549 F.3d 985 (5th Cir. 2008), 07-60419, Stover v. Hattiesburg Public School Dist.

Docket Nº:07-60419.
Citation:549 F.3d 985
Party Name:Addie STOVER, Plaintiff-Appellant, v. HATTIESBURG PUBLIC SCHOOL DISTRICT, Defendant-Appellee.
Case Date:November 18, 2008
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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549 F.3d 985 (5th Cir. 2008)

Addie STOVER, Plaintiff-Appellant,



No. 07-60419.

United States Court of Appeals, Fifth Circuit.

November 18, 2008

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Kim Turner Chaze (argued), Hattiesburg, MS, for Stover.

Holmes S. Adams (argued), John Simon Hooks, Adams & Reese, Jackson, MS, for Defendant-Appellee.

Appeals from the United States District Court for the Southern District of Mississippi.


CARL E. STEWART, Circuit Judge:

Plaintiff-Appellant Addie Stover (“ Stover" ) appeals the Final Judgment entered pursuant to a jury verdict in favor of Defendant-Appellee Hattiesburg Public School District (“ School District" ), the denial of a motion for a new trial, and the district court's grant of attorney's fees to the School District. On appeal, Stover argues that (1) the district court made evidentiary errors during the trial, (2) the district court erroneously permitted the “ same actor" jury instruction, (3) the jury verdict was against the overwhelming weight of the evidence, and (4) the district court erroneously awarded attorney's fees to the School District. For the following reasons, we affirm in part, reverse and vacate in part, and render in part.


In early 1996, Stover, an African American female, began working as a temporary secretary to Jimmy Hopkins in the Personnel Department at the School District. Hopkins, an African American, was the Associate Superintendent and head of the Personnel Department. Stover holds a bachelor's degree in English with a minor in Paralegal Studies. In June 1996, Stover began working as a full-time secretary to Hopkins, and Stover's beginning salary was $12,945. For the 1997-98 term, Stover was assigned to work for Dr. Gordon Walker, a white male, instead of Hopkins. Dr. Gordon Walker was the Superintendent at the time Stover was his secretary. Dr. Walker resigned in 1999, and Dr. James Davis, an African American, became Superintendent. In June 2005, Dr. Davis retired, and Dr. Annie Wimbish,1 an African American female, became Superintendent. Stover's salary at the time she resigned in 2006 was $37,438. Stover is not a licensed educator, and she did not have an employment contract with the School District.

During his tenure as Superintendent, Dr. Davis had a “ cabinet" of high-level administrators, including Perrin Lowery, Tressie Harper, Penny Wallin, and Jimmy Hopkins; Stover was not a member of the cabinet. Perrin, Harper, and Wallin held doctorate degrees in education, and Hopkins held a master's degree and was working on his doctorate degree. In 2001, Dr. Harper resigned to become a superintendent for another district. The School District did not immediately replace Dr. Harper because of budget considerations. Stover contends that she assumed many of the responsibilities of Dr. Harper when Dr. Harper resigned; Dr. Davis testified that he assumed most of Dr. Harper's responsibilities, and the other responsibilities were spread out among others.

Approximately two years after Dr. Harper resigned, the School District decided to fill the vacuum created by Dr. Harper's resignation. This action arose from the

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School District's decision to hire Alan Oubre, a white male, as the Central Office Administrative Coordinator in August 2003. The School District concedes that it did not advertise the available position. Oubre's starting salary was $48,380 for the partial school year and $62,845 for the full school year. Oubre holds a bachelor's degree in secondary school English and a master's degree in Educational Administration. Oubre has a contract of employment with the School District.

Upon learning of Oubre's salary, Stover argued that both Oubre and she were Administrative Assistants who performed substantially equal work, and therefore, they should be paid the same. In August 2004, Stover filed a charge of discrimination with the Equal Employment Opportunity Commission (“ EEOC" ), alleging that the School District discriminated against her on the basis of race and violated the Equal Pay Act (“ EPA" ), 29 U.S.C. § 206(d). On June 23, 2005, Stover filed a complaint in federal district court for claims of race discrimination under Title VII and violation of the EPA. On June 30, 2005, she filed another charge with the EEOC, adding allegations of gender discrimination and retaliation. Stover amended the complaint twice, and on January 9, 2006, Stover filed her second amended complaint alleging race and sex discrimination under Title VII, retaliation under Title VII, and violation of the EPA.

The School District moved for summary judgment on all claims. On February 8, 2007, the district court found no direct evidence of discrimination and applied the McDonnell Douglas burden-shifting framework to determine whether Stover made out a prima facie case of discrimination under Title VII. The court concluded that there was sufficient evidence in the record to withstand a motion for summary judgment as to the Title VII race and sex discrimination claims. Specifically, the district court stated the following:

There is evidence in the record that Ms. Stover and Mr. Oubre performed similar duties and that their job functions overlapped and that Mr. Oubre assumed some of Ms. Stover's duties during her employment at [the School District]. There is also evidence in the record demonstrating differences between Mr. Oubre's and Ms. Stover's jobs. At certain times Mr. Oubre and Ms. Stover apparently shared the same title of “ administrative assistant."

The district court denied the School District's motion for summary judgment as to the race and sex discrimination claims under Title VII. Citing the same evidence, the district court similarly denied the School District's motion as to the claim under the EPA.

The district court also held that there was sufficient evidence to support Stover's retaliation claim and denied the School District's motion as to that claim. The court pointed to evidence that “ there had been no performance problems on Ms. Stover's part until Mr. Oubre was hired, and that in 2004, 2005 and 2006[,] there were increasing issues with Ms. Stover's performance being raised by Dr. Davis and Mr. Hopkins." The court granted the School District's motion as to Stover's claim of constructive discharge, holding that the alleged conduct did not rise to the level of constructive discharge.2

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The case proceeded to a jury trial on February 12-16, 2007. The district court precluded certain evidence, including evidence of the School District's pattern and practice not to advertise positions of employment. Citing Frank v. Xerox Corp., 347 F.3d 130, 136 (5th Cir.2003), the district court held that pattern and practice evidence should be excluded.

During the jury trial, the School District moved for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(a). The district court took the motion under advisement and permitted the case to go to the jury. The jury returned a unanimous special verdict in favor of the School District on all claims, and the district court entered Final Judgment in favor of the School District on February 28, 2007. Stover filed a motion for a new trial, which the district court denied.

The School District moved for an award of attorney's fees and costs, which Stover opposed. The district court awarded attorney's fees to the School District in the amount of $144,058.50 and taxed costs against Stover in the amount of $10,570.06. In deciding the attorney's fees issue, the district court stated that there were “ [n]umerous examples of the diverseness of [Stover's and Oubre's] jobs [ ] brought out during the testimony."

While at trial it was obvious that the case was baseless, frivolous and without merit, the plaintiff and her attorney did not have the benefit of all of the information learned in discovery at the time of filing suit. However, the Court finds that the latest time that the plaintiff should have realized that her suit was frivolous and baseless was by the conclusion of discovery. She certainly should have recognized this at that time. Therefore, the Court does hereby find that from the end of discovery forward the plaintiff should be required to reimburse the defendant's attorney[']s fees.

Stover filed a timely notice of appeal, assigning the following errors by the district court: (1) not permitting alleged admissions of discrimination and discriminatory intent to be considered as direct evidence of discrimination at the trial; (2) permitting evidence of Oubre's qualifications during the trial; (3) permitting evidence during the trial that attacked Stover's character; (4) excluding evidence of the School District's pattern and practice; (5) precluding evidence regarding constructive discharge; (6) submitting the “ same actor" jury instruction to the jury; (7) the jury verdict was against the overwhelming weight of the evidence; and (8) awarding attorney's fees to the School District. We now turn to a discussion of these assigned errors.


Stover's eight assignments of error fall into five broad categories: the summary judgment ruling on the constructive discharge claim, evidentiary rulings during

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the trial proceedings, objections to the jury instructions, the jury verdict, and the award of attorney's fees. We will discuss each category in turn.

A. Constructive Discharge Claim

The district court granted the School District's motion for summary judgment on Stover's claim for constructive discharge. We...

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