Mota v. University of Texas Houston Health Science Center

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-20009

LUIS F. MOTA,

Plaintiff-Appellee,

versus

THE UNIVERSITY OF TEXAS HOUSTON HEALTH SCIENCE CENTER; ET AL.,

Defendants,

THE UNIVERSITY OF TEXAS HOUSTON HEALTH SCIENCE CENTER,

Defendant - Appellant.

Appeal from the United States District Court

for the Southern District of Texas

August 9, 2001

Before HIGGINBOTHAM and BENAVIDES, Circuit Judges, and DUPLANTIER,*

District Judge.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

This case presents claims under Title VII of retaliation and

sexual harassment by a member of the same sex. A professor at the

University of Texas Houston Health Science Center filed suit,

alleging that he was harassed by his supervisor. He also claimed

that the University retaliated against him for lodging complaints

*

District Judge of the Eastern District of Louisiana, sitting

by designation.

with the University and the EEOC. Following a jury trial, the

district court entered judgment for the plaintiff on these claims,

awarding compensatory damages, back pay, front pay, attorney's

fees, and costs.

The University challenges the court's denial of its motion for

judgment as a matter of law, asserting error on an array of legal

and factual grounds. The University argues that the jury's

retaliation verdict was not supported by an adverse employment

action and lacked an adequate basis in fact; that the alleged acts

of harassment were not sufficiently severe or pervasive; that the

jury erred in finding that the University had not established its

affirmative defenses to the harassment claim; and that the court's

award of front pay, attorney's fees, and costs was an abuse of

discretion. We affirm the court's judgment in virtually all

respects, vacating only a portion of its award of costs.

I

Dr. Luis F. Mota, a resident alien from Caracas, began work in

1993 as a visiting professor in the Department of Periodontics at

the Dental Branch of the University of Texas Houston Health Science

Center.1 He began his first year as a tenure-track professor with

the University in 1995. At all relevant times, Dr. Raul Caffesse

was the head of the Periodontics Department at the Dental Branch.

1

The University is a state educational system. See Tex. Educ.

Code §§ 65.02(a)(9) (Vernon's 2001).

2

Caffesse and Mota knew each other prior to Mota's term at the

University. Mota's parents, who were also periodontists, knew

Caffesse and would receive him into their home on social visits.

Likewise, Caffesse would entertain Mota's parents when they

traveled to the United States. After Mota moved to Houston, he

continued this social relationship with Caffesse and Caffesse's

family.

Caffesse's stature as a renowned periodontist prompted Mota to

apply for a position at the University. Caffesse, who had an

endowed professorship named after him at the Dental School, was

considered to be among the ten most famous academic periodontists

in the world.

In June 1996 Mota and Caffesse participated in a three-day

conference in Monterrey, Mexico. The event was jointly sponsored by

the Dental School and the University of Nuevo Laredo. Although Mota

was not originally scheduled to attend, Caffesse told Mota several

days before the trip that he should accompany him as a

representative of the Dental School. Caffesse arranged for them to

share the same hotel room.

Mota later testified that Caffesse engaged in unwanted and

offensive sexual conduct toward him while they were in the hotel

room. During their time in Mexico, Caffesse allegedly told Mota

that he had to "get along with him and that people who worked with

him had to get along with [him] and that he only wanted to know

[Mota] better." Caffesse also suggested that Mota's immigration

3

status could be jeopardized if he no longer worked at the

University.

Following the trip to Monterrey, Caffesse promised Mota that

the incidents which occurred in Mexico would not happen again. He

also told Mota that he had arranged for him to give a presentation

at another seminar and that Mota would receive a $500 honorarium.

Mota asserts that he took the honorarium money and purchased a

present for Caffesse in excess of the $500. According to Mota, the

gift was motivated by his desire not to be indebted to Caffesse.

Despite Caffesse's assurances, incidents of harassment

allegedly continued. Mota later testified that Caffesse engaged in

unwanted and offensive sexual advances at conferences he attended

in Philadelphia, Breckenridge, and Orlando. Caffesse also allegedly

engaged in other acts of sexual harassment while he and Mota were

in Houston. In the face of Caffesse's advances, Mota canceled

conference engagements which he knew Caffesse would also attend.

The record also supports the inference that Caffesse

threatened Mota. During one conference, Mota refused to room with

Caffesse. Caffesse angrily raised his hand in the air and told Mota

that he could not do that to him and could not work in the

department if Mota kept rejecting him. On another occasion,

Caffesse allegedly told Mota that the University would defend

Caffesse—as it allegedly had in the past—in any type of complaint

brought against him. Caffesse further informed Mota that Caffesse

disliked certain persons at the school, and that he had "helped

4

them to leave" the school. He regularly admonished Mota not to tell

anyone of his advances.

On April 23, 1997, Mota submitted a detailed, written sexual

harassment complaint against Caffesse to the University. According

to Mota, he and a member of the Sexual Harassment Board had agreed

that the investigatory panel would not include persons who had past

dealings with Caffesse or who were associated with the Dental or

Medical schools. Prof. George Stancel was appointed chairman of the

three-member panel. Stancel was a medical school professor who

apparently had worked closely with the spouse of a professor who

worked regularly with Caffesse. Stancel later testified that he was

aware of Caffesse's stature at the Dental School and that he had

met him on at least one occasion.

The members of the panel concluded that they were unable to

determine whether or not Caffesse had violated the University's

sexual harassment policy. During the investigation, Caffesse

admitted to the panel that he had sexually propositioned Mota on

two trips following the Mexico trip. Another member of the

University testified before the panel that "if you cross Caffesse,

you are definitely in trouble. In other words, if you tell him 'no'

you better watch out."

Although Mota had recorded conversations with Caffesse, he did

not submit these to the panel. The panel never asked for such

evidence; nor was the panel aware of its existence. Mota later

5

played the tapes to the jury in the trial before the district

court.

Upon issuing its decision, the panel notified Mota and

suggested that, if he had new evidence, he could request a

reopening of his case. Despite the evidence contained on the tapes,

Mota did not ask the panel to reopen the case. Four days after the

decision, Mota requested "protection against further harassment and

retaliation" by Caffesse. In response, Caffesse told the Dean of

the Dental School, Dr. Ronald Johnson, that he was willing to work

out an arrangement acceptable to Mota, under which the two

professors could continue working in the Periodontics Department.

Dean Johnson did not learn of Mota's University complaint

until July 16, 1997, when Mota sent him a courtesy copy of a

complaint he had filed with the EEOC.2 University policy prohibits

the panel from notifying the appropriate administrative authority

in the University that a complaint has been filed. According to M.

David Low, the University president, Johnson was the person

responsible for protecting Mota from retaliation.

In a meeting with Caffesse and Mota on July 23, 1997, Dean

Johnson asked Mota to write a memo describing parameters under

which he would feel comfortable working in the Department. When

Mota declined to do so, Johnson instructed Caffesse to draft the

2

Mota filed a complaint with the EEOC on July 14, 1997.

6

document. The next day, Caffesse sent Mota a letter outlining

guidelines.

In response to the charges of retaliation contained in Mota's

EEOC complaint, the University hired an outside attorney to conduct

an investigation. The University contends that Mota did not

cooperate with the attorney, whose April 9, 1998 report concluded

that no retaliation had occurred.

Mota does not allege that any further acts of sexual

harassment occurred after the filing of his April 1997 complaint.

He contends, however, that the University retaliated against him.

First, he asserts that, in the wake of his complaint, Caffesse

arranged Mota's schedule so as to bring them into constant contact.

Mota alleges that Caffesse made this scheduling decision in the

face of Mota's objections. When Caffesse relented and changed

Mota's schedule, he reassigned him from some of the desirable

graduate clinics to the less prestigious undergraduate clinics.

On August 20, 1997, Johnson and Low denied Mota a $2,500

stipend for serving as the Dental School clinical coordinator. Mota

had been the clinical coordinator since late 1995. However, the

University contends that Mota had not performed the duties of

clinical coordinator since September 1996. The University argues

that the discontinuation of Mota's stipend resulted from an inquiry

sent by Mota to Johnson, in which Mota stated that he continued to

receive supplemental pay for the clinical coordinator position.

Johnson testified that he stopped payment simply to correct an

7

administrative oversight, as the University would not pay someone

who was not doing the work required by the position.

On September 10, 1997, the University denied Mota's request

for a paid six-month leave of absence. President Low denied Mota's

request, yet authorized six months of unpaid leave beginning

November 3, 1997.3 Mota was to return to work on May 1, 1998.

While Mota was on leave, he began looking for another job and

visited his parents in Venezuela several times. He also requested

that the University grant him access to his office, a microscope,

and the library to allow him to conduct research while on leave.

Johnson refused these requests, denying him access to a microscope

and preventing him from entering his office. Johnson further

ordered Mota's name removed from the University letterhead and from

his office. He prevented Mota from serving on mock oral boards and

thesis committees. He also refused to allow him to teach a seminar

in Spain, through which Mota could have earned $2,000. Mota also

alleges that Johnson and other University professors ostracized

him, warning students not to associate with him. Johnson allegedly

told one graduate student that if he ever caught the student in

contact with Mota, the University would disqualify him as a

student.

3

During the first twelve weeks of leave, Mota apparently

received benefits through the Family and Medical Leave Act.

Johnson described the balance of Mota's leave period as

"administrative leave."

8

In an undated letter, Mota requested an additional six months

of unpaid personal leave. Low and Johnson refused the requested

extension, informing Mota that they would consider his failure to

resume work after May 26, 1998 to be a resignation from the

faculty. This letter denied the extension ostensibly because Mota

gave no reasons for the request. In his letter, Mota had cited his

hope for a "mutually beneficial resolution." Low and Johnson stated

that an extension would not facilitate this objective and would not

be in the best interests of either Mota or the University. When

Mota did not return to work on May 26, 1998, the University

terminated him. Three months later, Mota accepted a lower-paying

position with the University of Pittsburgh.

On April 30, 1998, Mota filed suit against the University in

the United States District Court for the Southern District of

Texas, alleging sexual harassment and retaliation. Mota

subsequently amended his complaint to add a claim against Caffesse,

in his individual capacity, for defamation and intentional

infliction of emotional distress. The trial judge ultimately

dismissed the intentional infliction of emotional distress claim.

After Caffesse and Mota entered into a settlement agreement for

$290,000, the court then dismissed all remaining claims against

Caffesse.

Following a six-day trial, a jury returned a verdict against

the University. The jury found that Mota had been subjected to

unlawful sexual harassment; that the harassment did not result in

9

a tangible employment action against Mota; that the University

failed to exercise reasonable care to prevent and promptly correct

harassing behavior towards Mota; that Mota did not unreasonably

fail to take advantage of preventive or corrective opportunities

made available by the University; and that the University

retaliated against Mota. The jury awarded $15,000.00 in

compensatory damages, $104,435.00 in back pay, and delivered an

advisory verdict of $328,565.00 in front pay.

In an order dated December 8, 1999, Judge Gilmore awarded

$388,367.51 to Mota for attorney's fees and expenses. The court

also awarded the judgment amount plus interest for compensatory

damages and back pay, yet reduced the jury's recommended front pay

to $194,989.00. On December 20, 1999, the court denied the

University's motion for judgment as a matter law and to amend the

judgment. The University appeals this ruling and the December 8

final judgment.

II

The University contends that the district court erred in

denying its motion for judgment as a matter of law on Mota's Title

VII retaliation claim. This Court reviews the denial of a motion

for judgment as a matter of law de novo, according to the same

standard applied by the district court.4 Judgment as a matter of

4

See Stokes v. Emerson Elec. Co., 217 F.3d 353, 356 (5th Cir.

2000).

10

law is warranted if, after viewing the record in the light most

favorable to the non-moving party, there is no "legally sufficient

evidentiary basis" for a reasonable jury to have found for the

prevailing party.5 "[T]he court should give credence to the

evidence favoring the nonmovant as well as that 'evidence

supporting the moving party that is uncontradicted and unimpeached,

at least to the extent that that evidence comes from disinterested

witnesses.'"6

To state a claim for retaliation, a plaintiff must establish

that: (1) he engaged in protected activity, as described in Title

VII; (2) he suffered an adverse employment action; and (3) a causal

nexus exists between the protected activity and the adverse

employment action.7 "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.8 "Adverse

employment actions" include only "ultimate employment decisions .

5

See id.

6

Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,

151 (2000) (quoting 9A C. Wright & A. Miller, Federal Practice and

Procedure § 2529 (2d ed. 1995)); see also id. at 150 (noting that

the standard governing motions for judgment as a matter of law

mirrors the summary judgment standard of review).

7

Arnold v. U.S. Dep't of Interior, 213 F.3d 193, 198 (5th

Cir. 2000).

8

See 42 U.S.C. § 2000e-3(a) (2001); Evans v. City of Houston,

246 F.3d 344, 352-53 (5th Cir. 2001).

11

. . 'such as hiring, granting leave, discharging, promoting, and

compensating.'"9 An employer's action does not rise to the level of

an "adverse employment action" when it fails to have more than

"mere tangential effect on a possible future ultimate employment

decision."10 To demonstrate causation, the employee "must show that

'but for' the protected activity, the adverse employment action

would not have occurred."11 If the plaintiff presents evidence

supporting the prima facie case, plus evidence that the reasons

given by the employer for the adverse employment action were

pretextual, a jury may infer the existence of retaliation.12

A

The University argues, first, that Mota can not demonstrate

the existence of an adverse employment action. Although the jury

found that Mota was subjected to sexual harassment, it determined

that the sexual harassment did not result in a "tangible employment

action." The Supreme Court has defined "tangible employment action"

as "a significant change in employment status, such as hiring,

9

Walker v. Thompson, 214 F.3d 615, 629 (5th Cir. 2000)

(quoting Dollis v. Rubin, 77 F.3d 777, 782 (5th Cir. 1995) (per

curiam)).

10

Id. at 629.

11

Seaman v. CSPH, Inc., 179 F.3d 297, 301 (5th Cir. 1999).

12

See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.

133, 148 (2000); Ratliff v. City of Gainesville, 2001 WL 736004, at

*3-*4 (5th Cir. July 17, 2001).

12

firing, failing to promote, reassignment with significantly

different responsibilities, or a decision causing a significant

change in benefits."13 A tangible employment action in most cases

inflicts direct economic harm and must involve an official act by

the company.14 In this case, the jury charge included a definition

of "tangible employment action" which substantially incorporated

these elements.15

The University asserts that a tangible employment action is

substantially equivalent to an adverse employment action. The

University points to the similarity between the type of actions

encompassed by the two categories. It contends that the jury's

finding of no tangible employment action precludes the existence of

an adverse employment action for purposes of Mota's retaliation

claim.

This argument is without merit. The jury was given a separate

instruction for retaliation, in which the court noted that an

13

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761

(1998).

14

See id. at 762-63.

15

The jury charge read in relevant part:

A "tangible employment action" means a significant change

in employment status, such as hiring, firing, failing to

promote, reassignment with significantly different

responsibilities, or a decision causing a significant

change in benefits. Such an action in most cases inflicts

direct economic harm. Tangible employment actions are the

means by which the supervisor brings the official power

of the enterprise to bear on subordinates, and require an

official act of the company.

13

adverse employment action was required. The court's explanation of

adverse employment action was similar to its previous definition of

tangible employment action.16 In finding that the University had

retaliated against Mota, however, the jury implicitly found that an

adverse employment action had been taken. Moreover, the relevant

employment action resulting from sexual harassment, as opposed to

retaliation, may differ. Retaliation occurs in response to

protected activity, whereas a tangible employment action is the

result of the harassment itself. A rational jury could have

concluded both that no tangible employment action resulted from the

harassment and that the University subsequently retaliated against

Mota for filing a complaint.

B

The University next argues that many of the actions asserted

by Mota do not rise to the level of "adverse employment actions."

Mota contends that the following events were causally linked to the

filing of his complaints with the University and the EEOC: (1) the

University placed Caffesse in charge of monitoring any further

harassment; (2) Mota was ostracized by faculty and students; (3) he

was barred from entering the Dental School; (4) Mota's name was

removed from his office door and from the University letterhead;

16

The court instructed the jury that "[a]n adverse employment

action is a significant change in employment status and includes

discharge, demotion, refusal to promote, denial of leave request,

change in compensation, or a major change in responsibilities."

14

(5) Mota was stripped of his duties as principal investigator on

certain projects; (6) the University prevented Mota from continuing

to serve on mock oral boards and on thesis committees; (7) the

University refused to allow him to teach seminars in Spain (which

would have yielded some $2,000); (8) the University ceased paying

Mota a $2,500 annual stipend; (9) the University refused to grant

Mota paid leave; (10) the University denied his request for an

extension of unpaid leave; and (11) the University treated Mota's

failure to return by May 26, 1999 as a resignation. Although some

of the preceding events do not qualify as "ultimate employment

decisions,"17 at least four of the actions allegedly taken by the

University meet this definition. Moreover, the evidence regarding

these events provides ample support for the jury's finding of

retaliation.

1

The University's discontinuation of Mota's $2,500 stipend on

August 20, 1997 is a compensation decision, thereby qualifying as

an adverse employment action.18 The University characterizes the

action as merely a "business decision,"19 contesting the jury's

17

For instance, ostracism by fellow employees does not

constitute an "ultimate employment decision." See Mattern v.

Eastman Kodak Co., 104 F.3d 702, 707-08 (5th Cir. 1997).

18

See Walker v. Thompson, 214 F.3d 615, 629 (5th Cir. 2000).

19

The University appears to concede that this event would, if

given the interpretation advocated by Mota, constitute an adverse

15

inference of retaliation. The University argues that the

"undisputed evidence" reveals that Mota had not been fulfilling the

duties of clinical coordinator since September 1996, when Dr.

Walter E. Dimmitt allegedly assumed Mota's position. However, Mota

testified that Dimmitt was given the separate position of "clinical

director," not "clinical coordinator." Mota testified that he

continued to serve as clinical coordinator until Dean Johnson and

President Low removed him from this position on August 20, 1997.

The record also contains a letter, dated August 29, 1997, in which

Mota denies having relinquished these duties. A rational jury could

infer from this evidence that the University's reasons for

discontinuing Mota's stipend were pretextual.

2

The University also argues that its denial of Mota's request

for paid leave was not causally linked to his sexual harassment

complaint.20 As the University observes, the record does not

indicate that a similarly situated employee was denied six months

of paid leave. The University implies that the causal link between

Mota's protected activity and the denial of his paid leave request

is consequently too tenuous to support a jury finding. However,

employment action.

20

The University implicitly concedes that the denial of paid

leave constitutes an adverse employment action. See Walker, 214

F.3d at 629.

16

while the fact that no similarly situated faculty member was denied

paid leave may cast doubt on Mota's retaliation claim,21 it is not

dispositive.

A rational jury could have found that the University's denial

of paid leave was causally related to Mota's protected activity.

The University's Handbook of Operating Procedures stated that paid

leave could be granted "for a wide variety of reasons." A jury

could conclude that the University refused to exercise its

discretion to grant Mota paid leave. The University asserts that

Mota was ineligible for paid leave, arguing that he had exhausted

all accrued paid sick and annual leave prior to November 1997. The

University's position is not compelled by the record, and a jury

could have determined that the proffered reason for denying Mota

paid leave was pretextual. Indeed, the jury's finding that the

University had already retaliated against Mota by discontinuing his

stipend further supports an inference of retaliatory animus in the

paid leave context.

3

The University also asserts that its denial of Mota's request

for an extension of his unpaid leave can not support a retaliation

claim. "[E]mployment actions are not adverse where pay, benefits,

21

See Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1185-86

(5th Cir. 1997).

17

and level of responsibility remain the same."22 The University

contends that denial of unpaid—as opposed to paid—leave can not be

an adverse employment action because it does not deprive Mota of

pay, benefits, or level of responsibility.

The University's contention is without merit. Unpaid leave

facially qualifies as a benefit. This Court has recognized that the

granting of leave, more generally, is an "ultimate employment

decision."23 This Court has not differentiated between paid and

unpaid leave. Moreover, it is difficult to conceive of a principled

basis for such a distinction.24 The University's argument

consequently fails.25

A rational jury could conclude that the University retaliated

against Mota by denying his request for additional unpaid leave.

Although the University asserts that Mota was granted medical

22

Watts v. Kroger Co., 170 F.3d 505, 512 (5th Cir. 1999).

23

See Walker, 214 F.3d at 629.

24

Cf. Rowe v. Laidlaw Transit, Inc., 244 F.3d 1115, 1118 (9th

Cir. 2001) (finding no basis for distinguishing between paid and

unpaid leave for purposes of the FMLA and that such a distinction

would frustrate the statute's purpose of protecting employees from

adverse employment decisions).

25

The cases cited by the University are inapposite. Ansonia

Bd. of Educ. v. Philbrook, 479 U.S. 60, 70-71 (1986), is a

religious accommodation case. Moreover, Nashville Gas Co. v. Satty,

434 U.S. 136, 145 (1977), was superseded by the 1978 amendments to

the Civil Rights Act of 1964. See Pub. L. No. 95-555, 92 Stat. 2076

(1979) (codified as amended at 42 U.S.C. § 2000e(k)); Somers v.

Aldine Indep. Sch. Dist., 464 F. Supp. 900, 902-03 (S.D. Tex.

1979).

18

leave, Mota testified that he was granted "personal leave," which

may be granted for up to twelve months. The record indicates that

another University employee was granted one year of unpaid personal

leave because his wife did not like the weather in Houston. In the

face of an arguably more compelling rationale—i.e., Mota's

difficulties with Caffesse and his medical problems26—the University

refused Mota's request for the same amount of unpaid leave. The

University informed Mota that the grant of additional leave was not

in the best interests of the University. It argued at trial that

Mota had failed to provide a "legitimate, documented reason for an

extension of his leave." The University further asserted that Mota

had already accepted a position with the University of Pittsburgh

at the time of his request.

A jury could have disbelieved each of these proffered

justifications, concluding that the University's explanation for

refusing Mota's request was a pretext for retaliation. First, Mota

testified at trial that no documentation beyond that which he had

already supplied the University was necessary. A jury could have

credited this assertion. Second, Mota asserts that he had not yet

accepted a position in Pittsburgh at the time of the denial of his

request for leave. Indeed, the record contains a letter from the

Provost of the University of Pittsburgh, dated August 19, 1998,

26

According to Mota's doctors and his own testimony, Mota

experienced an array of psychological and minor medical problems in

the wake of the incidents involving Caffesse.

19

which indicates the formal approval of Mota's appointment as

Visiting Assistant Professor of Periodontics. The jury could have

reasonably inferred from this evidence that Mota had not accepted

the offer by May 19, 1998, when the University denied his request

for additional leave.27 The evidence supports a jury finding of

retaliation.

4

A rational jury also could have determined that the University

ultimately terminated Mota because of his involvement in protected

activity. Although the University asserts that Mota resigned, a

jury could have found that it terminated him. In fact, Mota

submitted a letter dated June 26, 1998, in which he contests

Johnson's assertion that he had resigned.

The record supports the inference that Mota's termination was

motivated by retaliatory animus. Mota's ostracism at the hands of

University employees and the University's decision to strip of him

of certain duties and privileges support a finding of retaliatory

animus. This conclusion is strengthened by a finding that the

University retaliated against Mota by discontinuing his stipend and

denying his leave requests. We therefore find no error in the

27

A jury also could have concluded that the University

intended to create immigration difficulties for Mota, as his visa

was set to expire on July 14, 1998. Given the impending expiration

of Mota's visa, a jury could have inferred that the University's

denial of additional leave was motivated by retaliatory animus.

20

district court's refusal to enter judgment as a matter of law on

Mota's retaliation claim.

III

A

The University contends that the trial court erred in entering

judgment on Mota's sexual harassment claim. The University argues,

first, that Caffesse's harassment of Mota was not sufficiently

severe or pervasive.28 The plaintiff in a hostile work environment

claim must establish that: (1) he belongs to a protected class; (2)

was subjected to unwelcome sexual harassment; (3) the harassment

was based on his sex; (4) the harassment affected a term,

condition, or privilege of his employment; and (5) the employer

knew or should have known of the harassment and failed to take

remedial action.29 A hostile work environment claim requires the

presence of a work environment that a reasonable person would find

hostile or abusive.30 "Whether an environment is hostile or abusive

depends on a totality of circumstances, focusing on factors such as

the frequency of the conduct, the severity of the conduct, the

28

The University does not contest the proposition that Title

VII prohibits same-sex harassment. The Supreme Court conclusively

resolved this issue in Oncale v. Sundowner Offshore Servs., Inc.,

523 U.S. 75 (1998).

29

Cain v. Blackwell, 246 F.3d 758, 760 (5th Cir. 2001).

30

See DeAngelis v. El Paso Mun. Police Officers Ass'n, 51 F.3d

591, 594 (5th Cir. 1995).

21

degree to which the conduct is physically threatening or

humiliating, and the degree to which the conduct unreasonably

interferes with an employee's work performance."31 This Court has

held that "[d]iscriminatory verbal intimidation, ridicule, and

insults may be sufficiently severe or pervasive to alter the

conditions of the victim's employment and create an abusive working

environment that violates Title VII."32

A jury could rationally infer that Caffesse's conduct was

sufficiently extreme as to create a hostile work environment. The

evidence supports a finding that Caffesse engaged in repeated,

aggressive sexual advances in the face of adamant refusals by Mota.

A jury could find this conduct to be humiliating and degrading,

particularly in conjunction with Caffesse's threats. Although much

of this conduct was verbal, there was also evidence of repeated

physical contact. Moreover, the record reflects that Mota suffered

emotional distress and psychological problems in the wake of the

harassment. Although there is little evidence that Mota's

performance as a teacher and researcher suffered at the time of the

harassment, the record does reflect that he came to avoid

engagements and conferences at which Caffesse was also present.33

31

Weller v. Citation Oil & Gas Corp., 84 F.3d 191, 194 (5th

Cir. 1996).

32

Walker v. Thompson, 214 F.3d 615, 626 (5th Cir. 2000).

33

Tangible detriment to an employee's work performance is only

one factor to be considered in a hostile work environment claim.

See Harris v. Forklift System, Inc., 510 U.S. 17, 21 (1993).

22

Indeed, Mota felt compelled to take a leave from his position in

the wake of Caffesse's actions. There was sufficient evidence to

support the jury's finding of harassment.

B

The University further argues that the trial court lacked

jurisdiction to consider Mota's Title VII harassment claims to the

extent that they are based on events occurring in Mexico. The

University essentially contends that federal jurisdiction does not

lie given the extraterritorial events alleged and the fact that

Mota is not a U.S. citizen.34

Assuming arguendo the validity of Mota's Title VII

interpretation, subject matter jurisdiction would not be present if

the events in Mexico were the sole basis for Mota's harassment

claim.35 However, Mota's claim is also supported by alleged acts of

34

Title VII does not govern aliens employed outside the United

States. See 42 U.S.C. §§ 2000e(f) (2001) ("With respect to

employment in a foreign country, such term [employee] includes an

individual who is a citizen of the United States."); 2000e-1(a)

("This subchapter shall not apply to an employer with respect to

the employment of aliens outside any State . . . ."); Espinoza v.

Farah Mfg. Co., 414 U.S. 86, 95 (1973); Iwata v. Stryker Corp., 59

F. Supp. 2d 600, 603 (N.D. Tex. 1999). The University implicitly

concedes that Title VII protections apply to an alien employed in

the United States. See Espinoza, 414 U.S. at 95. We offer no

opinion as to whether Mota's participation in a three-day

conference in Mexico deprives him of Title VII protection.

35

Cf. Boureslan v. ARAMCO, Arabian Am. Oil Co., 892 F.2d 1271

(5th Cir. 1990) (en banc) (affirming dismissal of Title VII claim

for lack of subject matter jurisdiction on the basis of

extraterritoriality concerns), aff'd, EEOC v. Arabian Am. Oil Co.,

23

harassment in Breckenridge, Houston, Orlando, and Philadelphia.

Given the preceding incidents, which occurred in the United States,

the University can not demonstrate that Mota's harassment claim is

"wholly insubstantial and frivolous."36 As Mota states a potentially

viable harassment claim, federal jurisdiction is present.37

C

The University also challenges the jury's finding that it did

not establish affirmative defenses to Mota's harassment claim.

Where harassment does not result in a tangible employment action,

the defendant may offer the following affirmative defenses: "(1)

the employer exercised reasonable care to prevent and correct

promptly any such sexual harassment, and (2) the employee

unreasonably failed to take advantage of any preventative or

499 U.S. 244 (1991).

36

Holland/Blue Streak v. Barthelemy, 849 F.2d 987, 989 (5th

Cir. 1988) (per curiam).

37

Cf. Home Builders Ass'n of Miss., Inc. v. City of Madison,

143 F.3d 1006, 1010 (5th Cir. 1998) (holding that a motion to

dismiss for lack of subject matter jurisdiction should be granted

only if it appears certain that the plaintiff cannot prove any set

of facts in support of his claim that would entitle him to relief).

The University might have challenged the court's decision to allow

the jury to hear evidence relating to the events in Mexico, arguing

that such evidence is either irrelevant or unduly prejudicial. See

Fed. R. Evid. 401, 403 (2001). We express no opinion as to the

merits of such an argument, however, as the University failed to

articulate this position on appeal. The University has therefore

waived any contention on these grounds. See Yohey v. Collins, 985

F.2d 222, 224-25 (5th Cir. 1993).

24

corrective opportunities provided by the employer or to avoid harm

otherwise."38

1

A jury could reasonably conclude that the University failed to

exercise reasonable care to prevent and promptly correct

harassment. The jury could conclude that the panel's failure to

discipline Caffesse or take more affirmative steps against him was

unreasonable. In this case, the University decided to simply let

Mota and Caffesse work out a mutually agreeable accommodation.

Although an employer need not use the most serious sanction

available to punish an offender,39 the University did not even find

that Caffesse had engaged in sexual harassment. Nor did the

University issue a reprimand or warning, despite its policy against

even consensual sexual relations between supervisors and

subordinates. In the past, the school had reprimanded other

supervisors who had engaged in consensual relationships with

subordinates.40 Finally, the University's retaliation against Mota

38

Casiano v. AT&T Corp., 213 F.3d 278, 284 (5th Cir. 2000).

Mota does not appeal the jury's finding that there was no tangible

employment action. The University therefore construes his claim as

a "hostile environment" action. See id.

39

See Landgraf v. USI Film Products, 968 F.2d 427, 430 (5th

Cir. 1992), aff'd, 511 U.S. 244 (1994).

40

Cf. Walker v. Thompson, 214 F.3d 615, 627 (5th Cir. 2000)

(holding that the employer did not demonstrate as a matter of law

that it exercised reasonable care in correcting racially harassing

25

undermines its claim that it was attempting to prevent future

harassment.

2

The evidence also supports the jury's finding that Mota took

advantage of available remedies. The University criticizes Mota for

not having filed his complaint with the Harassment Board sooner and

for failing to disclose tapes of conversations with Caffesse.

This Court has not articulated a bright-line test regarding

when a delay in filing a complaint becomes "unreasonable." Mota

filed his complaint in late April 1997, approximately nine months

after the incidents in Mexico and eight months after the events in

Philadelphia. Although this Court's jurisprudence indicates that a

delay of three months appears not to be excessive,41 a delay of

eight or nine months is more problematic. However, in light of

Caffesse's repeated threats of retaliation, a jury could infer that

Mota's delay was not unreasonable. Mota may have believed that

resort to the University's administrative process was ineffectual,

given Caffesse's influence at the University. According to Mota's

testimony, Caffesse told him that the University would protect and

defend him against any complaint. Thus, Mota's delay in filing his

complaint does not warrant reversing the jury's determination.

behavior).

41

See Watts v. Kroger Co., 170 F.3d 505, 510-11 (5th Cir.

1999).

26

A jury could also find that Mota's failure to disclose tape

recordings of conversations between him and Caffesse was not

unreasonable. Mota fully participated in the investigation,

testifying before the panel and providing an extensive written

complaint. He may have viewed the production of additional

evidence, such as recordings of conversations, as futile, given his

concerns over the effectiveness of the panel's inquiry, the

composition of the panel, and Caffesse's influence. A jury could

have concluded that Mota's actions did not constitute an

unreasonable failure to take advantage of preventive or corrective

opportunities.

In sum, a jury could have determined that the University

failed to meet its burden of proof in establishing its affirmative

defenses. The district court did not err in entering judgment on

Mota's sexual harassment claim.

IV

A

The University contends that the court's award of front pay

was an abuse of discretion.42 Front pay is a form of equitable

relief contemplated by Title VII and is intended "to compensate the

42

See Shirley v. Chrysler First, Inc., 970 F.2d 39, 44 (5th

Cir. 1992) (applying abuse of discretion standard).

27

plaintiff for lost future wages and benefits."43 "[F]ront pay may

be awarded if reinstatement is not feasible where" a hostile

relationship exists between the employer and the plaintiff.44

Although front pay is an equitable remedy for the district court to

determine, the court may empanel an advisory jury.45

In considering the jury's advisory award of $328,565.00 in

front pay, the district court took into account the University's

post-trial conduct. This was not error.46 After initially reducing

43

Id.; see 42 U.S.C. § 2000e-5(g)(1) (2001); see also Pollard

v. E.I. du Pont de Nemours & Co., 121 S. Ct. 1946, 1950 (2001).

44

Woodhouse v. Magnolia Hosp., 92 F.3d 248, 257 (5th Cir.

1996).

45

See Rutherford v. Harris County, 197 F.3d 173, 188 (5th Cir.

1999); Allison v. Citgo Petroleum Corp., 151 F.3d 402, 423 n.19

(5th Cir. 1998); Fed. R. Civ. P. 39(c) (2001).

46

The University implies that the email should have been

subjected to the procedural safeguards of an evidentiary hearing.

Assuming arguendo that the University had a due process right to a

hearing, it waived that right by failing to ask the court for a

hearing on the basis of the email. See Boddie v. Connecticut, 401

U.S. 371, 378-79 (1971). The University had ample notice of the

basis for a possible hearing request, as Mota noted the

implications of the email in three separate pleadings prior to the

court's entry of final judgment. Although the University moved for

an evidentiary hearing on equitable relief, it did not argue that

the email warranted such a hearing. The University waived any

putative hearing right. See Bueno v. City of Donna, 714 F.2d 484,

492-93 (5th Cir. 1983).

The University also contends that the message is inadmissible

hearsay. This argument is meritless. The email was competent

evidence as either a verbal act, see Fed. R. Evid. 801(a) (2001);

Tompkins v. Cyr, 202 F.3d 770, 779 n.3 (5th Cir. 2000) (stating

that a threatening letter was a verbal act, and not a "statement"

for purposes of the hearsay rule); as evidence of Low's state of

mind, see Fed. R. Evid. 803(3) (2001); or as evidence of its impact

on Mota, see United States v. Ballis, 28 F.3d 1399, 1405 (5th Cir.

28

the jury's recommended award to reflect only ten years of lost

future wages, the court added five additional years of front pay

based on an email sent by President Low to all 8,000 University

employees. The court determined that the email, which Low sent the

day after the jury verdict, was the continuation of a pattern of

vindictive behavior demonstrated at trial. In the email, Low

expressed his disappointment over the jury's finding of

retaliation, stating: "I want to make it very clear that [Mota] was

not fired, but rather failed to return to his faculty duties upon

expiration of leave that he had requested and was granted by UT-

Houston." The district court portrayed the email as attempting to

"present Mota in the worst professional light possible." The court

also concluded that this behavior would impact Mota's future work

prospects. On this basis, the court reduced the jury's front pay

award to $194,989.00. We find no abuse of discretion.

B

The University also contends that the front pay awarded by the

court failed to take into account the fact that, at the time Mota

left the University in 1998, he would not have been considered for

tenure at the University until he had completed four more years of

work. It contends that the court gave Mota a windfall by treating

1994); United States v. Kirk, 844 F.2d 660, 663 (5th Cir. 1988).

Mota did not submit the letter to "prove the truth of the matter

asserted" therein. Fed. R. Evid. 801(c) (2001).

29

him as if he had tenure by the time he left the University.

However, the University does not point to any specific evidence to

refute the court's calculations. The court attempted to reconcile

the pay disparity between Mota's position at the University and the

lower-paying position he was forced to take in Pittsburgh. This was

not an abuse of discretion.

C

The University further challenges the court's award of

attorney's fees. A district court's award of attorney's fees is

reviewed for abuse of discretion.47 The University first contends

that the fee award was excessive in comparison with fee awards

entered in other Title VII cases requiring more time and attention.

The University fails to address the court's application of the

Johnson factors,48 and makes only a conclusory assertion about

comparable awards. The two cases cited by the University involve

substantially lower hour totals and billing rates.49 The

University's failure to object to specific hours worked and the

47

See Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).

48

See id. at 433-37; Johnson v. Georgia Highway Express, Inc.,

488 F.2d 714, 717-19 (5th Cir. 1974).

49

See Purcell v. Seguin State Bank & Trust Co., 999 F.2d 950,

961 (5th Cir. 1993) (upholding award of $75,000 in fees based on

500 hours worked and $150 per hour billing rate); Shipes v. Trinity

Indus., 987 F.2d 311, 319-23 (5th Cir. 1993) (affirming $144,712.70

fee award based on 1,306.88 hours worked and billing rates of $165

per hour and $140 per hour).

30

reasonableness of the rates charged renders its argument

meritless.50

D

The University also contends that the court failed to

segregate fees incurred through Mota's dispute with Caffesse from

those generated by his litigation with the University. The

University contends that the majority of discovery disputes were

between Mota and Caffesse, who had separate legal counsel. The

University accordingly seeks a set-off from the $290,000 in

settlement proceeds Mota received from Caffesse's insurers. It

argues that the settlement fund presumably compensated Mota's

attorneys for their efforts against Caffesse. The University

invokes the general presumption against double recovery.51

Mota urges this Court to uphold the award as a reasonable

exercise of the district court's discretion. He contends that the

University failed to preserve its objection at the trial level

because it did not offer reasons in support of its argument that

individual entries were duplicative. This argument fails, however,

50

We note that, although the court did not award sanctions for

the University's conduct, it observed that the University had

engaged in numerous discovery abuses, "many of which were extremely

frivolous in nature and clearly appeared to be an attempt to harass

or intimidate the Plaintiff." The court concluded that these

abusive tactics prolonged the litigation between the parties and

partially justified the magnitude of Mota's fee award.

51

See In re Texas General Petroleum Corp., 52 F.3d 1330, 1340

(5th Cir. 1995).

31

as Mota concedes that the University pointed out specific items to

the trial court. Moreover, "the burden of proof of reasonableness

of the number of hours is on the fee applicant, and not on the

opposing party to prove their unreasonableness."52

Mota contends that the award itself was reasonable and not

duplicative. Mota's counsel represented to the trial court that

they had carefully segregated time spent on the case which was

unique to Caffesse. The district court reasonably credited this

assertion. The court also found that the majority of claims against

Caffesse were "inextricably intertwined with the claims against the

University and that it would be impossible to segregate all of the

time for purposes of making a determination of attorney's fees." A

court need not segregate fees where the facts and issues are so

closely interwoven.53 Moreover, until the settlement, Caffesse and

the University coordinated their defense efforts. The preceding

considerations amply support the district court's award.

E

Mota also refutes the University's suggestion that it receive

a credit for the settlement with Caffesse. He points out that cases

in which a court awards a settlement credit to a non-settling

52

Leroy v. City of Houston, 831 F.2d 576, 586 (5th Cir. 1987)

(citation omitted).

53

See Abell v. Potomac Ins. Co., 946 F.2d 1160, 1169 (5th Cir.

1991).

32

defendant involve co-defendants liable under the same legal

theory.54 But Caffesse and the University are not joint tortfeasors,

and these cases involve set-offs for liability, not attorney's

fees. Even if we were to extend this principle to claims for

attorney's fees,55 a set-off would only be justified where the non-

settling party demonstrates that it was required to pay for legal

work attributable to the settling party. As we have already noted,

the University has not made such a showing. The district court's

fee award was not an abuse of discretion.

V

54

See, e.g., McDermott, Inc. v. Amclyde & River Don Castings,

Ltd., 511 U.S. 202, 208 (1994) (stating that only when "a plaintiff

settles with one of several joint tortfeasors [are] the nonsettling

defendants . . . entitled to a credit for that settlement").

55

The University cites Ochoa v. Employers Nat'l Ins. Co., 724

F.2d 1171, 1178 (5th Cir. 1984), in which this Court applied the

principle of double recovery to the allocation of attorney's fees

in a suit for benefits under the Longshoreman's and Harbor Workers'

Compensation Act, 33 U.S.C. §§ 901-950 (1976). We observed that

district courts have discretion to adjust an attorney's fee to

allow an injured longshoreman to share in the recovery. We also

held that the court's allocation should not allow double recovery

where the attorney has already obtained a fee for securing

compensation benefits. See id. The Supreme Court subsequently

vacated the panel opinion. See 469 U.S. 1082 (1984). On remand, we

reaffirmed the approach adopted in the original opinion. See Ochoa

v. Employers Nat'l Ins. Co., 754 F.2d 1196, 1199 (5th Cir. 1985).

This case does not, however, compel the award of a set-off based on

a prior settlement involving a different party under different

legal theories. Moreover, the University fails to indicate how much

of the settlement allegedly compensated Mota's attorneys. Nor does

the University specify the corresponding level of the settlement

credit it seeks.

33

The University challenges the court's award of costs to Mota.

An award of costs is reviewed for abuse of discretion.56 The

University contends that the district court erred in awarding

$3,470.00 for videotaped depositions, $150.46 for an investigation

of Caffesse, and a $1,500.00 mediation fee.57

Under 28 U.S.C. § 1920, a court may tax the following costs:

fees of the clerk and marshal; fees of the court reporter for all

or any part of the stenographic transcript necessarily obtained for

use in the case; fees and disbursements for printing and witnesses;

fees for exemplification and copies of papers necessarily obtained

for use in the case; docket fees; compensation of court-appointed

experts, interpreters, and special interpretation services.58 The

Supreme Court has indicated that federal courts may only award

those costs articulated in section 1920 absent explicit statutory

or contractual authorization to the contrary.59

In Title VII cases, a district court has an additional source

of authority for applying attorney's fees and costs, 42 U.S.C. §

2000e-5(k). This provision empowers the court to "allow the

56

See Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).

57

This figure reflects only the fee charged by the mediator,

and not the attorney's fees incurred through the attempted

mediation of this case.

58

28 U.S.C. § 1920 (2001).

59

Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437,

444-45 (1987); see also Denny v. Westfield State College, 880 F.2d

1465, 1467-69 (1st Cir. 1989).

34

prevailing party . . . a reasonable attorney's fee as part of the

costs."60 This Court has interpreted the "attorney's fee" allowed

by Section 2000e-5(k) to include "reasonable out-of-pocket expenses

incurred by the attorney which are normally charged to a fee-paying

client, in the course of providing legal services," such as

postage, photocopying, paralegal services, long distance telephone

charges, and travel costs.61

The court erred in taxing the University with the cost of

videotaped depositions. We have observed that "28 U.S.C. § 1920(2)

only allows for the recovery of '[f]ees of the court reporter for

all or any part of the stenographic transcript necessarily obtained

for use in the case.' There is no provision for videotapes of

depositions."62 This reading is consistent with the text of 28

60

42 U.S.C. § 2000e-5(k) (2001).

61

Mennor v. Fort Hood Nat'l Bank, 829 F.2d 553, 557 (5th Cir.

1987); see also Associated Builders & Contractors of Louisiana,

Inc. v. Orleans Parish Sch. Bd., 919 F.2d 374, 380 (5th Cir. 1990).

In 1993 Rule 54(d)(2) of the Federal Rules of Civil Procedure was

amended to outline procedures for filing claims for "attorney's

fees and related non-taxable expenses." Fed. R. Civ. P. 54(d)(2)

(2001). The provision in question applies "to requests for

reimbursement of expenses, not taxable as costs, when recoverable

under governing law incident to the award of fees." Fed. R. Civ. P.

54(d)(2) (advisory committee notes) (emphasis added). The rule

change therefore does not and could not expand the scope of

expenses recoverable as incidental to the award of fees. The

governing substantive law dictates recoverable expenses.

62

Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1049 (5th Cir.

1998). But see Morrison v. Reichhold Chems., Inc., 97 F.3d 460

(11th Cir. 1996) (finding videotape deposition to be taxable, given

section 1920 and Fed. R. Civ. P. 30(b)(4) and usefulness as a

discovery technique); Commercial Credit Equip. Corp. v. Stamps, 920

35

U.S.C. § 1920(2) and the Supreme Court's admonition that we

strictly construe this provision.63 Nor is it feasible to

characterize videotaped depositions as "out-of-pocket expenses"

similar to postage and long-distance telephone calls.64 Section

2000e-5(k) therefore lends no support for the court's ruling. As

the court abused its discretion, we are compelled to vacate its

award of the costs associated with videotaped depositions.

While the court also erred in taxing the University with the

costs of mediation, its award of investigation costs was not an

abuse of discretion. Neither category of expenses is within section

1920. We find that section 2000e-5(k) supports the award of

investigation fees as a "reasonable out-of-pocket expense."65

However, mediation costs do not fall within the limited category of

expenses taxable under Title VII. In sum, we conclude that the

district court abused its discretion in awarding the cost of

videotaped depositions and mediation.

VI

F.2d 1361, 1367-69 (7th Cir. 1990) (same).

63

See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S.

437, 441-42 (1987).

64

42 U.S.C. § 2000e-5(k); see Mennor, 829 F.2d at 556-57.

Although Migis, 135 F.3d at 1048, addressed costs awarded in a

Title VII case, it did not discuss the relevance of section 2000e-

5(k) to this award.

65

See Hertz Corp. v. Caulfield, 796 F. Supp. 225, 230 (E.D.

La. 1992).

36

We AFFIRM the district court's judgment on Mota's claims of

sexual harassment and retaliation and its award of investigation

costs. We VACATE the award of the costs of videotaped depositions

and mediation.

AFFIRMED in part, VACATED in part, and REMANDED.

37