluded from presenting "Congeniality Awards" at an endof- the-year program. Johnson testified that she wanted to present awards to students who "were courteous to [her] and said good morning to [her] in the hallway." Johnson Test. 142. The request was refused, but the action is clearly trivial and would not dissuade a reasonable person from engaging in protected activity.

i. Sick Leave

At some point near the end of March, Johnson made a request to convert a personal-leave day and her birthday leave into sick leave. She states that the request was denied, and there is circumstantial evidence in Exhibit P-6 to support the claim. Denying a change in leave could constitute a materially adverse employment action. But here, there were only two days in issue, and there is no evidence as to how the denial affected Johnson. See Stewart, 586 F.3d at 332 (holding that being placed on administrative leave for three weeks was not materially adverse absent proof of "adverse impact").

j. Transfer from Rowan Middle School to Brown Elementary School There is no dispute that JPS transferred Johnson from Rowan Middle School to Brown Elementary. JPS first contends that the transfer was not materially adverse because Johnson requested the move. But the evidence on this point is disputed. While Johnson concedes that a transfer was discussed, she also testified bluntly that she did not request this transfer and told JPS she did not want it. Johnson Test. 134. She further testified that the transfer was offered more or less as an ultimatum if she wished to continue her employment with JPS. See id. at 135. JPS's position is plausible, but viewed in a light most favorable to the verdict, a reasonable jury could find that the transfer was involuntary. Streber, 221 F.3d at 721 (evidence must be viewed in a light most favorable to the verdict.)

JPS also contends that the transfer was essentially a lateral move that was not materiality adverse. Generally, "a transfer that does not involve a demotion in form or substance cannot rise to the level of a materially adverse employment action." Sabzevari v. Reliable Life Ins. Co., 264 F. App'x 392, 396 (5th Cir. 2008) (quoting Brown v. Brady, 199 F.3d 446, 455--56 (D.C. Cir. 1999)). But even "a lateral reassignment to a position with equal pay could amount to a materially adverse action in some circumstances." Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 485 (5th Cir. 2008). Again, the evidence is mixed. JPS moved Johnson from a middle school to an elementary school where she taught children from Pre-K to the fifth grade. Johnson Test. 91--92. According to her, she was no longer working as a literacy coach for young adults which she described as her "area of expertise." Id. at 138. She further contended that the move placed her in a position that required more work, reduced her independence, and forced her to incur more out-of-pocket expenses. Id. at 91--92. Again, JPS offered plausible versions as to all of these facts, but the jury was correctly instructed on the definition of "material" and found that a materially adverse action occurred. As stated, "[c]ontext matters." White, 548 U.S. at 69. Viewed in a light most favorable to the verdict, Johnson submitted sufficient evidence in the context of this case for a reasonable jury to find that the transfer was materially adverse.

k. Stealing Accusation

According to Johnson, JPS accused her of stealing school supplies in May 2007. By her account, JPS orally accused her of misappropriating $800 worth of supplies and then asked her to sign a document to that effect. Johnson Test. 144--46. The testimony is hard to follow, and the only exhibit Johnson identifies is P-70, an e-mail to "Principals" that states, "Teacher supplies . . . are custody [of] each school and should not be carried outside . . . ." Ex. P-70. Johnson states that this email was given to her and that she was accused of stealing. There is no evidence of a reprimand of any sort.

It is tempting to say that no reasonable juror could find that Johnson was actually accused of stealing. But assuming she was, the accusation-without consequence-was not materially adverse. In Stewart, the employee was placed on administrative leave for three weeks. While the Fifth Circuit found that such actions could be materially adverse, it concluded "that Stewart suffered no adverse impact as a result of being placed on leave." 586 F.3d at 332; see also Magiera, 389 F. App'x at 438 n.4 (finding that being sent home was not materially adverse where the employee suffered "no disciplinary action"). The question may be close, but given the lack of evidence of any reprisals, Stewart applies.

In summary, the leave request incident and stealing accusation could present close issues in the JMOL context. But following precedent, the denial of Johnson's leave request was not materially adverse as a matter of law. Nor was the stealing accusation (assuming it occurred). Regardless, Johnson has presented sufficient evidence for a reasonable jury to conclude that her transfer was a materially adverse employment action. As such, JMOL on liability is denied.

2. Causation and Reasonableness of Damages

JPS's second and final ground for JMOL is that Johnson failed to put forth proof that her alleged injuries were causally related to retaliation or that they were reasonable. Def.'s Mem. [169] at 20.*fn3 JPS is correct that Johnson failed to prove injury caused by retaliation.

Plaintiff lost no wages and presented no evidence of other economic injuries. She made an improper plea for punishment in her closing statement, and referenced punitive damages in her Response. Pl.'s Resp. [165] at 51.*fn4 But the jury was not instructed on punitive damages; Johnson did not seek them in her Complaint [1]; and they are not recoverable against the school district. See 42 U.S.C. § 1981 a(b)(1) (allowing punitive damages against Title VII defendants other than governmental entities).

Thus, the only damages properly presented to the jury were for mental and emotional distress.

To recover more than nominal damages for emotional harm, a plaintiff must provide proof of actual injury resulting from the harassment. Furthermore, emotional harm will not be presumed simply because the plaintiff is a victim of discrimination. To demonstrate an actual, or specific discernable, injury, [t]he existence, nature, and severity of emotional harm must be proved.

Flowers v. S. Reg'l Physician Servs. Inc., 247 F.3d 229, 238--39 (5th Cir. 2001) (reversing jury verdict and rendering nominal damages) (citations and quotations omitted). Significantly, the alleged injury must "result[] from" the alleged retaliation. Id. It is axiomatic that the injury must occur after the retaliatory acts, and in this case, Johnson offered no such evidence.

Johnson testified that on March 1, 2007, she became "gravely ill due to the amount of stress placed upon [her] by Mr. Winters and the derogatory statements made by [Director of Literacy] Ms. [Peggy] Orey." Johnson Test. 58.*fn5 Johnson further testified that she presented to the emergency room because she had symptoms similar to a heart attack. Id. at 129--30. Those symptoms included dizziness. Id. at 131. She then introduced her hospital discharge instructions, Ex. P-72, which provide circumstantial evidence that Johnson presented with work related stress.*fn6 Johnson also testified that in February 2007 she was "so stressed out." Johnson Test. 62.

The problem is that all of her evidence regarding emotional distress occurred before any materially adverse employment action. The Court reviewed Johnson's testimony and exhibits and found no proof of her condition on any day other than March 1, 2007. As outlined in part II(A)(1), the transfer was the only materially adverse action, and Johnson learned of that in May 2007. Other acts that might present a closer question on materiality-such as the alleged theft-also occurred after March 1, 2007. The incidents occurring before March 1, ...

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