Opinion

Lewis v. Louisiana State University

Court
District Court, M.D. Louisiana
Filed
May 7, 2024
Cited by
0 cases
Authority
More cited than 22.5%

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

SHARON LEWIS, CIVIL ACTION

Plaintiff

VERSUS NO. 21-198-SM-RLB

BOARD OF SUPERVISORS OF LOUISIANA

STATE UNIVERSITY AND AGRICULTURAL

AND MECHANICAL COLLEGE,

Defendant

ORDER AND REASONS

Before the Court is Plaintiff Sharon Lewis’s Renewed Motion for Judgment as a

Matter of Law, or, in the alternative, a New Trial (the “motion”).1 Pursuant to Federal Rule

of Civil Procedure 50(b), Plaintiff urges this court to enter judgment as a matter of law in

her favor notwithstanding the defense verdict at the conclusion of trial on December 20,

2023.2 Alternatively, Plaintiff moves this Court to grant her a new trial under Federal Rule

of Civil Procedure 59(b) “as the verdict is against the weight of the evidence” and the jury

was tainted by certain communications by witnesses and statements in opening statement

and closing argument by defense counsel.3 Because the Court finds that neither a

judgment as a matter of law under Rule 50(b) nor a new trial under Rule 59(b) is

warranted, the motion is DENIED.

BACKGROUND

The full and lengthy history of this case is set forth extensively in prior Orders &

1 R. Doc. 555.

2 R. Doc. 547.

3 R. Doc. 555.

Reasons.4

Plaintiff initially sued Defendant, Board of Supervisors of Louisiana State

University and Agricultural and Mechanical College, along with dozens of other

defendants on April 8, 2021,5 and filed a First Amended Complaint on May 5, 2021.6

Plaintiff, a former employee in the LSU athletics department, made a wide array of

allegations concerning sex- and race-based discrimination and harassment at LSU, and

she alleged her termination, along with a promotion she received without a corresponding

increase in pay, were retaliation for her prior reporting of discrimination and

misconduct.7 After extensive motions practice, Plaintiff filed her Second Amended

Complaint eight months later, on March 4, 2022.8 Eighteen months of further dipositive

motions and discovery disputes followed.

Eventually, only the Board remained as Defendant. On October 11, 2023, the Board

filed a Motion for Summary Judgment,9 which the Court granted in part and denied in

part on December 1, 2023.10 The five remaining claims against the Board proceeded to

trial. They were:

 Title IX retaliation, for Plaintiff being given a promotion without a pay

increase in August 2020;

 Title IX retaliation, for Plaintiff’s 2022 termination;

 Title VII retaliation, for Plaintiff being given a promotion without a pay

increase in August 2020;

 Title VII retaliation, for Plaintiff’s 2022 termination; and

 Title VII hostile work environment.

4 See, e.g., R. Doc. 254.

5 R. Doc. 1.

6 R. Doc. 5.

7 See generally R. Docs. 1, 8.

8 R. Doc. 219.

9 R. Doc. 424.

10 R. Doc. 501.

The jury trial began on December 11, 2023,11 and testimony lasted six days.12 On

December 20, the jury returned a verdict in favor of Defendant as to all five claims,

awarding Plaintiff no damages.13

Plaintiff filed this motion on January 17, 2024.14 Defendant filed its response in

opposition on February 9, 2024,15 and Plaintiff replied.16

LEGAL STANDARD

Plaintiff moves for either judgment as a matter of law under Rule 50(b) or a new

trial under Rule 59.

I. Rule 50(b) standard for judgment as a matter of law.

Rule 50(b) of the Federal Rules of Civil Procedure provides:

If the court does not grant a motion for judgment as a matter of law made

under Rule 50(a), the court is considered to have submitted the action to

the jury subject to the court's later deciding the legal questions raised by the

motion. No later than 28 days after the entry of judgment--or if the motion

addresses a jury issue not decided by a verdict, no later than 28 days after

the jury was discharged--the movant may file a renewed motion for

judgment as a matter of law and may include an alternative or joint request

for a new trial under Rule 59. In ruling on the renewed motion, the court

may:

(1) allow judgment on the verdict, if the jury returned a verdict;

(2) order a new trial; or

(3) direct the entry of judgment as a matter of law.17

“A party is 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.’”18 The Court does not “weigh evidence, judge witness credibility, or

11 R. Doc. 532.

12 R. Docs. 532, 533, 534, 541, 543, 544.

13 R. Doc. 547.

14 R. Doc. 555.

15 R. Doc. 574.

16 R. Doc. 576.

17 FED. R. CIV. P. 50(b).

18 Logan v. Burgers Ozark Country Cured Hams Inc., 263 F.3d 447, 455 (5th Cir. 2001) (citation omitted).

challenge the factual conclusions of the jury. Judgment as a matter of law is appropriate

if there is no legally sufficient evidentiary basis for a claim under the controlling law.”19

When deciding a motion for judgment as a matter of law, a court should consider all the

evidence “in the light and with all reasonable inferences most favorable to the party

opposed to the motion.”20 Underscoring all of this, the Fifth Circuit “has expressed

wariness in upsetting jury verdicts, stating that jury verdicts will be upheld ‘unless the

facts and inferences point so strongly and so overwhelmingly in favor of one party that

reasonable [jurors] could not arrive at any verdict to the contrary.’”21 Accordingly, in

general, jury verdicts “should not be disturbed absent strong, overwhelming evidence that

shows a reasonable jury could not reach the opposite conclusion.”22

II. Rule 59 standard for new trial.

Rule 59 states, in relevant part, “[t]he court may, on motion, grant a new trial on

all or some of the issues—and to any party . . . after a jury trial, for any reason for which a

new trial has heretofore been granted in an action at law in federal court . . . . A motion

for a new trial must be filed no later than 28 days after the entry of judgment.” The Fifth

Circuit has further defined “[a] new trial may be granted 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 court.”23

Concerning the weight of the evidence, “[i]n a further effort to prevent the trial

judge from simply substituting his judgment for that of the jury,” the Fifth Circuit requires

“that new trials should not be granted on evidentiary grounds ‘unless, at a minimum, the

19 Id. (citation and internal ellipsis omitted).

20 Mosley v. Excel Corp., 109 F.3d 1006, 1008-09 (5th Cir. 1997) (quotation omitted).

21 Johnson v. City of Thibodaux, CV 14-2369, 2017 WL 3263275, at *1 (E.D. La. Jan. 9, 2017) (quoting

Mosely, 109 F.3d at 1009 (quotation omitted)).

22 Gaddy v. Taylor Seidenbach, Inc., 446 F. Supp. 3d 140, 151 (E.D. La. 2020).

23 Smith v. Transworld Drilling Co., 773 F.2d 610, 612–13 (5th Cir. 1985).

verdict is against the great—not merely the greater—weight of the evidence’”24 True, “[a]

verdict can be against the ‘great weight of the evidence’, and thus justify a new trial, even

if there is substantial evidence to support it.”25 However, “[t]his does not mean that a

judge may order a new trial simply because [s]he disagrees with the jury verdict. [She]

must be convinced that the verdict is against the great weight of the evidence.”26

Nevertheless, when a jury’s verdict is “clearly within the universe of possible awards

which are supported by the evidence,”27 a new trial is not warranted.

LAW AND ANALYSIS

Plaintiff argues she is entitled to judgment as a matter of law or, alternatively, a

new trial on each of the Title IX and Title VII claims on which the jury found for

Defendant. Further, Plaintiff argues the Court should grant a new trial because of witness

Scott Woodward’s communication with jurors and certain statements by defense counsel

in opening statement and closing argument. The Court addresses each argument in turn.

I. The Court will not grant Plaintiff judgment as a matter of law or a new

trial on her Title IX retaliation claims.

To prove a Title IX retaliation claim, a plaintiff must show (1) she engaged in

activity protected by Title IX, (2) suffered an adverse employment action, and (3) a causal

connection exists between the protected activity and the adverse employment action.28

“[A] a Title IX retaliation claim only covers conduct protected by Title IX.”29

It its opposition, Defendant does not address the first two elements, sidestepping,

but not conceding, whether Plaintiff showed she engaged in protected activity and

24 Shows v. Jamison Bedding, Inc., 671 F.2d 927, 930 (5th Cir. 1982) (citations omitted).

25 Id.

26 Id.

27 Gaddy, 446 F. Supp. 3d at 149.

28 Normore v. Dallas Indep. Sch. Dist., 677 F.Supp.3d 494, 535 (N.D. Tex. 2023) (citing Willis v. Cleco

Corp., 749 F.3d 314, 317 (5th Cir. 2014)).

29 Taylor-Travis v. Jackson State Univ., 984 F.3d 1107, 1119 (5th Cir. 2021).

suffered an adverse employment action.30 Defendant focuses on whether Plaintiff has

established causation. Plaintiff agrees that “[t]he only issue before the Court is whether

Plaintiff was terminated for engaging in protected activity.”31 For present purposes, the

Court will assume Plaintiff proved the first two elements at trial: (1) she engaged in Title

IX protected activity when she reported sexual misconduct by certain coaches and

administrators at LSU, and (2) she suffered an adverse employment action when she was

terminated and when she received a promotion without a corresponding increase in pay.

In her motion, Plaintiff argues that the “evidence is so strong and overwhelming in

Plaintiff’s favor” that “reasonable jurors could only have found Plaintiff”32 was terminated

and promoted without a pay increase because of her prior projected Title IX activity.

Defendant argues that Plaintiff’s motion fails as to the third element, causation—that is,

that she was terminated or received a promotion without a pay increase because she

engaged in protected activity. The Court agrees with Defendant.

A. The Court will not grant judgment as a matter of law that

Plaintiff’s termination was retaliation for her Title IX activity.

With respect to her termination, Plaintiff bases her theory of causation on the

hiring of head football coach Brian Kelly and the related hiring of associate head coach

Frank Wilson, against whom Plaintiff had previously filed Title IX complaints.33 As she

argues it, she “was terminated for reporting Frank Wilson in order to protect Wilson from

a Title IX investigation.”34 That is, Kelly was hired to coach the football team, Kelly wished

to hire Wilson as his top assistant, and Plaintiff was terminated to clear the way for

30 R. Doc. 574 at p. 7. n. 11.

31 R. Doc. 576 at p. 1.

32 R. Doc. 555-1 at p. 16.

33 Id. at pp. 11–16.

34 Id. at p. 13. Plaintiff also argues that she was terminated “for reporting [Les] Miles, Wilson, and [Verge]

Ausberry.” Id. at p. 11. Regardless, as discussed herein, ample evidence supports the jury’s verdict that

Plaintiff’s termination was not Title IX retaliation.

Wilson’s hire.

In fact, as Defendant correctly identifies, there was substantial evidence presented

to support the jury’s verdict that Plaintiff’s termination was not caused by retaliation for

her Title IX reports against Wilson and others. Regarding Plaintiff’s termination, Kelly

testified that he “terminated the position.”35 Kelly testified he did not know of Plaintiff’s

prior allegations against Wilson when he made that decision: asked directly whether, “at

the time [he] made the decision to eliminate . . . [Plaintiff’s position, he] had heard

anything about [Plaintiff] making any complaints about Frank Wilson,” Kelly answered,

“No.”36 Kelly further testified he “learned about [the complaints against Wilson] after” he

eliminated Plaintiff’s position.37

As to Kelly’s reasons for eliminating Plaintiff’s position, Kelly testified that upon

arriving at LSU, “it was pretty quick that [he] was able to look at the current organizational

chart and see that [he] was going to make quick and swift changes.”38 He gave a detailed

description of the “sweeping changes across the board” he decided to make when he

became head coach, in keeping with his “vision for” how he wanted to run the football

program based on the “day-to-day” operations of his “prior successes” at other schools.39

Asked whether he had authority from the athletic director to make such significant

changes, Kelly responded, “I did.”40

Miriam Segar and Verge Ausberry testified that roughly forty other football staff

and administrators were terminated following Kelly’s hire.41. In fact, as described below,

35 R. Doc. 555-2 at p. 28.

36 R. Doc. 589 at pp. 18–19.

37 Id.

38 Id. at pp. 11–12.

39 R. Doc. 555-2 at p. 10–11.

40 R. Doc. 589 at p. 12.

41 R. Doc. 585 at p. 310; R. Doc. 600 at p. 112.

five different witnesses testified that the widespread terminations following Kelly’s arrival

were not unexpected upon the arrival of a new head coach like Kelly.

Segar testified that “it’s not uncommon, when [head coaching] staffs change, for

them to bring in their own staff.”42 She recalled that “similar circumstance[s]” recently

happened with the volleyball and soccer programs, and offered “it’s not uncommon in

sports for the head coach to have a say with who their staff is.”43 On this topic, Segar

testified she “didn’t know any difference” between Plaintiff’s termination and the others

who were terminated when Kelly was hired.44

Ya’el Lofton, Kelly’s executive assistant, testified that she believed “when Coach

Kelly was coming in, anybody that had a powerful position was going to be gone.”45 She

understood that Kelly “was an established coach with a very high winning record” and “he

had his own people.”46 In her view, she did not “feel like [the Board] had a part” in

Plaintiff’s termination because she believed the termination to be the result of “Coach

Kelly bringing in his own people.”47

Ausberry testified that “Brian Kelly said he wanted a whole new recruiting staff and

whole new [sic] in that area . . . so it would have to be the football coach [who] makes

those calls”48 to terminate the staff members. Though much of the turnover was in the

recruiting staff, Ausberry testified that the terminations also were widespread across

coaching staff, strength and conditioning, and administrators.49 Ausberry testified Kelly

42 R. Doc. 585 at p. 305.

43 Id. at pp. 305-06.

44 Id.

45 R. Doc. 584 at p. 360.

46 Id. at p. 355.

47 Id. at p. 361.

48 R. Doc. 555-10 at p. 113.

49 R. Doc. 600 at p. 112-13.

“had total control”50 to make the decision to terminate “[b]etween 40 and 50”51 people.

Scott Woodward, LSU’s Athletic Director, testified that at LSU, “there’s autonomy

with [the] head coaches on what staff they want to bring in,” but even more, “[f]ootball is

unique and different,” and “when you have a new head coach, especially one of Coach

Kelly’s stature, you have big turnover.”52 Woodward added, “I grant them autonomy to

set up their staff.”53

Stephanie Rempe testified that Kelly “knew that he wanted to make changes to the

recruiting department, which led to terminating that entire staff and then hiring people

that fit what he wanted to build.”54 Asked whether Kelly similarly made “sweeping

changes in other departments,” Rempe answered that he made changes to “the whole

staff.”55

In sum, numerous witnesses each testified that Plaintiff’s termination was a result

of Kelly’s hiring as head coach and his decisions intended to shape his staff. On this point,

Plaintiff offers only that “her termination was connected to the rehiring of Wilson.”56 But

as the ample testimony recounted above shows, Plaintiff cannot show that the evidence

points only to her termination being a result of her protected Title IX activity. Instead, it

is possible that the jury found the evidence to point in another way—that Plaintiff’s

termination was a result of massive turnover in the football program upon the arrival of

a new head football coach. The jury’s verdict is supported by a “legally sufficient

evidentiary basis for a claim under the controlling law.”57 This is a “reasonable inference[]

50 R. Doc. 555-10 at p. 111.

51 Id. at p. 112.

52 R. Doc. 555-11 at p. 4.

53 Id. at pp. 4–5.

54 R. Doc. 589 at p. 68.

55 Id.

56 R. Doc. 555-1 at p. 15.

57 Burgers Ozark, 263 F.3d at 455 (emphasis added) (cleaned up).

that may support the opposing party's position.’”58 Accordingly, Plaintiff is not entitled to

judgment as a matter of law on her Title IX claim that her termination was retaliatory.

B. The Court will not grant judgment as a matter of law that

Plaintiff’s motion without a pay increase was retaliation for her

Title IX activity.

Similar to her argument regarding her termination, Plaintiff argues when she was

not given a pay raise upon her August 2020 promotion, that lack of pay raise was

retaliation for her prior protected Title IX activity.59 As she did in regards to her

termination, Plaintiff argues “[t]he evidence is so strongly in favor of Plaintiff [that]

reasonable jurors could only have found Plaintiff did not receive a pay increase in

retaliation for her engaging in protected activity.”60 But in fact, as with her termination,

there was ample evidence introduced to support the jury’s determination that Plaintiff’s

promotion without a raise was not caused by her Title IX protected activity.

Testimony from trial revealed that Plaintiff’s promotion in August 2020, months

into the COVID-19 pandemic, came at a time of operational and financial uncertainty for

Defendant. Stephanie Rempe testified that when “COVID hit in March of 2020,” the

athletics department was “dealing with a lot of concerns.”61 She described the financial

“hit” as “tens of millions of dollars,” and she and other administrators “were evaluating

how to manage the financial situation for the department.”62 She recalled that “eight or

nine” employees were laid off as a result.63 Ausberry similarly described laying off “friends

of all races and sexes . . . [f]riends who ha[d] been there 20-something years.”64

58 Id.

59 R. Doc. 555-1 at pp. 16–17.

60 Id. at p. 17.

61 R. Doc. 589 at p. 56.

62 Id.

63 Id.

64 R. Doc. 600 at p. 101.

In her testimony, Plaintiff confirmed that employees who remained and earned

more than $80,000 a year took a 5% pay reduction beginning January 1, 2021.65 She

testified she “remember[ed]” being one such affected employee.66 Still, in April 2020,

Plaintiff received a $13,800 increase to her annual pay.67 It was during this time that

Plaintiff sought a promotion with the understanding it would not come with a pay

increase. Plaintiff confirmed she sent Ausberry a text message saying she “wanted the title

without the pay because [she] thought it would mean something.”68 Ausberry’s testimony

corroborated that Plaintiff told him she wanted “the title” that came with the promotion

“and not the raise.”69 Plaintiff told Ausberry it would “help[] her career.”70 Plaintiff was

awarded the promotion,71 and she confirmed in her testimony that, in emails with

colleagues, she described herself as “super happy” with the promotion, later telling one

colleague “[h]appiness is an understatement.”72 She testified that at the time, she thought

“[t]he change of title . . . was exciting.”73 On the witness stand, she summed up, “Yes, I

was happy.”74

In her motion, Plaintiff points to the fact that the two other athletics department

employees who were promoted alongside Plaintiff did receive raises.75 However, in

Plaintiff’s testimony, when defense counsel noted that those employees still earned less

than Plaintiff after their raises, Plaintiff did not disagree, but argued they were merely

65 R. Doc. 555-5 at p. 62.

66 Id.

67 See R. Doc. 555-11 at p. 155; Def. Exh. 12 at p. 16.

68 R. Doc. 555-5 at p. 56.

69 R. Doc. 555-10 at pp. 101–02.

70 R. Doc. 600 at p. 101.

71 Id.; R. Doc. 555-5 at pp. 54–56.

72 R. Doc. 555-5 at p. 58.

73 Id. at p. 56.

74 Id. at p. 58.

75 R. Doc. 555-1 at p. 16.

paid “their market value,”76 suggesting hers, as a member of the football program, was

higher.77 Confusingly, Plaintiff also argues that she “was the only employee promoted

without a pay increase who had reported coaches for sexual misconduct,”78 but this in fact

works against her: if other employees who had not engaged in protected Title IX activity

were promoted without a pay raise, that would suggest to a jury that the Title IX activity

did not cause Plaintiff’s failure to receive a raise. Lastly, Plaintiff takes issue with the

evidence introduced concerning the comparison of Plaintiff’s salary to similarly-situated

employees at other schools in the Southeastern Conference, and she cites testimony from

Ausberry that Plaintiff’s salary was “compared to the people in [her] same position,” but

“not with a winning program” like that at LSU.79 Ausberry confirmed her salary was

“compared to those people at Alabama, Clemson, and Georgia,” and it was “very

similar.”80 But Plaintiff’s claim is not that she was underpaid or her salary was otherwise

unfair—rather, her claim is that she was offered a promotion, but Defendant retaliated

against her for her Title IX activity by failing to offer her a raise at the same time. As

described above, there was sufficient evidence presented at trial to permit reasonable

jurors to make “reasonable inferences”81 in favor of Defendant. Quite the opposite of the

“strong, overwhelming evidence that shows a reasonable jury could not reach the opposite

conclusion,”82 the Court finds the evidence supports the jury’s determination that

Plaintiff’s promotion without pay was not an act of retaliation. The Court will not grant

judgment as a matter of law that Plaintiff’s promotion without a pay raise was an act of

76 R. Doc. 555-5 at p. 65.

77 Id. at pp. 65–66.

78 R. Doc. 555-1 at p. 16.

79 R. Doc. 600 at pp. 149–50.

80 Id. at p. 150.

81 Burgers Ozark, 263 F.3d at 455 (cleaned up).

82 Gaddy, 446 F. Supp. 3d at 149.

Title IX retaliation.

C. The Court will not grant Plaintiff a new trial on her Title IX

retaliation claims.

Regarding her Title IX claims, Plaintiff repeatedly urges this Court to grant her a

new trial because “the weight of the evidence is against the jury’s verdict” and what

evidence does favor Defendant, certain witness testimony, is “not credible.”83 Because

both arguments fail, the Court will not grant Plaintiff a new trial on her Title IX retaliation

claims.

First, as discussed at length above, Defendant elicited ample testimony to support

the jury’s determination that Plaintiff’s termination and promotion without a raise were

not Title IX retaliation. In her own motion, Plaintiff offers a conclusory summary of that

evidence and further alleges that “Plaintiff testified Ausberry told her she would never be

promoted because” she made a Title IX report.84 Ausberry, however, testified there was

“[n]o truth to that,” and further testified Plaintiff “never even brought up Title IX” to

him.85 Plaintiff argues “[t]he weight of the evidence shows Plaintiff was the only employee

who was promoted in athletics [at the time of her promotion] who did not receive a pay

increase.”86 But this evidence does not show, and Plaintiff does not explain why, this is an

act of Title IX retaliation. Plaintiff argues “Defendant produced no evidence as to who it

compared Plaintiff’s salary to before denying her a pay increase,”87 but this is wrong twice

over: Ausberry testified that Plaintiff’s salary was compared to other comparable

administrators in the Southeastern Conference,88 and Plaintiff was not denied a pay

83 R. Doc. 555-1 at pp. 30–31.

84 R. Doc. 555-1 at p. 30; R. Doc. 555-5 at p. 64.

85 R. Doc. 600 at pp. 108–09.

86 R. Doc. 555-1 at p. 30.

87 Id. at p. 31.

88 R. Doc. 600 at p. 150.

increase, because the evidence shows she asked for a promotion without one.89

Plaintiff does not reckon with the evidence against her; instead, she cites only the

evidence she believes favors her and insists it entitles her to a new trial. But “new trials

should not be granted on evidentiary grounds ‘unless, at a minimum, the verdict is against

the great—not merely the greater—weight of the evidence’”90 Given the volume of

evidence supporting Defendant’s case and the jury’s verdict, the Court does not find that

the verdict was against the great weight of the evidence. Further, the jury’s verdict is

“clearly within the universe of possible awards which are supported by the evidence.”91 A

new trial is not warranted on evidentiary grounds.

Second, Plaintiff attempts to discredit the evidence favoring the jury’s verdict by

asking this Court to disregard “any and all”92 testimony by five different witnesses—

Miriam Segar, Verge Ausberry, Scott Woodward, Brian Kelly, and Frank Wilson—whose

testimony supports Defendant’s case.93 The Court refuses the invitation. “Whether to find

the witnesses’ testimony persuasive or to reject any part or all if it [is] a credibility call for

the jury. The Court must defer to the trier of fact with respect to issues of conflicting

testimony, weight of the evidence, and the credibility of the witnesses.”94 As Defendant

correctly puts it: “[t]he jury’s right to assess credibility is so well-established that it is

frivolous for Plaintiff to have advanced this argument.”95

The Court will not grant a new trial on Plaintiff’s Title IX retaliation claims.

II. The Court will not grant Plaintiff judgment as a matter of law or a new

trial on her Title VII retaliation and hostile work environment claims.

89 R. Doc. 555-5 at p. 56; R. Doc. 555-10 at pp. 101–02.

90 Shows, F.2d at 930 (citations omitted).

91 Gaddy, 446 F. Supp. 3d at 149.

92 R. Doc. 555-1 at pp. 31–34.

93 Id.

94 Jackson v. Virginia, 443 U.S. 307, 319 (1979).

95 R. Doc. 574 at p. 21.

Title VII prohibits an employer from taking adverse employment action against an

employee because she engages in a protected activity.96 As a result, to establish a prima

facie case of retaliation under Title VII, a plaintiff must show that: (1) she participated in

an activity protected under the statute; (2) her employer took an adverse employment

action against her; and (3) a causal connection exists between the protected activity and

the adverse action.97 “Protected activity is defined as opposition to any practice rendered

unlawful by Title VII, including making a charge, testifying, assisting, or participating in

any investigation, proceeding, or hearing under Title VII.”98 The filing of an EEOC charge

is a protected activity.99

To establish a claim of hostile work environment on the basis of race or sex, “a

plaintiff must show 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.’”100

As with Plaintiff’s Title IX retaliation claims, Defendant’s response in opposition

to Plaintiff’s Title VII retaliation claims focuses on whether she has established the

causation element: whether Plaintiff was terminated or received a promotion without pay

because she engaged in Title VII protected activity when she filed an EEOC complaint in

96 Joseph v. Phillips, 2014 WL 5429455 at *3 (E.D. La. Oct. 24, 2014).

97 Feist v. La. Dep’t of Justice, 730 F.3d 450, 454 (5th Cir. 2013) (citing McCoy v. City of Shreveport, 492

F.3d 551, 556-57 (5th Cir. 2007)).

98 Ackel v. Nat'l Commc'ns, Inc., 339 F.3d 376, 385 (5th Cir. 2003) (quoting Green v. Administrators of

Tulane Educ. Fund, 284 F.3d 642, 657 (5th Cir. 2002), as amended on denial of reh'g and reh'g en banc

(Apr. 26, 2002)).

99 Rainey v. Fannie Mae, 46 F. App'x 732 (5th Cir. 2002) (citing Green v. Administrators of Tulane Educ.

Fund, 284 F.3d 642, 657 (5th Cir. 2002), as amended on denial of reh'g and reh'g en banc (Apr. 26, 2002)).

100 West v. City of Houston, 960 F.3d 736, 741–42 (5th Cir. 2020) (quoting Ramsey v. Henderson, 286 F.3d

264, 268 (5th Cir. 2002)).

April 2021.101 As with Plaintiff’s Title IX retaliation claims, Plaintiff agrees “the only issue

before [t]he Court” on her Title VII claims is “whether Plaintiff was terminated for

engaging in protected activity.”102 As to Plaintiff’s hostile work environment claim, the

Board argues that the testimony of its witnesses provided ample basis for the jury to

determine that Plaintiff was not subject to a hostile work environment. The Court

addresses each argument in turn.

A. The Court will not grant Plaintiff judgment as a matter of law that

her termination or promotion without pay increase were Title

VII retaliation.

As Plaintiff’s arguments concerning judgment as a matter of law on her Title VII

claims are substantially identical to those she made concerning her Title IX claims, the

Court rejects them for the same reasons.103Plaintiff again argues that the decision to

terminate her was made because of her filing an EEOC complaint, protected activity under

Title VII, and that her promotion without pay was similarly retaliation for that protected

activity. As the Court discussed above, there was sufficient evidence presented at trial to

permit reasonable jurors to make “reasonable inferences”104 in favor of Defendant on

Plaintiff’s Title VII claims. Quite the opposite of the “strong, overwhelming evidence that

shows a reasonable jury could not reach the opposite conclusion,”105 the Court finds the

evidence supports the jury’s determination that Plaintiff’s termination and promotion

without pay increase were not acts of Title VII retaliation.

B. The Court will not grant Plaintiff judgment as a matter of law that

she was subject to a Title VII hostile work environment.

101 R. Doc. 574 at pp. 10–11.

102 R. Doc. 576 at p. 5.

103 See Parts I-A and I-B, supra.

104 Burgers Ozark, 263 F.3d at 455 (cleaned up).

105 Gaddy, 446 F. Supp. 3d at 151.

In support of her argument for judgment as a matter of law on her Title VII hostile

work environment claim, Plaintiff alleges each of the required elements is met.106 It is

undisputed that Plaintiff, a black woman, is a member of two protected classes. She argues

that Verge Ausberry’s conduct toward her, based on her race and gender, was severe and

pervasive, affected Plaintiff’s employment, and that Defendant was aware of this hostile

work environment.107

Yet as Defendant correctly argues, conflicting testimony was presented at trial, and

the jury is not bound to believe Plaintiff’s version of the facts and conclusions drawn

therefrom. On the witness stand, when Ausberry was asked whether he ever called

Plaintiff “an angry black woman,” as she alleges, he said: “That never happened,” further

adding that phrase is “not in [his] vocabulary.”108

Further, Ya’el Lfoton and Miriam Segar testified that race and gender did not seem

to be a factor in Plaintiff’s and Ausberry’s interactions. Asked directly whether “the

conflicts that [she] observed between [Plaintiff] and [Ausberry] were based on” the pair’s

“races” or “genders,” Lofton flatly answered, “No.”109 Lofton explained that in her view,

Plaintiff “is a very strong, proud woman and she knows her job . . . .and did it well,” and

Ausberry “was very prominent and boisterous and in charge of his domain too.”110

“Sometimes when you get two powerful people” like Plaintiff and Ausberry, Lofton

testified, “you’re going to tend to butt heads.”111 Segar, recalling a 2014 incident when

Ausberry became “frustrated” and “angry” at Plaintiff for “not knowing” who she had

106 R. Doc. 555-1 at pp. 19–21.

107 Id.

108 Id. at p. 99.

109 R. Doc. 584 at pp. 348–49.

110 Id. at p. 349.

111 Id.

given an all-access campus pass to, was asked whether she viewed the event “based on

[Plaintiff’s] race” or “based on her gender.” Segar, like Lofton, answered, “No.”112

Plaintiff testified she “met with” Miriam Segar to report her allegations against

Frank Wilson, and when asked by defense counsel whether she “reported Frank Wilson’s

conduct to Verge Ausberry,” Plaintiff answered, “I did.”113 Accordingly, in her motion,

Plaintiff argues Defendant knew about Wilson’s harassment, and when Wilson was

rehired to join Brian Kelly’s staff, it was sufficiently “humiliating” to her to constitute a

hostile work environment of which Defendant was aware.114

But at trial, Segar and Ausberry both testified that Plaintiff never told them of any

misconduct by Wilson nor did they ever observe any such conduct. Asked directly, “Did

[Plaintiff] ever report to you that Frank Wilson walked into her office and pulled his penis

out and asked her to touch it,” Segar replied, “Absolutely not.”115 Asked again, “[Plaintiff]

never reported that to you?” Segar testified, “I would not forget that. No.”116 Asked more

generally, “Did anybody else report to you about Frank Wilson’s conduct,” Segar again

answered, “No.”117 Verge Ausberry, asked whether he “witness[ed] any sexual misconduct

by [Frank] Wilson toward [Plaintiff],” testified, “No.”118 Asked if Plaintiff “ever [told

Ausberry] anything to suggest that Frank Wilson had come in and unzipped his pants and

exposed his penis to [Plaintiff],” Ausberry testified, “Not at all.”119

The Court cannot grant Plaintiff judgment as a matter of law on this issue simply

because the jury disbelieved her claims. When weighing directly conflicting testimony, as

112 R. Doc. 585 at pp. 289–91.

113 R. Doc. 599 at p. 23.

114 R. Doc. 555-1 at pp. 21–22.

115 R. Doc. 585 at p. 217.

116 Id.

117 Id. at p. 218.

118 R. Doc. 600 at p. 71.

119 Id. at p. 72.

the jury was required to do in this case, it is the jury’s province to make credibility

determinations and decide what deference to afford each witnesses’ version of events.120

Lastly, in support of her hostile work environment claim, Plaintiff marshals

excerpts from the Husch Blackwell Report. Relevant to her allegations against Ausberry,

Plaintiff quotes a portion of the report stating that “several witnesses . . . have seen

Ausberry yell and scream at [Plaintiff], call her profanities, and do other acts of

harassment.”121 The testimony from Segar and Lofton recounted above did not directly

refute whether this occurred, but that testimony did offer a different view of the incidents,

as occurring between two “prominent” and “powerful” people who would “butt heads.”122

Plaintiff wrongly characterizes the Husch Blackwell Report as “uncontradicted”

evidence.123 Witnesses offered a different characterization of Plaintiff’s working

environment than the Husch Blackwell Report. Whether to find the Husch Blackwell

Report “persuasive or to reject any part or all of it [is] a credibility call for the jury.”124 On

this issue, it appears the jury, in light of other testimony, did not view the relevant

behavior described in the Husch Blackwell Report to be credible or to rise to the level of

a Title VII hostile work environment.

Plaintiff is not entitled to judgment as a matter of law absent “strong,

overwhelming evidence that shows a reasonable jury could not reach the opposite

conclusion.”125 As the testimony outlined above shows, instead, at trial, Defendant put

forth a “legally sufficient evidentiary basis”126 for the jury’s determination that Plaintiff

120 See, e.g., Woods v. Cain, 2008 WL 2067002, at *7 (E.D. La. May 13, 2008) (citations omitted).

121 R. Doc. 555-1 at p. 21 (citing R. Doc. 550-58 at p. 78).

122 R. Doc. 584 at p. 349.

123 R. Doc. 555-1 at p. 6.

124 Bickham v. Vannoy, 2022 WL 19407173, at *14 (E.D. La. Sept. 16, 2022).

125 Gaddy, 446 F. Supp. 3d at 151.

126 Id. (citation and internal ellipsis omitted).

was not subject to a Title VII hostile work environment. On that evidentiary basis, the jury

made “reasonable inferences” supporting Defendant’s position.”127 The Court will not

grant Plaintiff judgment as a matter of law that she suffered a Title VII hostile work

environment.

C. The Court will not grant Plaintiff a new trial on her Title VII

claims.

Plaintiff does not make a convincing argument in favor of a new trial on her Title

VII claims. It is inchoate in places128 and, in others, a restatement of her argument for a

new trial on her Title IX claims.129 As detailed above, ample testimony was introduced to

provide the jury a sufficient evidentiary basis to determine that Defendant was not liable

for Title VII retaliation or hostile work environment.130 The jury weighed the credibility

of each witness and rendered a verdict accordingly. Contrary to Plaintiff’s conclusory

assertions otherwise,131 the verdict was “clearly within the universe of possible awards

which are supported by the evidence,”132 and thus not against the great weight of the

evidence. The Court will deny Plaintiff’s motion for a new trial on her Title VII claims.

III. The Court does not find that a new trial is warranted because of

Woodward’s communication with the jury or defense counsel’s

statements during opening statement and closing argument.

A. Woodward’s communication with certain jurors does not

warrant a new trial.

“It is well settled that a district court has broad discretion in deciding whether to

grant a new trial for juror misconduct.”133 “Because the context in which alleged juror

127 Burgers Ozark, 263 F.3d at 455 (citation omitted).

128 See, e.g., R. Doc. 555-1 at p. 35.

129 Id. at pp. 34–35.

130 See Part II, supra.

131 R. Doc. 555-1 at pp. 34–35.

132 Gaddy, 446 F. Supp. 3d at 149 (E.D. La.2020) (citing Narcisse v. Illinois Cent. Gulf R. Co., 620 F.2d 544,

547 (5th Cir. 1980)).

133 Carson v. Polley, 689 F.2d 562, 580 (5th Cir. 1982).

misconduct arises is different in every case, whether a new trial should be granted must

be decided on an ad hoc basis.”134 “In this circuit, a defendant seeking a new trial based

on juror misconduct must prove (1) misconduct by at least one juror that (2) prejudiced

the defendant to the extent that it undermined the fairness of the trial.”135 “A presumption

of prejudice arises when the jury is ‘tainted by outside influence,’ but not when “jurors

themselves have violated an instruction of the court.”136

Relevant to Plaintiff’s arguments in the instant motion, though the Fifth Circuit

has found it proper to grant a new trial where a juror engages in “long” and “deliberate

conversations” with a third party connected to the case, the court has been careful to

distinguish between “deliberate conversations” and “inadvertent exchanges or

greetings.”137 While “deliberate conversations” between jurors and third parties may

demand a new trial, mere “inadvertent exchanges or greetings” do not.138

On the first day of trial, the Court delivered its standard instructions to the

empaneled jury. These instructions included the following:

All of us were trained to extend to acquaintances, perhaps even to strangers,

a “Good Morning,” a “Hello,” or other neighborly greeting. You should not

engage in any such exchanges with the parties, their counsel, or any other

persons connected with this trial. And you should not take offense . . . when

such persons do not extend such a greeting to you. The reason that such

exchanges are not indulged in is because, although they seem innocent, they

could nonetheless give the impression of a lack of impartiality. And creating

an impression of being partial is almost as bad as being biased, and that

should be avoided.

All of you should realize that if it is called to my attention that these

instructions have been violated, I will have no alternative but to take

appropriate action. I’m confident that in light of the instructions I’ve given

you, this will not be required.139

134 Garcia v. Murphy Pac. Marine Salvaging Co., 476 F.2d 303, 306 (5th Cir. 1973).

135 United States v. Villalobos, 601 F. App'x 274, 277 (5th Cir. 2015).

136 Gaddy, 446 F. Supp. 3d at 159 (quoting Villalobos, 601 F. App'x at 277).

137 Leger v. Westinghouse Elec. Corp., 483 F.2d 428 (5th Cir. 1973).

138 Id.

139 R. Doc. 583 at pp. 117–18.

On the fourth day of trial, Plaintiff’s counsel alerted the Court to possible non-

verbal communication between some jurors and Scott Woodward, LSU Athletic

Director.140 In a sidebar, Plaintiff’s counsel told the Court that “when [Woodward] walked

in,” a juror “gave him a thumbs-up,” and Plaintiff’s counsel “believe[d] [Woodward]

acknowledged that thumbs-up.”141

Once alerted, the Court heard sworn testimony, the transcript of which is under

seal, from those who alleged they saw the thumbs-up: Plaintiff and Kennedy Ross and

De’Naesha Mitchell, two assistants to Plaintiff’s counsel.142 The Court also heard sworn

testimony from four jurors Plaintiff believed had non-verbal communications with

Woodward.143 One juror told the Court that during a sidebar while Woodward was

testifying, as white noise played over the courtroom speakers, the juror noticed

Woodward “looked confused” about the source of the noise.144 The juror pointed to the

ceiling and speakers and indicated “[t]hat’s normal” to Woodward.145

Considering the result of the Court’s investigation, the Court excluded the juror

who admitted to gesturing to Woodward but allowed the others to remain on the jury.146

The Court instructed both parties to direct their witnesses not to attempt to communicate

in any way with the jury for the remainder of trial. Echoing the first-day instructions, the

Court again reminded the remaining jurors “not to have any communication of any kind

with any of the parties in the case: the witnesses, the attorneys, [or] anybody involved in

140 R. Doc. 586 at p. 62.

141 Id.

142 R. Doc. 587 at p. 4 (sealed).

143 Id. at pp. 23–34.

144 Id. at pp. 24–25.

145 Id. at pp. 24–25. It is not clear from the transcript whether the juror mouthed these words to Woodward

or the juror was simply describing his gesture to the Court as representing the phrase “That’s normal.”

146 Id. at pp. 38–39.

the case,” emphasizing that though the jurors were “to look at the witness and to listen

carefully to the testimony,” jurors should not “interact in any way with any witness.”147

Nevertheless, in her motion, Plaintiff argues that these communications “pierced the

‘virtual vacuum’ that should surround the jury and undermined” Plaintiff’s right to a fair

trial.148 Accordingly, Plaintiff asks the Court to grant a new trial.

The Fifth Circuit has rejected post-verdict claims of juror misconduct when “the

trial judge—who had broad discretion to remedy the problem—took corrective action to

ensure that there would be no” further improper juror communication.149 In this case, the

extent and meaning of the gesture was disputed, but neither counsel nor any witness

described any “long” or “deliberate conversations.”150 Instead, the communications were

broadly described as the kind of “exchanges or greetings”151 that do not merit a new trial

absent more severe allegations of juror misconduct or prejudice to the Plaintiff’s right to

a fair trial. Due to the nature of the communication, because the issue was quickly

remedied during trial by the removal of the juror who directly communicated with

Woodward, and in light of the Court’s instruction to the remaining jurors,152 Plaintiff’s

request for a new trial on these grounds is denied.

B. The Court will not grant a new trial because of defense counsel’s

statements during opening statement and closing argument.

Lastly, Plaintiff seeks a new trial because of defense counsel’s comments in

opening and closing argument, which Plaintiff characterizes as describing her, her

147 R. Doc. 586 at p. 108.

148 R. Doc. 555-1 at p. 36 (citing United States v. Harry Barfield Co., 359 F.2d 120, 124 (5th Cir. 1966)).

149 Hebert v. Rogers, 2016 WL 8291110, at *27–28 (E.D. La. Nov. 14, 2016), report and recommendation

adopted sub nom. Herbert v. Rogers, CV 15-4950, 2017 WL 679528 (E.D. La. Feb. 21, 2017), aff'd sub nom.

Hebert v. Rogers, 890 F.3d 213 (5th Cir. 2018).

150 See R. Doc. 587.

151 Leger, 483 F.2d at 428.

152 R. Doc. 587 at pp. 38–39.

attorneys, and her publicist as “hustlers.”153 For accuracy, the Court observes that defense

counsel described Plaintiff’s case and allegations as “a hustle,” but did not describe

anyone as a “hustler.”154 Plaintiff’s motion makes serious allegations about the

consequences of defense counsel’s arguments, saying it was an “offensive and

prejudicial . . . characterization” that was an “obvious and blatant appeal to racial and

ethnic prejudice.”155 Plaintiff’s counsel did not object to defense counsel’s comments at

the time they were delivered.

“A motion for new trial premised on improper arguments by counsel should only

be granted when improper closing argument irreparably prejudices a jury verdict or a jury

fails to follow instructions.”156 “To justify reversal based on improper comments of

counsel, the conduct must be such as to gravely impair the calm and dispassionate

consideration of the case by the jury.”157 Therefore, closing argument must go far beyond

the bounds of accepted advocacy before a court should grant a new trial.158 As the Fifth

Circuit has instructed, “[a] trial judge is generally better able than an appellate court to

evaluate the prejudice flowing from improper jury arguments.”159 “A new trial is

warranted only if [the party opposing the jury arguments] shows that it was sufficiently

prejudiced considering all the facts and circumstances of the case.”160 Furthermore, in

deciding whether to grant a new trial, the Court should consider “the entire argument . . .

153 R. Doc. 555-1 at pp. 36–37.

154 R. Doc. 555-3 at pp. 5–6.

155 R. Doc. 555-1 at p. 38 (quoting Rojas v. Richardson, 703 F.2d 186, 192 (5th Cir. 1983) opinion set aside

on reh'g, 713 F.2d 116 (5th Cir. 1983)).

156 Baisden v. I’m Ready Prods., Inc., 693 F.3d 491, 509 (5th Cir. 2012) (internal quotation marks omitted)

(citing Nissho-Iwai Co., Ltd. v. Occidental Crude Sales, Inc., 848 F.3d 613, 619 (5th Cir. 1988)).

157 Dulin v. Bd. of Comm’rs of Greenwood Leflore Hosp., 586 F. App’x 643, 649 (5th Cir. 2014) (internal

quotation marks omitted) (quoting Dixon v. Int’l Harvester Co., 754 F.2d 573, 585 (5th Cir. 1985)).

158 Edwards v. Sears, Roebuck & Co., 512 F.2d 276, 284 (5th Cir. 1985). See also Dulin, 586 F. App’x at 649.

159 Baisden, 693 F.3d at 509 (citing Caldarera v. E. Airlines, Inc., 705 F.2d 778 (5th Cir. 1983)).

160 Facille v. Madere & Sons Towing, LLC, No. 13-6470, 2015 WL 5017012, at *10 (E.D. La. Aug. 21, 2015)

(citing United States v. Jefferson, 258 F.3d 405, 412 (5th Cir. 2001)).

within the context of the court's rulings on objections, the jury charge, and any corrective

measures applied by the trial court.”161

Further, the Fifth Circuit has held that “[i]mproper argument may be the basis for

a new trial where no objection has been raised only where the interest of substantial

justice is at stake. Absent a timely objection, reversal is generally not warranted based on

counsel's improper statements alone.”162 Rather, the court should consider “the

comments of counsel, the counsel’s trial tactics as a whole, the evidence presented, and

the ultimate verdict.”163

The Court does not find that anything in defense counsel’s “trial tactics as a whole,

the evidence presented, and the ultimate verdict”164 favors granting a new trial when

considered alongside defense counsel’s closing argument. Plaintiff brought a variety of

claims alleging she was terminated and otherwise discriminated against because of her

race, sex, and legally protected activity. Defendant put on its own case to disprove

Plaintiff’s allegations, which defense counsel characterized as “a good story”—a

“hustle.”165 As discussed above concerning Plaintiff’s Title IX and Title VII claims,

Defendant presented ample evidence to counter Plaintiff’s allegations. The Court does not

find that defense counsel’s comments during opening statement and closing argument

worked to “gravely impair the calm and dispassionate consideration of the case by the

161 Westbrook v. Gen. Tire & Rubber Co., 754 F.2d 1233, 1238 (5th Cir. 1985).

162 Alaniz v. Zamora-Quezada, 591 F.3d 761, 778 (5th Cir. 2009) (citations and internal quotation marks

omitted). See also Johnson v. Watkins, 803 F. Supp. 2d 561, 582 (S.D. Miss. 2011); Welch v. All Am. Check

Cashing, Inc., No. 3:13CV271TSL-JCG, 2015 WL 4066495, at *11 (S.D. Miss. July 2, 2015) (citing Nissho-

Iwai Co., 848 F.2d at 619 (finding that the plaintiff’s failure to object to impropriety of closing argument

barred it “‘from urging the improper arguments as grounds for a new trial after the jury had returned its

verdict’”); EON Corp. IP Holdings, LLC v. Landis+Gyr Inc., No. 6:11-CV-317-JDL, 2014 WL 6466663, at

*3 (E.D. Tex. Nov. 14, 2014) (finding that defendant “waived its opportunity to object to the alleged

impropriety of EON’s closing arguments when it remained silent and let the case go to the jury”)); Pellegrin

v. Larpenter, No. Civ. A. 94-1410, 1995 WL 555595, at *1 (E.D. La. Sept. 15, 1995).

163 Mills v. Beech Aircraft, 886 F.2d 758, 765 (5th Cir. 1989).

164 Id.

165 R. Doc. 555-1 at p. 36.

jury,”!6° which heard six days of testimony from both sides before deliberating on a

verdict. Plaintiff has not established that the jurors’ deliberations were tainted by defense

counsel’s comments.

The Court finds that a new trial is “not warranted,” as Plaintiffs argument for new

trial concerns “improper statements alone,” not further and more pervasive conduct

throughout trial. Considering “the comments of counsel, the counsel’s trial tactics as a

whole, the evidence presented, and the ultimate verdict,”'*7 Plaintiffs request for a new

trial is again denied.

CONCLUSION

For the foregoing reasons;

IT IS ORDERED that Plaintiffs Renewed Motion for Judgment as a Matter of

Law, or, in the alternative, a New Trial‘©8 is DENIED.

New Orleans, Louisiana, this 7th day of May, 2024.

Sein —_

SUSIE MOR

UNITED STATES DISTRICT JUDGE

166 Dulin v. Bd. of Comm'rs of Greenwood Leflore Hosp., 586 F. App’x 643, 649 (5th Cir. 2014) (internal

quotation marks omitted) (quoting Dixon v. Intl Harvester Co., 754 F.2d 573, 585 (5th Cir. 1985)).

167 Mills v. Beech Aircraft, 886 F.2d 758, 765 (5th Cir. 1989). See also Alaniz, 591 F.3d at 778.

168 R, Doc. 555.

26

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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