Underwood v. Mississippi Department of Corrections et al

Filing 132

ORDER denying Defendant Mississippi Department of Corrections's Motion 127 for Judgment as a Matter of Law and conditionally granting Defendant's Motion 127 for New Trial. Plaintiff Sarah Underwood may either consent to a remitted compensatory damages award or elect a new trial on damages. Signed by District Judge Halil S. Ozerden on 3/29/2022 (BTC)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
SARAH UNDERWOOD
v.
MISSISSPPI DEPARTMENT OF
CORRECTIONS

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PLAINTIFF
Civil No. 1:18cv24-HSO-JCG

DEFENDANT

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT
MISSISSIPPI DEPARTMENT OF CORRECTIONS’S MOTION [127] FOR
JUDGMENT AS A MATTER OF LAW AND CONDITIONALLY GRANTING
DEFENDANT’S MOTION FOR A NEW TRIAL OR REMITTITUR
BEFORE THE COURT is Defendant Mississippi Department of Corrections’s
Renewed Motion [127] for Judgment as a Matter of Law, or in the alternative, a
New Trial or Remittitur. This Motion has been fully briefed. Having considered the
parties’ submissions, the record in this case, and relevant legal authority, the Court
finds that the Motion [127] for Judgment as a Matter of Law should be denied and
that the Motion for New Trial or Remittitur should be conditionally granted.
Plaintiff Sarah Underwood may either consent to a remitted compensatory damages
award or elect a new trial on damages.
I. BACKGROUND
A.

Factual background
Plaintiff Sarah Underwood (“Plaintiff”) has been employed by the Mississippi

Department of Corrections (“MDOC”) since 2013. Trial Tr. Vol. III, at 6. In 2016,
Plaintiff was working as a probation/parole agent trainee in MDOC’s Pearl River
County office, where she helped monitor offenders’ compliance with the conditions

of their probation or parole. Trial Tr. Vol. II, at 61. The events from which this
action arose commenced on September 27, 2016, when senior probation officer
Bryan Scott Davis (“Davis”), Plaintiff’s coworker, began sending her text messages
proclaiming that he had feelings for her. Id. at 65-67; Joint Ex. 7, at 1. The text
messages continued over the next month, Trial Tr. Vol. II, at 69-72, 75-81, and on
October 26, 2016, Plaintiff made her first report of Davis’s conduct to her supervisor
Ben White (“White”), Joint Ex. 12, at 3. Plaintiff did not specifically mention the
text messages, but merely informed White that she believed Davis was struggling
with his home life and that his behavior had changed recently. Id.
The next day, Plaintiff rode with Davis in his MDOC vehicle to a staff
meeting. Trial Tr. Vol. II, at 84. Plaintiff had become uncomfortable around Davis
at this point, so she asked a fellow officer to ride with them; she observed that Davis
was unhappy about this and “drove like a maniac.” Id. When they returned to the
Pearl River County office, Davis stood in the doorway of Plaintiff’s office and again
expressed his romantic feelings for her. Id. at 84, 96. On October 30, 2016, Davis
sent Plaintiff over 60 messages, to which she never responded, and called her seven
times. Id. at 103. At this point Plaintiff contacted White again and informed him
that Davis was harassing her. Joint Ex. 9, at 3.
There is no dispute that White contacted his superior and the decision was
made to immediately transfer Davis to another office, in Marion County. Def.’s Ex.
1, at 1. White then instructed Plaintiff to fill out an incident report, which she
completed on October 31, 2016. Id; see Joint Ex. 12. Two days later, MDOC issued a

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“NO CONTACT DIRECTIVE” to Davis which prohibited him from contacting
Plaintiff directly or through any other person. Joint Ex. 1, at 1. There is no dispute
that after November 2, 2016, Davis had no further direct contact with Plaintiff, via
text message or otherwise. Trial Tr. Vol. III, at 13. Over the next few months,
MDOC conducted an investigation into Davis’s conduct, which culminated in a
finding that Davis had sexually harassed Plaintiff in violation of MDOC policy,
Joint Ex. 12, at 8, and resulted in a suspension of Davis for fifteen days without
pay, Joint Ex. 5, at 1.
Plaintiff testified that after she filed her sexual harassment complaint
against Davis, no one at the Pearl River County MDOC office would speak to her
and rumors of what happened between her and Davis were circulated by her fellow
officers. Trial Tr. Vol. II, at 105-06. Despite the no contact directive and
investigation into his harassing behavior, Plaintiff testified that Davis told his
former coworkers to “watch their backs, that [Plaintiff] was out to get them” and
that she was making up her allegations. Id. at 106-07. White spoke with Davis on
several occasions after Plaintiff filed her incident report and stated that Davis
believed Plaintiff was trying to get him fired. Joint Ex. 12, at 6.
According to Plaintiff, rumors about her continued to circulate in the MDOC
community, and on January 30, 2017, Plaintiff emailed Corrie Cockrell (“Cockrell”),
an MDOC attorney and one of the investigators handling Plaintiff’s complaint about
Davis, to inform her that Davis was telling other MDOC employees that she had
sent him naked pictures of herself. Pl.’s Ex. 2, at 2. Plaintiff denied sending these

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pictures and MDOC concluded that this rumor was unsubstantiated. Joint Ex. 12,
at 9. On March 29, 2017, Davis, while still working in Marion County, filed an
incident report in which he claimed that Plaintiff had overdosed on Adderall over
the weekend of March 19, 2017. Joint Ex. 20, at 1. In an incident report filed on
August 30, 2017, James Burch (“Burch”), an MDOC Agent, stated that before he
began working in the Pearl River County Office, he “was warned that [Plaintiff] . . .
was known for getting people fired or wrote up due to her being a mischievous [and]
malicious person.” Joint Ex. 23, at 1. Burch also stated that he was told that
Plaintiff had gang affiliations and slept with inmates. Id. In October 2017, Plaintiff
was transferred to MDOC’s Stone County office, Trial Tr. Vol. II, at 125-26, and was
informed by one of her coworkers there that there was a rumor that she was
sleeping with offenders, id. at 133.
As of the time of trial, Plaintiff was still employed by MDOC, Trial Tr. Vol.
III, at 41, working in the Hancock County office in a similar role to the one she held
in 2016 and 2017, id. at 41, 75. Plaintiff testified that the preceding events did not
cause her to miss a single day of work and she at all times continued to receive the
same level of pay. Id. at 6-7, 41.
B.

Procedural history
Plaintiff filed an initial EEOC charge on June 9, 2017, in which she detailed

Davis’s sexual harassment, the continuing alleged harassment from her coworkers,
and what she believed was subsequent retaliation. Ex. 1 [12-1] at 5-6. She amended
her charge on October 24, 2017, to include additional evidence of discrimination and

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retaliation. Id. at 9-11. Plaintiff was issued a right to sue letter as to her first
charge on October 20, 2017. Id. at 2.
Plaintiff sued MDOC, Pelicia Hall (“Hall”) in her official capacity as the
MDOC Commissioner, White, and Davis on January 19, 2018. Compl. [1]. Plaintiff
filed a First Amended Complaint [12] against Defendants on May 2, 2018, which
advanced claims under Mississippi Code Annotated § 25-9-149, the Rehabilitation
Act, 29 U.S.C. §§ 701-795, the Americans with Disabilities Act, 42 U.S.C. §§ 1210112213 (“ADA”), Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e17, state defamation law, and 42 U.S.C. § 1983, all arising out of the sexual
harassment and retaliation she allegedly experienced during her employment with
MDOC. Am. Compl. [12] at 6-8.
Prior to trial the Court entered an Agreed Judgment [76] as to Davis in
Plaintiff’s favor pursuant to Federal Rule of Civil Procedure 54(b) and terminated
him from this case. Agreed J. [76] at 2. The Court also granted summary judgment
in favor of MDOC, Hall, and White as to Plaintiff’s claims under the Rehabilitation
Act and as to her 42 U.S.C. § 1983 and Title VII claims for retaliation; and in favor
of White as to Plaintiff’s state-law defamation claim and sex discrimination claim
based on a hostile work environment under 42 U.S.C. § 1983. Order [74] at 27-28.
The Court’s Order [73] also dismissed White from the case. Id. at 28. This left for
trial Plaintiff’s Title VII claim against MDOC for sex discrimination based upon a

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hostile work environment and her claim against Burl Cain (“Cain”) 1 under 42
U.S.C. § 1983.
C.

Trial and post-trial proceedings
Plaintiff’s claims were tried before a jury on June 14-17, 2021. J. [117] at 1.

At the close of Plaintiff’s case-in-chief, MDOC and Cain moved for Judgment as a
Matter of Law under Federal Rule of Civil Procedure 50(a) as to Plaintiff’s Title VII
and § 1983 claims, as well as on her claim for punitive damages. Order [108]. The
Court granted the Motion as to Plaintiff’s claim against Cain under 42 U.S.C.
§ 1983 and as to her claim for punitive damages, and denied it as to her Title VII
hostile work environment claim against MDOC. Id. The Court further dismissed
Cain as a Defendant after concluding that it had dismissed all claims for which he
was a proper Defendant. Order [116]. MDOC reasserted its request for judgment as
a matter of law at the close of the entire case, Trial Tr. Vol IV, at 34, which the
Court denied, Trial Tr. Vol V, at 7-23. The jury returned a verdict in Plaintiff’s favor
as to her Title VII claim for hostile work environment against MDOC and awarded
her $750,000.00 in compensatory damages for emotional distress, which the Court
reduced to $300,000.00 pursuant to the noneconomic damages cap set forth at 42
U.S.C. § 1981a(b)(3)(D). Jury Verdict [113] at 2; J. [117] at 1.
MDOC has filed a Renewed Motion [127] for Judgment as a Matter of Law,
or, in the alternative, a New Trial or Remittitur. Mot. [127]. MDOC contends that it

In 2020, Nathan Burl Cain assumed the role of MDOC Commissioner and was substituted as a
party. See Mot. [96] at 1 n.1; Notice [106] of Appearance (citing Federal Rule of Civil Procedure
25(d)).
1

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is entitled to judgment as a matter of law “because the jury lacked a legally
sufficient evidentiary basis to find for . . . Plaintiff and award her damages.” Mem.
[128] at 1. Alternatively, MDOC argues that the Court should grant a new trial as
to Plaintiff’s damages or “significantly remit” her award. Id. Plaintiff has filed a
Response [129] in Opposition and MDOC has filed a Rebuttal [131].
II. DISCUSSION
A.

Renewed Motion for Judgment as a Matter of Law

1.

Applicable legal standards
Federal Rule of Civil Procedure 50(b) permits a party, within 28 days after

the entry of judgment, to file a renewed motion for judgment as a matter of law.
Fed. R. Civ. P. 50(b). Judgment as a matter of law is appropriate only when the
“facts and inferences point so strongly and overwhelmingly in the movant’s favor
that reasonable jurors could not reach a contrary conclusion.” OneBeacon Ins. Co. v.
T. Wade Welch & Assocs., 841 F.3d 669, 675 (5th Cir. 2016) (internal quotation
marks omitted) (quoting Baisden v. I’m Ready Prods., Inc., 693 F.3d 491, 498 (5th
Cir. 2012)). The Court must draw “all reasonable inferences in the light most
favorable to the verdict and cannot substitute other inferences that [it] might
regard as more reasonable.” Id. It is the non-moving party’s burden to “at least
establish a conflict in substantial evidence on each essential element of their claim.”
North Cypress Med. Ctr Operating Co. v. Aetna Life Ins. Co., 898 F.3d 461, 473 (5th
Cir. 2018) (quoting Goodner v. Hyundai Motor Co., Ltd., 650 F.3d 1034, 1039 (5th
Cir. 2011)). “Substantial evidence is more than a scintilla, less than a

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preponderance, and is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Id. (quoting Conn. Gen. Life Ins. Co. v. Humble
Surgical Hosp., L.L.C., 878 F.3d 478, 485 (5th Cir. 2017)).
Plaintiff’s sole remaining Title VII claim makes it unlawful for employers to
compel “people to work in a discriminatorily hostile or abusive environment.”
Gardner v. CLC of Pascagoula, L.L.C., 915 F.3d 320, 325 (5th Cir. 2019) (quoting
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). A hostile work environment
claim requires a plaintiff to prove that “(1) she is a member of a protected class; (2)
she suffered unwelcomed harassment; (3) the harassment was based on her
membership in a protected class; (4) the harassment affected a term, condition, or
privilege of employment; and (5) the employer knew or should have known about
the harassment and failed to take prompt remedial action.” West v. City of Houston,
960 F.3d 736, 741 (5th Cir. 2020) (internal quotation marks omitted) (quoting
Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)).
To establish the fourth element, “the harassment must be sufficiently severe
or pervasive to alter the conditions of [the victim’s] employment and create an
abusive working environment.” Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473,
479 (5th Cir. 2008) (quoting Lauderdale v. Tex. Dep’t of Crim. Just., 512 F.3d 157,
163 (5th Cir. 2007)). A plaintiff “must subjectively perceive the harassment as
sufficiently severe or pervasive, and this subjective perception must be objectively
reasonable.” Frank v. Xerox Corp., 347 F.3d 130, 138 (5th Cir. 2003). The Court is to
assess the “totality of the circumstances to determine whether an environment is

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objectively hostile” by considering the following factors: “(1) the frequency of the
discriminatory conduct; (2) its severity; (3) whether it is physically threatening or
humiliating, or a mere offensive utterance; and (4) whether it unreasonably
interferes with an employee’s work performance.” West, 960 F.3d at 742 (internal
quotation marks omitted) (quoting Harris, 510 U.S. at 23). “[S]imple teasing,
offhand comments, and isolated incidents (unless extremely serious) will not
amount to discriminatory changes in the terms and conditions of employment.”
Lauderdale, 512 F.3d at 163 (quoting Faragher v. City of Boca Raton, 524 U.S. 775,
788 (1998)).
2.

The parties’ arguments
MDOC maintains that it is entitled to judgment as a matter of law because

Plaintiff failed at trial to establish the fourth element of a hostile work environment
claim, that the harassment she suffered affected a term, condition, or privilege of
her employment. Mem. [128] at 13. 2 Specifically, it challenges Plaintiff’s evidence of
severity and pervasiveness as insufficient to establish that her coworkers’ conduct
created an abusive or hostile work environment. Id. at 5-6. On this issue, MDOC
contends that “Plaintiff provided the jury with nothing more than ‘allegations of idle
gossip and rumors’ that neither diminished the Plaintiff’s ability to work nor
established an objectively hostile work environment.” Id. at 8.
In support of its position, MDOC draws the Court’s attention to Giardina v.
Lockheed Martin Corp., a case from the Eastern District of Louisiana where the
MDOC does not challenge the remaining elements of Plaintiff’s Title VII hostile work environment
claim. See Mem. [128] 5-13; Rebuttal [131] at 2-8.

2

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court dismissed plaintiff’s hostile work environment claim because she failed to
establish the fourth element. No. Civ.A. 02-1030, 2003 WL 21634934, at *4 (E.D.
La. July 3, 2003). In Giardina, the plaintiff presented evidence that her coworkers
were spreading rumors that she was a “troublemaker,” called her a “bitch,” and
warned others not to “talk to her, she’ll file a complaint against you.” Id. at 1. The
court concluded that these “rumors and comments [were] irksome, but [did] not rise
to the level of disrupting the work environment or causing humiliation to
[plaintiff].” Id. at 5. The court found it significant that the rumors were not directed
specifically at plaintiff, in that they were not said directly to her. Id. at 5-6.
MDOC maintains that Plaintiff’s case is “on all fours with” Giardina because
the rumors Plaintiff claims were spread about her were neither directed at her nor
said directly to her, and that none of Plaintiff’s testimony with respect to the
rumors came from first-hand knowledge. Mem. [128] at 6, 8-9. MDOC also argues
that Plaintiff had no knowledge of the incident reports that Davis filled out “during
the relevant time period.” Id. at 10. MDOC asserts that, taken together, this
evidence is inadequate to prove that any harassment Plaintiff suffered was
sufficiently severe or pervasive to support a jury verdict. Id. at 11. 3
MDOC further argues that Plaintiff’s work environment was not objectively
offensive, because the alleged harassment did not hinder her job performance. Id. at

MDOC also cites DeAngelis v. El Paso Mun. Police Officers Ass’n in support of its argument that the
rumors spread about Plaintiff were not repeated directly to her. 51 F.3d 591 (5th Cir. 1995). In
DeAngelis, the Fifth Circuit found that “[f]our derogatory references to [plaintiff] at irregular
intervals in two and a half years do not evince sufficient hostility toward her as a matter of law.” Id.
at 596.
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11-12. Plaintiff acknowledged that she still works for MDOC, that her pay has
remained the same, and that she did not miss a day of work because of the
harassment in this case. Trial Tr. Vol. II, at 6-7, 41. MDOC asserts that this
evidence proves that the rumors did not affect how Plaintiff performed her job,
which it contends is fatal to a hostile work environment claim. Mem. [128] at 13.
Plaintiff responds that she presented evidence of severe or pervasive
harassment to support the jury’s finding on this issue, Mem. [130] at 1-2, and she
directs the Court to several items of evidence which she contends should be
considered in evaluating the totality of the circumstances to determine objective
offensiveness, id. at 5. 4 Plaintiff distinguishes her case from Giardina by explaining
that she suffered more severe and pervasive harassment due to the “uniquely ‘tight
knit’ environment” at the Pearl River County MDOC office, her “situation as a
young woman just entering her career,” and other incidents of harassment. Id. at 6.
Plaintiff takes the position that her case is substantially similar to
Donaldson v. CDB Inc., 335 F. App’x 494 (5th Cir. 2009). In Donaldson, plaintiff
presented evidence “concerning the pervasive nature of [her harasser]’s sexuallysuggestive comments regarding both her physical appearance and her relationship
with her boyfriend.” Id. at 502. The harasser’s comments included a remark that he
could say anything he wanted “so long as I don’t touch.” Id. The Court found that

Specifically, Plaintiff cites the following incidents of “harassing behavior”: Davis’s calls and text
messages in September and October 2016, including seven calls and sixty text messages in one day;
Davis “physically cornering [Plaintiff] in an isolated office;” Davis driving “like a maniac” with
Plaintiff in the car; and Davis’s comments to Plaintiff’s coworkers which she argues “resulted in her
co-workers’ ostracization of her.” Mem. [130] at 5 (citing Trial Tr. Vol. II, at 84, 96, 103, 105).

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“the regular, pervasive nature of the incidents in this action, coupled with the
limited time period within which this took place,” combined with the fact that the
harassing behavior caused her to miss several days of work, were sufficient to
create fact issues on plaintiff’s hostile work environment claim. Id. at 504.
3.

Analysis

a.

Whether the harassment affected a term, condition, or privilege of Plaintiff’s
employment

(i)

Frequency of the discriminatory conduct
The Fifth Circuit has noted that “[f]requent incidents of harassment, though

not severe, can reach the level of ‘pervasive,’ thereby altering the terms, conditions,
or privileges of employment such that a hostile work environment exists.”
Lauderdale, 512 F.3d at 163. The Fifth Circuit has deemed an environment hostile
or abusive based on the frequency of the harassing conduct on several occasions. For
example, Lauderdale held that plaintiff had endured pervasive harassment where
her harasser “called her ten to fifteen times a night for almost four months.” Id. at
164. Similarly, in Farpella-Crosby v. Horizon Health Care, the Fifth Circuit
affirmed a jury’s finding that plaintiff suffered from a hostile work environment
where her harasser “inquired about [plaintiff’s] sexual activity or made comments
similarly offensive two or three times a week” over a six-month period. 97 F.3d 803,
806 (5th Cir. 1996); see also Alaniz v. Zamora-Quezada, 591 F.3d 761, 772 (5th Cir.
2009) (finding legally sufficient evidence to support the jury’s hostile work
environment award where the harasser “repeatedly asked [plaintiff] out,
propositioned her, and commented on her physical appearance and dress” over a
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thirty-two-day period); Mota v. Univ. of Tex. Houston Health Science Ctr., 261 F.3d
512, 524 (5th Cir. 2001) (affirming a jury’s hostile work environment verdict in
plaintiff’s favor where the harasser “engaged in repeated, aggressive sexual
advances in the face of adamant refusal by [plaintiff]”).
Here, MDOC has acknowledged that Davis engaged in sexually harassing
behavior in the form of repeated and numerous inappropriate text messages. Joint
Ex. 12, at 8-9. The timeline Plaintiff testified to establishes that between September
27, 2016, and October 30, 2016, Davis repeatedly expressed his romantic feelings for
Plaintiff. Trial Tr. Vol. II, at 65-95; Joint Ex. 7, at 1-18. On ten different days
during this period Davis texted Plaintiff non-work-related messages which
pertained to his feelings, Joint Ex. 7, at 1-18, and on nine days during this period
Davis sent Plaintiff at least twelve messages, with a high of eighty-seven sent on
October 17, 2016, id. It is undisputed that Davis sent over sixty text messages and
called Plaintiff seven times on October 30, 2016, id. at 13-18; Trial Tr. Vol. II, at
103, and that Davis’s messages stopped after October 31, 2016, when Plaintiff
complained to White, Joint Ex. 9, at 1-3; Joint Ex. 7, at 17-18.
Plaintiff’s remaining trial evidence of harassing behavior consisted of rumors
which were less frequent. Plaintiff testified that after she filed her sexual
harassment report on October 31, 2016, there was no further direct contact from
Davis, but “[p]eople were talking about what was going on . . . between [Davis] and
me,” and that Davis told her coworkers to “watch their back.” Trial Tr. Vol. II, at
106. On December 4, 2016, Plaintiff alerted White of a rumor she had heard that

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Davis was transferred because he was sleeping with someone in Pearl River
County. Joint Ex. 29, at 1. On January 30, 2017, Plaintiff informed Cockrell that
Davis was telling MDOC employees that she sent him naked pictures of herself.
Pl.’s Ex. 2, at 2. Several months later, after moving to the Stone County MDOC
office in October 2017, Plaintiff testified that a coworker informed her that there
was a rumor that she was sleeping with offenders. Trial Tr. Vol. II, at 125-126, 133.
The trial record reveals that during the relevant time period Plaintiff was
unaware of the remaining evidence she cites in support of her claim. The first item
is the report filed by Davis on March 29, 2017, in which he claimed that Plaintiff
had overdosed on the weekend of March 19, 2017, Joint Ex. 20, at 1, and the second
is Burch’s report filed on August 30, 2017, in which he stated that he was warned
about Plaintiff and knew of the rumor that she was sleeping with offenders, Joint
Ex. 23, at 1. Nowhere in the trial record is there any evidence that Plaintiff had any
knowledge of these reports in and around the time they were filed. See, e.g., Trial
Tr. Vol. III, at 48 (stating “I don’t believe I’ve ever read this” when asked if she had
seen the incident report filed by Burch). As such, this evidence cannot be used to
support a claim that Plaintiff was subjected to pervasive harassment. See Badgerow
v. REJ Props., Inc., 974 F.3d 610, 618 (5th Cir. 2020) (holding that the rumors
about plaintiff were insufficient to support a hostile work environment based in
part on a lack of evidence that plaintiff was aware of the rumors about her during
her employment).

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Nevertheless, having considered all of the evidence under the relevant legal
standard, the Court finds that under the totality of the circumstances a reasonable
jury could have had a legally sufficient evidentiary basis to find that Plaintiff was
subjected to frequent or pervasive harassment. See Nobach v. Woodland Vill.
Nursing Ctr., Inc., 799 F.3d 374, 377-78 (5th Cir. 2015) (recognizing the applicable
legal standard for a Rule 50(b) motion). As MDOC itself has acknowledged, during a
thirty-three-day window Plaintiff was subjected to sexually harassing behavior at
the hands of Davis. Joint Ex. 7, at 1-18; Joint Ex. 12, at 2-4, 8. In Alaniz, the Fifth
Circuit affirmed a jury finding of a hostile work environment where the harasser
“repeatedly asked [plaintiff] out, propositioned her, and commented on her physical
appearance and dress” over a thirty-two-day period. Alaniz, 591 F.3d at 772. The
regularity of Davis’s inappropriate messages and the condensed timeframe over
which they occurred are similar to that in Alaniz. As such, this evidence is sufficient
to weigh this factor in Plaintiff’s favor.
(ii)

Other factors
Even given the frequency of Davis’s harassing conduct, Plaintiff has

presented insufficient evidence for a reasonable jury to conclude that she was
subjected to severe harassing behavior. Lauderdale, 512 F.3d at 163. Neither
Davis’s messages nor the rumors that resulted from his actions were sufficient to be
actionable as severe under Title VII. See Shepherd v. Comptroller of Pub. Accts., 168
F.3d 871, 874 (5th Cir. 1999) (finding comments about the plaintiff’s appearance

15

and the defendant touching plaintiff’s arm as conduct that “[e]ven if [it] occurred
with some regularity” did not constitute severe harassment).
In addition, Davis’s text messages, despite their character and numerosity,
cannot be categorized as threatening or humiliating. Compare Mable v. Navasota
Ind. Sch. Dist., No. 09-CV-00123, 2010 WL 11453634, at *13 (S.D. Tex. Aug. 18,
2010) (finding that plaintiff had presented sufficient evidence of physically
threatening behavior where she testified about two incidents of physical battery and
one incident of verbal assault), with Stewart v. Miss. Transp. Comm’n, 586 F.3d
321, 330 (5th Cir. 2009) (finding the harasser’s statement that he and the plaintiff
“should be ‘sweet’ to each other” and the harasser expressing his love for the
plaintiff was not threatening or humiliating conduct). Moreover, the various rumors
Plaintiff heard indirectly, while perhaps offensive, were not threatening. Although
Plaintiff now claims that they were humiliating, Mem. [130] at 8, she did not testify
to that effect at trial, see generally Trial Tr. Vol. II, at 60-135; Trial Tr. Vol. III, at 6101. As such these rumors can only be categorized as nothing more than offensive
utterances. Shepherd, 168 F.3d at 874 (“The mere utterance of an . . . epithet which
engenders offensive feelings in a[n] employee does not sufficiently affect the
conditions of employment.”) (internal quotation marks omitted) (quoting Harris, 510
U.S. at 21)).
Finally, even construing all of the evidence presented at trial in Plaintiff’s
favor, it is insufficient to conclude that the harassment unreasonably interfered
with her work performance. There is no evidence in the trial record of how Davis’s

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actions or the rumors actually interfered with Plaintiff’s work performance. See
Johnson v. Halstead, 916 F.3d 410, 418 (5th Cir. 2019) (concluding that racial
harassment interfered with plaintiff’s work performance where it “led to officers’
boycotting meetings with [plaintiff] and ignoring his assignments; colleagues’
refusing to assist with the grant program [plaintiff] oversaw; and [plaintiff] being
investigated for fraud”). Nor does the evidence support a finding that the
harassment detracted from Plaintiff’s work performance, discouraged her from
continuing her employment, or kept her from progressing in her career. See Barkley
Singing River Elec. Power Ass’n, 433 F. App’x 254, 258 (5th Cir. 2011). Instead, the
conduct complained of is akin to what the Fifth Circuit has recognized as “the kind
of conduct that would . . . [not] destroy [Plaintiff’s] opportunity to succeed in the
workplace.” Stewart, 586 F.3d at 330 (concluding that the harasser’s inappropriate
statements of affection every few days would not “interfere unreasonably with a
reasonable person’s work performance”); Shepherd, 168 F.3d at 874 (finding sexual
teasing and inappropriate touching over a period of two years was “not the type of
extreme conduct that would prevent [plaintiff] from succeeding in the workplace”).
Nevertheless, the Court concludes that there remains substantial evidence to
support the jury’s verdict on liability for a hostile work environment. “Although no
single incident of harassment” was sufficient to establish severe or pervasive
harassment, “when considered together and viewed in the light most favorable” to
the jury’s verdict, the trial evidence shows a pattern of harassment sufficient to

17

establish its pervasiveness and support the jury’s verdict. E.E.O.C. v. WC&M
Enters., Inc., 496 F.3d 393, 401 (5th Cir. 2007).
To satisfy the fourth element of a hostile work environment claim, the
harassment must be “severe or pervasive.” Id. at 399 (emphasis added). Plaintiff
carried her burden under this element at trial by presenting evidence of frequent
incidents of harassment which, when taken together, rise to the level of pervasive
harassment. See Donaldson, 335 F. App’x at 503 (noting that “a discrimination
analysis must concentrate not on individual incidents, but on the overall scenario”)
(quoting Jackson v. Quanex Corp., 191 F.3d 647, 660 (6th Cir. 1999)). Specifically,
Plaintiff’s testimony about the frequency of the harassing behavior, along with
MDOC’s acknowledgment that Davis’s direct contact constituted sexual harassment
and the totality of the other evidence in the trial record, constitutes evidence that “a
reasonable mind might accept as adequate to support” the conclusion the
harassment affected a term, condition, or privilege of Plaintiff’s employment. North
Cypress Med. Ctr Operating Co., 898 F.3d at 473 (quoting Conn. Gen. Life Ins. Co.,
878 F.3d at 485); Joint Ex. 12, at 8-9; Trial Tr. Vol. II, at 65-84, 94-97 (plaintiff
testifying about Davis’s conduct).
b.

Failure to take prompt remedial action
MDOC’s Renewed Motion [127] is “technically only a renewal of the [Rule

50(a) motion for judgment as a matter of law].” Puga v. RCX Sols., Inc., 922 F.3d
285, 290 (5th Cir. 2019) (quoting Mozingo v. Correct Mfg. Corp., 752 F.2d 168, 172
(5th Cir. 1985)). Accordingly, the Court can only grant MDOC’s Rule 50(b) motion

18

on grounds raised in its pre-verdict motion, “because the former is conceived of as
only a renewal of the latter.” Id. (quoting 9B Charles Alan Wright & Arthur K.
Miller, Federal Practice and Procedure § 2537 (3d ed. 2018)). MDOC has not
addressed the fifth element of a hostile work environment claim in its present
Motion [127], and its Rule 50(a) motion at trial did not advance any argument as to
the prompt remedial measures element. Trial Tr. Vol. III, at 146-48, 150-52. 5 As
such, any argument by MDOC that Plaintiff failed to prove this element is not
properly before the Court and cannot be considered. See In re Isbell Recs., Inc., 774
F.3d 859, 867 (5th Cir. 2014) (“By not raising this argument at trial or in its Rule
50(a) motion, [the moving party] has waived its right to bring a Rule 50(b) motion
on this ground.”).
In sum, on the whole record the facts and inferences do not “point so strongly
and overwhelmingly in favor of the moving party that reasonable jurors could not
arrive at a contrary verdict.” Carmona v. Sw. Airlines Co., 604 F.3d 848, 855 (5th
Cir. 2010). The Court finds that there was sufficient substantial evidence to support
the jury’s verdict on liability. MDOC’s Renewed Motion [127] for Judgment as a
Matter of Law should be denied.

Although MDOC referenced in its argument at trial a “fifth element” of a hostile work environment
claim, it only argued that the harassing conduct did not affect a term, condition, or privilege of
Plaintiff’s employment, without any discussion or substantive argument regarding whether MDOC
took prompt remedial action. Trial Tr. Vol. III, at 146.
5

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B.

Motion for a New Trial

1.

Relevant standards
MDOC also moves for a new trial on damages, arguing that the jury’s

compensatory damages award “is excessive and entirely disproportionate.” Mem.
[28] at 13. As detailed previously, the jury awarded Plaintiff $750,000.00 in
compensatory damages for emotional distress, which the Court reduced to
$300,000.00 pursuant to the noneconomic damages cap set forth at 42 U.S.C. §
1981a(b)(3)(D). Jury Verdict [113] at 2; J. [117] at 1. 6
A court has the discretion to grant a new trial “after a jury trial, for any
reason for which a new trial has heretofore been granted in an action at law in
federal court.” Fed. R. Civ. P. 59(a)(1)(A); Jordan v. Maxfield & Oberton Holdings,
L.L.C., 977 F.3d 412, 417 (5th Cir. 2020). The Fifth Circuit has identified several
grounds as sufficient to order a new trial, including “if the district court finds the
verdict is against the weight of the evidence, the damages awarded are excessive,
the trial was unfair, or prejudicial error was committed in its course.” Smith v.
Transworld Drilling Co., 773 F.2d 610, 613 (5th Cir. 1985) (citations omitted). A
jury award is excessive “only if it is greater than the maximum amount the trier of
fact could properly have awarded.” Moore v. M/V ANGELA, 353 F.3d 376, 384 (5th
Cir. 2003) (citation omitted).

The Court earlier granted as unopposed MDOC’s pre-verdict Motion for Judgment as a Matter of
Law as to Plaintiff’s claim for punitive damages, leaving her compensatory damages claim for
emotional distress as her only damages claim. Trial Tr. Vol. III at 153.
6

20

The Court must “review with deference damage awards based on intangible
harm, because ‘the harm is subjective and evaluating it depends considerably on the
demeanor of witnesses.’” Giles v. Gen. Elec. Co., 245 F.3d 474, 487 (5th Cir. 2001)
(quoting Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927, 937-38 (5th Cir. 1996)).
Before evaluating whether a jury verdict is excessive, a court must first determine
whether a plaintiff is entitled to anything greater than nominal damages. See Burns
v. Nielsen, 506 F. Supp. 3d 448, 482-88 (W.D. Tex. 2020) (determining whether the
plaintiff was entitled to compensatory damages before turning to whether the jury’s
verdict was excessive).
2.

Whether Plaintiff was entitled to compensatory damages
Compensatory damages for intangible injuries, including emotional harm,

“will not be presumed simply because the plaintiff is a victim of discrimination.”
Flowers v. S. Reg’l Physician Servs. Inc., 247 F.3d 229, 239 (5th Cir. 2001) (citation
omitted). Instead, there “must be a specific discernable injury to the claimant’s
emotional state, proven with evidence regarding the nature and extent of the
harm.” Giles, 245 F.3d at 487 (quoting Brady v. Fort Bend Cnty., 145 F.3d 691, 718
(5th Cir. 1998)). The Fifth Circuit has recognized that “hurt feelings, anger and
frustration are part of life and are not the types of harm that could support a
mental anguish award,” id. at 488, but has deemed “sleeplessness, anxiety, stress,
marital problems, and humiliation,” as well as other manifestations of emotional
harm, sufficient to support an award of damages for emotional distress, Migis v.

21

Pearle Vision, Inc., 135 F.3d 1041, 1047 (5th Cir. 1998); see also DeCorte v. Jordan,
497 F.3d 433, 442 (5th Cir. 2007).
Although “corroboration and expert testimony” are preferred, Thomas v. Tex.
Dept. of Crim. Just., 297 F.3d 361, 368 (5th Cir. 2002), “[i]n certain cases a
plaintiff's testimony alone may be sufficient proof of mental damages,” Giles, 245
F.3d at 488 (quoting Brady, 145 F.3d at 720). Where an emotional distress award is
based “exclusively on the plaintiff’s testimony,” the Court must “scrupulously
analyze” it. Id. (quoting Brady, 145 F.3d at 719). A plaintiff’s “vague allegations”
and “conclusory statements” are insufficient. See Thomas, 297 F.3d at 369; Miller v.
Raytheon Co., 716 F.3d 138, 147 (5th Cir. 2013).
Here, Plaintiff testified on direct examination that since the harassing events
she experienced panic attacks, daily migraines, “stomach problems,” had to “have
shots in my face and my head,” and that her TMJ worsened. Trial Tr. Vol. II, at
134-35. On cross-examination, Plaintiff admitted that she suffered from migraines,
IBS, and TMJ before the harassment occurred, Trial Tr. Vol. III, at 18-19; Def.’s Ex.
14, at 2, but on redirect she explained that these conditions became “much worse”
after the harassment, Trial Tr. Vol. III, at 81-82.
Plaintiff testified that she went from having migraines “not very often,” to
spending “more time with [a migraine] than without them” and that she sought out
“several specialists to try to control them.” Id. at 81-82. She also testified that since
the harassment began her IBS had gone from bothering her “every once in awhile,”
meaning “a few times a month,” to dealing with symptoms every day. Id. In

22

addition, Plaintiff stated that her TMJ had “gotten a lot worse,” in that she “feels
like [she has] been punched in the face multiple times.” Id. Finally, Plaintiff
testified, without any medical evidence, that she was placed on medication for
depression following the harassment and that she takes medication every day. Id.
at 83.
Plaintiff did not offer any medical evidence or expert testimony to support her
testimony. The only corroborating evidence Plaintiff has directed the Court to is
that of her coworker, Candice Stewart. Mem. [130] at 15. Ms. Stewart testified that
I honestly don’t know how she did her job because she was so
stressed with everything. I mean, she would come in and look so
distraught and just so -- I don’t know how to explain it. She would
be upset, she would be crying. She was stressed, completely stressed
out all the time.
Trial Tr. Vol. III, at 120.
Although Plaintiff relies almost exclusively on her own testimony, based
upon Fifth Circuit precedent she has presented sufficient evidence to warrant an
award greater than only nominal damages. See Thomas, 297 F.3d at 369-70
(collecting cases). Plaintiff’s direct examination testimony consisted of mostly
conclusory statements about her physical manifestations of emotional distress, and
the Fifth Circuit recognized in Brady that this type of testimony, which merely lists
manifestations without any explanation “as to the nature or extent or severity of
the alleged harm,” is ordinarily insufficient to support a compensatory damages
award. Brady, 145 F.3d at 719. If this were Plaintiff’s only evidence, she likely
would not be entitled to more than nominal damages.

23

However, on redirect examination, Plaintiff’s testimony went further and was
sufficient to establish that she suffered a “discernible injury” as a result of the
harassment. WC&M Enters., Inc., 496 F.3d at 402-03. Plaintiff described the
nature, extent, and severity of her migraines, IBS, and TMJ, including how these
issues had been aggravated. Trial Tr. Vol. III, at 81-83. In addition, she testified
that she was prescribed medication to treat her depression and TMJ. Id. at 83; see
also Brady, 145 F.3d at 719 (finding the lack of medication to treat the plaintiffs’
“mental upsets” as evidence supporting its finding that the plaintiffs were not
entitled to mental anguish damages). The Fifth Circuit has found similar testimony
sufficient to support a compensatory damages award. See Vadie v. Miss. State Univ.,
218 F.3d 365, 377-78 (5th Cir. 2000) (finding the plaintiff’s testimony that he
suffered sleeplessness, headaches, and nausea that required him to take medication
sufficient to support a $10,000.00 emotional distress award); Oden v. Oktibbeha
Cty., 246 F.3d 458, 470-71 (5th Cir. 2001) (finding that plaintiff's “testimony
concerning stress, sleeplessness, betrayal, and shame” sufficient to support
the jury's award of $20,000.00).
In this case, the Court is of the view that the jury’s award for emotional
distress was excessive and against the weight of the evidence, but that, based upon
the foregoing Plaintiff is nevertheless entitled to an award of some amount greater
than nominal damages.

24

3.

Maximum recovery rule
In determining whether a jury’s compensatory damages award is excessive,

the Fifth Circuit employs the “maximum recovery rule,” Puga, 922 F.3d at 297,
which provides that a court should “decline to reduce damages where the amount
awarded is not disproportionate to at least one factually similar case from the
relevant jurisdiction,” id. (quoting Lebron v. United States, 279 F.3d 321, 326 (5th
Cir. 2002)). Contrary to MDOC’s assertion, 7 in cases tried before a jury, a 50%
enhancement, or a multiplier, is applied to past similar awards to measure
disproportionality. Id. The Fifth Circuit has directed that, under this rule, the
maximum amount a jury can award is “150% of the highest inflation-adjusted
recovery in an analogous, published decision.” Longoria v. Hunter Express, Ltd., 932
F.3d 360, 365 (5th Cir. 2019) (citations omitted). For federal discrimination claims,
the “relevant jurisdiction” means only cases decided by the Fifth Circuit. Salinas v.
O’Neil, 286 F.3d 827, 831 (5th Cir. 2002).
MDOC contends that Plaintiff’s uncorroborated testimony is similar to the
testimony upon which the Fifth Circuit relied in Patterson, such that Plaintiff is
only entitled to nominal damages. Mem. [128] at 20-21; Patterson, 90 F.3d at 940-41
(remitting plaintiff’s compensatory damages award to nominal damages where the
plaintiff “failed to present sufficient competent testimony and/or other evidence to

MDOC contends that the Court “may,” but is not required to, apply this enhancement. Mem. [128]
at 19, n. 8; Rebuttal [131] at 8-9. However, recent Fifth Circuit precedent is clear that the 50%
enhancement must be applied in jury cases to determine the maximum amount a jury could award.
See Puga, 922 F.3d at 297; Longoria v. Hunter Express, Ltd., 932 F.3d 360, 365 (5th Cir. 2020);
Echeverry v. Jazz Casino Co., L.L.C., 988 F.3d 221, 236 (5th Cir. 2021).
7

25

demonstrate the nature and extent of emotional harm caused by her unlawful
termination”). However, the Court has already determined that Plaintiff’s
testimony was sufficient to warrant an award greater than nominal damages,
making Patterson distinguishable. MDOC argues that Plaintiff’s testimony is also
similar to that in Migis, where the Fifth Circuit affirmed a compensatory damages
award of $5,000.00 based solely on the plaintiff’s testimony. Migis, 135 F.3d at
1045-47; see Mem. [128] at 21. The Court does not disagree that this case is
factually similar, but it is not, as the Fifth Circuit requires, the “highest . . .
recovery in an analogous, published decision.” Longoria, 932 F.3d at 365.
Instead, after reviewing published 8 Fifth Circuit employment discrimination
decisions, 9 the Court finds that Vadie appears to be the highest recovery in a
factually similar case. 10 In Vadie, the plaintiff sued Mississippi State University for
racial and national origin discrimination and retaliation in violation of Title VII.
Vadie, 218 F.3d at 370. The plaintiff was awarded $350,000.00 in compensatory

Both parties’ briefs cite unpublished cases applying the maximum recovery rule, as well as
published cases not from the Fifth Circuit. Mem. [128] 19-22; Mem. [130] 11-16. The Court may only
consider published decisions from the Fifth Circuit in applying this rule. Longoria, 932 F.3d at 365;
see also Miniex v. Houston Hous. Auth., 400 F. Supp. 3d 620, 660-661 (S.D. Tex. 2019) (applying this
rule).
9
See Forsyth v. City of Dallas, 91 F.3d 769, 774 (5th Cir. 1996); Farpella-Crosby, 97 F.3d at 809;
Migis, 135 F.3d at 1046-47; Patterson, 90 F.3d at 938-40; Brady, 145 F.3d at 718-20; Vadie, 218 F.3d
at 378; Williams v. Trader Publ’g Co., 218 F.3d 481, 486-87 (5th Cir. 2000); Giles, 245 F.3d at 487-89;
Flowers, 247 F.3d at 238-39; Oden, 246 F.3d at 470-71; Thomas, 297 F.3d at 369-372; DeCorte, 497
F.3d at 442-43.
10 The Court also finds that, despite some parallels between Plaintiff’s case and the Fifth Circuit’s
Forsyth decision, Forsyth is distinguishable. Here, Plaintiff presented no evidence that she lost
weight or had marital problems as a result of Davis’s harassment. See Forsyth, 91 F.3d at 774 (one
plaintiff testifying that she suffered from weight loss and marital problems). More importantly,
Plaintiff also testified that she never missed a day of work due to the harassment she endured,
whereas one of the plaintiffs in Forsyth was “sent home from work because of her depression” and
had to consult a psychologist. Id.
8

26

damages for mental anguish by the jury, which the district court reduced to
$300,000.00 pursuant to 42 U.S.C. § 1981a(b)(3)(D). Id. The plaintiff’s evidence on
this issue was the following testimony:
[i]t destroyed me. It totally ruined me, and I become sick, totally ill,
physically, mentally, and everything. I took many doctors, many
pills. I did not know what to do, where to go, what to say. I did not
know whether it was nighttime or daytime. I could not sleep for
months at a time. Headache, nausea. Still I am under severe doctor
surveillance because of what they have done to me[.]
Id. at 377.
The Fifth Circuit found that the plaintiff’s testimony “was sufficient to
support a finding of actual injury,” but concluded that the jury award was “entirely
disproportionate to the injury sustained.” Id. at 377-378. The Fifth Circuit noted
that there was no medical evidence presented, nor was there any corroborating
evidence to support the plaintiff’s testimony, and found “that an award greater than
$10,000 would be excessive.” Id. at 378. Accordingly, it remanded the case for a new
trial on damages unless the plaintiff accepted a remitted damages award of
$10,000.00. Id. 11
Here, Plaintiff testified that she suffered similar physical manifestations of
emotional distress, including depression and aggravation of her migraines, TMJ,
and intestinal problems. Id. at 377; Trial Tr. Vol. III, at 81-83. Like the plaintiff in
Vadie, Plaintiff relied primarily on her own uncorroborated testimony of these

Vadie did not apply the 50% enhancement, but the Fifth Circuit has cited and relied on this case in
applying the maximum recovery rule and the 50% enhancement in employment discrimination cases.
See Thomas, 297 F.3d at 369 (considering Vadie in applying the maximum recovery rule to a
plaintiff’s Title VII verdict); see also Longoria, 932 F.3d at 365 (explaining how the maximum
recovery rule is applied in cases tried by a jury).
11

27

issues to establish damages, and presented no medical evidence. Vadie, 218 F.3d at
377; Trial Tr. Vol. II, at 134-35; Trial Tr. Vol. III, at 81-83. Plaintiff offered vague
testimony that she needed to take medication for her depression, Vadie, 218 F.3d at
377; Trial Tr. Vol. III, at 83, and this testimony was not corroborated by any
medical evidence 12 or witness testimony, 13 see Vadie, 218 F.3d at 377. On similar
facts, the Fifth Circuit in Vadie remitted the plaintiff’s compensatory damages
award for emotional distress from $300,000.00 to $10,000.00 in July 2000. See
Vadie, 218 F.3d at 378. The Court finds this to be the highest award in a factually
analogous case. When adjusted for inflation to the time of the trial in June 2021,
this amount comes to $15,723.15. 14 Under the maximum recovery rule, the Court is
required to add 50% to this figure, which equals a total of $23,584.72. Accordingly,
the Court finds that the jury’s compensatory damages award was excessive and
should be remitted from $300,000.00 to $23,584.72 under the maximum recovery
rule. Plaintiff may accept this amount or elect a new trial on damages. 15

Plaintiff argues that there is medical evidence to support her testimony in the form of a health
questionnaire she submitted to MDOC, which confirms that she suffered from migraines, TMJ, and
IBS prior to April 28, 2016. See Mem. [130] at 14 (citing Def.’s Ex. 14.). This document does not
corroborate Plaintiff’s testimony because it was prepared before Davis’s harassment occurred and
cannot support her statements that these conditions were aggravated by Davis’s harassment.
13 Plaintiff contends that her testimony was also corroborated by Candice Stewart. Mem. [14] at 15
(citing Trial Tr. Vol. III, at 120). Ms. Stewart testified that Plaintiff was stressed and cried at work,
but she never addressed Plaintiff’s medical manifestations of emotional distress. See Trial Tr. Vol.
III, at 120.
14 See Bureau of Labor Statistics's CPI Inflation Calculator, available at https://data.bls.gov/cgibin/cpicalc.pl.; Puga, 922 F.3d at 298 n.12 (using this calculator to make inflation adjustments).
15 Although neither dispositive nor controlling, the Court notes that in a previous Title VII case tried
to a jury in this District, Canaski v. Mid Miss. Props., No. 1:15-cv-344-HSO-JCG (S.D. Miss. Feb. 15,
2017), one plaintiff alleged that her supervisor sexually assaulted her. Compl. [1] at 5. The jury in
Canaski, awarded this plaintiff $15,000.00 in past and future compensatory damages for her mental
anguish. Jury V. [67].
12

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III. CONCLUSION
To the extent the Court has not addressed any of the parties’ remaining
arguments, it has considered them and determined that they would not alter the
result.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, Defendant
Mississippi Department of Corrections’s Renewed Motion [127] for Judgment as a
Matter of Law is DENIED.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Defendant
Mississippi Department of Corrections’s alternative Motion [127] for a New Trial or
Remittitur is conditionally GRANTED, and that on or before April 29, 2022,
Plaintiff Sarah Underwood may either accept a remitted compensatory damages
award of $23,584.72, or elect a new trial on damages.
SO ORDERED AND ADJUDGED, this the 29th day of March, 2022.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

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