Petition for Writ of Certiorari — Rio Petroleum, Inc. v. Brown

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04 671 OCT 16.2001

No.

a

Supreme Court of the United States

RIO PETROLEUM, INC.,

Petitioner,

versus

YOLANDA N. BROWN,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Marty L. Row.ey

Counsel of Record

SHawn D. Twinc

Sprouse, Smith & Rowley, P.C.

801 S. Fillmore, Suite 600

Amarillo, TX 79105-5008

(806) 468-3300

Attorneys for Petitioner

: 4A

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Question Presented

Was it error for the United States Fifth Circuit Court

of Appeals to uphold the District Court's denial of

Petitioner’s initial and renewed Rule 50 motions regarding

Respondent’s disparate treatment case by imputing an

unlawful discriminatory motive to the Respondent’s direct

supervisor, who was the sole decision-maker, in the absence

of any evidence of racial bias or animus on the part of the

supervisor?

ii

List of Parties

The following is a list of all parties to the proceedings

in the Court beiow, as required by Rule 24.1(b) and Rule 29.1

of the Rules of the Supreme Court of the United States:

1.Rio Petroleum, Inc.,

Defendant/Appeilant/Petitioner

2.John Walker, Jr., Defendant/ Appellant

3.Barrett W. Pierce, Defendant

4.Yolanda N. Brown,

Plaintiff/Appellee/Respondent

5.Marty L. Rowley, Attorney for the

Defendants/Appellants/ Petitioner

6.Shawn D. Twing, Attorney for the

Defendants/Appellants/ Petitioner

7.Muakum J. Sherman, Attorney for the

Plaintiff/Appellee/Respondent

;

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Table of Contents

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STATUTORY PROVISIONS INVOLVED...........ccsccessesesseeesseeeseeees l

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REASONS FOR GRANTING THE PETITION ............:cceesseessceesseeees 7

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APPENDIX

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Table of Authorities

CASES

AUGUSTER V. VERMILION PARISH SCHOOL BOARD, 249 F.3D

400, 404 (STH CIR. 2001)......cscscesssesesesenenssenenenneeenensesseseens 12

_ Brown V. CSC LoaiIc, INC., 82 F. 3D 651 (STH CiR. 1996) 12

ERCEGOVICH V. GOODYEAR TIRE & RUBBER Co., 154 F.3D

344, 355 (6TH CIR. 1998).......ccescseeerseseeeeerenennensesesssesseees 14

GRIFFIN V. WASHINGTON CONVENTION CENTER, 142 F.3D

1308 (D.C. CIR. 1998) ......ccccccercesscocsecsovcsnesersscrsesssccreneeees 14

HAZEN PAPER COMPANY V. BIGGINS, 507 U.S. 604, 610

(1993),...cccsccossscsssessesscseenenecssssessonssseeeseneenesssssonesceresenensssesorees Y

KENDRICK V. PENSKE TRANSP. SERVICES, INC., 220 F.3D

1220 (LOTH CIR. 2000).......cscessrseseeeeresenenensenesees ihasesisucesine 14

KIENTZY V. MCDONNELL DOUGLAS CorpP., 990 F.2D 1651

(STH CIR. 1993).....ceccsessereesereresnsnenenensnsseanesacenersrnanenssesens 14

LLAMPALLAS V. MINI-CiRCUITS LAB, INC., 163 F.3D 1236,

1249 (LITH CIR. 1998).......cccccseseseestssseeenenenensssenenecsesenenes 14

MEDINA-MUNOz V. R. J. REYNOLDS TOBACCO CO., 896 F.2D

5, 10 CARST CIR. 1990) ..c..eesesesseeesseneseenerensenensenssnsenssesenens 11

REEVES V. SANDERSON PLUMBING PRODUCTS, INC., 530 U.S.

133, 141 (2000).........ccecesecseeeenenseeesereeeenenseneees 9, 10, 12, 14

RUSSELL V. MCKINNEY HOSPITAL VENTURE, 235 F.3D 219

(STH CIR. 2000).......cscesssseesesesesensseneesenenenene cnenerenseneneenenens 10

SANTIAGO-RAMOS V. CENTENNIAL P.R. WIRELESS Corp., 217

F.3D 46, 55 (IRST CIR. 2000).......csesseerserseseeeseteeneeeesersens 1]

SHAGER V. UPJOHN CO., 913 F.2D 398, 405 (7TH CIR. 1990) -

Rea Ne rem ee a Toston enone ota vonr Niner OS 13, 14

STATUTES

QB U.S.C. § 12541) ...eesesssssssssserenenesensnenenensessnenssenennenenanenenenes 1

42 U.S.C. 2000E-2.......ccsccceccsssccssccssssssersstesensesessnesscsessnsenesens 7)

42 U.S.C. 2000E-2(A)(1) (WEST 1999) ......eeccessereereeeeeeees 1,8

l

Opinions Below

The Opinion of the United States Cour . Appeals

for the Fifth Circuit is unreported. It is attac;..d as an ~

appendix.

Jurisdiction

This Court has jurisdiction to review the decision of

the United States Court of Appeals for the Fifth Circuit

entered on April 12, 2001, Petition for Panel Rehearing

denied July 20, 2001, by a Writ of Certiorari pursuant to 28

U.S.C. § 1254(1).

Statutory Provision Involved

The statute construed and applied in this case is Title

VI of the Civil Rights Act, as amended, 42 U.S.C. 2000e-

2(A)(1) (West 1999) which states in relevant part that, “[i]t

shall be an unlawful employment practice for an employer -

to . . . discriminate against any individual with respect to

[her] . . . terms, conditions or privileges of employment

because of such individual’s race . . . “

Statement of the Case

A jury in the United States District Court for the

Northern District of Texas, found that Petitioner, Rio

Petroleum, Inc., had discriminated against Yolanda N.

Brown, Respondent, regarding certain terms, conditions and

privileges of her employment on account of her race. The

United States Court of Appeals for the Fifth Circuit affirmed

holding that even though no evidence of racial bias or race

based motivation existed with respect to Ms. Brown’s

supervisor, Carol Pierce, an unlawful motivation could be

imputed to her on the basis of certain comments attributed te

two other corporate officers of Rio Petroleum, Inc. who had

2

no influence or input regarding the personnel matters at issue

in this case.

(Facts)

A. Course of Proceedings and Disposition Below

Yolanda N. Brown (“Respondent” or “Ms. Brown”)

filed this action pursuant to Title VII of the Civil Rights Act

of 1964, as amended (“Title VII”) and Texas common law.

Specifically, Respondent brought twelve distinct claims of

race and gender discrimination, race and sexual harassment

and retaliation against Rio Petroleum, Inc. (“Rio Petroleum”

or Petitioner”) (R. Vol. 4, pp. 000337 - 000340). In addition,

she pursued a state law claim of intentional infliction of

emotional distress against Barrett Pierce (“Mr. Pierce”), who

is the President of Rio Petroleum, and a state law claim of

assault and battery against, John Walker, Jr. (“Mr. Walker”),

who is a Vice-President of Rio Petroleum.

At the close of its case-in-chief, Petitioner, Mr.

Walker and Mr. Pierce moved for Judgment as a Matter of

Law (“JMOL”) pursuant to Federal Rule of Civil Procedure

50. The Court granted these Motions, except for a portion of

Respondent’s disparate treatment claim against Rio

Petroleum and the assault and battery claim against Mr.

Walker. (R. EX. 4, 265-66) As a result of the District

Court’s ruling, Barrett Pierce was dismissed as a party

Defendant along with Respondent’s allegations of sexual

-harassment and intentional infliction of emotional distress

against him.

After presenting their defense, Rio Petroleum and Mr.

Walker renewed their JMOL Motions on the remaining

claims pending against them. These Motions were denied

and the claims were submitted to the jury. (R. Vol. 4, p. 490).

The jury returned a verdict in the Respondent’s favor on her

3

disparate treatment claim against Rio Petroleum and on her

assault and battery claim against Mr. Walker. (RE. EX. 3)

On March 10, 1999, Rio Petroleum and Mr. Walker

again renewed their JMOL Motions. In addition, they both

filed Motions for Remittitur and New Trials. (R. Vol. 2, p.

000450) By Order entered on September 30, 1999, the Court

granted in part and denied in part Rio Petroleum’s Motion for

Remittitur by reducing the jury verdict against the company

to the level of the applicable statutory cap on compensable

damages. (R. Vol. 2, p. 000450) The Court denied the

remainder of the Petitioner’s Motions. Final Judgment was

entered on September 30, 1999. The District Court has

never ruled on this Motion. Petitioner filed a timely Notice

of Appeal on October 25, 1999 seeking a review of the

District Court’s September 30, 1999 Order and the Final

Judgment entered against it. On appeal, the Fifth Circuit

reviewed Respondent’s claim in disparate treatment

concerning the terms and conditions of her employment. In

an unpublished opinion issued on April 12, 2001, the Court

found sufficient evidence to uphold the jury’s verdict on this

claim. Petitioner’s subsequent petition for panel rehearing

was denied by order dated July 20, 2001.

B. Stipulated Facts and Facts Relevant to Appellate

Review

Before trial, the parties stipulated to a “factual

narrative” that was read to the jury. (R. Vol. 4, pp. 62-65)

The relevant portions of that narrative are set forth in the

following paragraphs in order to aid this Court in

understanding the factual background of this case.

“Rio Petroleum is a Texas corporation

engaged in the business of exploration,

production and sale of oil and natural gas. Rio

Petroleum’s corporate offices are located in

4

Amarillo, Texas. Barrett Pierce is the

president of Rio Petroleum. Defendant John

Walker, Jr. is a vice-president of the

corporation. At all times relevant to this

lawsuit, Rio Petroleum employed more than

fifteen (15), but less than twenty (20)

employees. Further, Rio Petroleum had

adopted policies prohibiting race

discrimination and harassment, including

sexual harassment. These policies also

contained a procedure for reporting suspected

violations. A copy of the company’s policy

handbook was provided to all Rio Petroleum

employees, iricluding Ms. Brown.

Yolanda Brown was hired by Rio

Petroleum on January 1, 1992 to be a member

of the company’s office staff. Specifically,

Appellee was hired to perform the duties of a

receptionist, production clerk and filing clerk.

' She was also expected to perform other

clerical duties on an “as needed basis.”

Because of Rio Petroleum’s small size, office

employees were required to perform various

office tasks as the need arose. Consequently,

Ms. Brown did not have a specific job title.

While employed by Rio Petroleum,

Appellee’s direct supervisors were Carol

Pierce and Jim Marcum. Both Mrs. Pierce

and Mr. Marcum are vice-presidents of the

company. Mrs. Pierce is the wife of Barrett

Pierce.

5

-

During her employment, Ms. Brown

received raises in her salary. She also

received incentive bonuses and participated in

company social functions which included

dinner parties and Christmas gift exchanges.

Throughout her employment, Ms.

Brown was assigned various job duties within

the office. These duties included typing

documents, filing documents, answering the

phone, taking phone messages, making bank

deposits and running errands. During her

employment, Ms. Brown was counseled about

her job performance. Eventually, job duties

were taken away from Ms. Brown and

assigned to other employees. Rio Petroleum

also installed an automated phone system to

take in and record business calls.

Ms. Brown’s’ employment was

terminated effective September 13, 1996. She

was notified of her termination in a meeting

with Mr. Marcum and Mrs. Pierce. During

this meeting, Ms. Brown was given a written

separation notice. She was advised in this

writing that:

6

{ijn your four years of

employment with Rio, we have

endeavored to have you

perform various tasks.

However, other than arranging

birthday/party celebrations and

attending receptionist activities

during conference meetings,

you failed to successfully

perform and master tasks given

you. These inabilities resulted

in the transference of work and

responsibilities to others.

Recall that I have had several

conversations with you in the

past regarding your job

performance, and I have seen

no improvement. Therefore,

we must terminate your

employment effective

immediately.

This letter was signed by Mrs. Pierce and sent

to Mr. Pierce, Mr. Marcum, and Mr. Walker,

and placed in Ms. Brown’s employment file.

Ms. Brown was not replaced by a current

employee of Rio Petroleum, except that her

job duties had been assigned to other

employees, nor was any other person hired to

fill her job position.

7

After her employment with Rio

Petroleum ended, Ms. Brown collected the

maximum amount unemployment benefits

allowed by law. She later returned to school

on a full-time basis and works part-time. She

is currently a full-time student at West Texas

A & M University. For support, Ms. Brown

works part-time, receives child support

payments and financial assistance from her

family.

(R. Vol. 4, pp. 62-65).

In addition to the stipulated narrative facts, additional

facts relevant to the resolution of this appeal were also

established at trial. It was established at trial that Respondent

was hired by Carol Pierce and Jim Marcum. (R. Vol. 4, p.

354). It was further established and undisputed that all final

personnel decisions regarding Respondent’s employment

were made by Mrs. Pierce. (R. Vol. 4, p. 435).

Reason for Granting the Writ

The Fifth Circuit’s decision exceeds the

boundaries of established employment

discrimination law by allowing courts to

impute discriminatory motivation to the

sole decision-maker in a race

discrimination case without any direct or

circumstantial evidence of racial bias on the

part of the decision maker or evidence that

some other party motivated by racial

animus exerted leverage or influence over

the decision-maker regarding the decisions

at issue. This Court should review this case

to decide under what circumstances

imputation of an unlawful motivation is

8

justified and what quantum of evidence is

required to avoid a Rule 50 motion.

This is a race discrimination case in which the

Respondent contends that certain decisions made regarding

the terms and conditions of her employment were unlawfully

based, in whole or in part, on her race. Specifically, the

decisions at issue involve the reassignment of certain job

duties once performed by the Respondent and the fact that

she was counseled by her supervisor regarding her receipt of

personnel phone calls while at work. (See Appendix la). At

trial, it was undisputed that Carol Pierce alone made these

decisions. At the times relevant to this case, she was the

company’s Vice-President in charge of personnel matiers,

and was Respondent’s direct supervisor with final decision

making authority regarding Respondent’s employment. (/d.)

It was further established at trial that no direct or

circumstantial evidence of racial bias or animus existed

regarding Mrs. Pierce. In fact, at trial Respondent

specifically testified that she did not believe Mrs. Pierce was

motivated by racial bias respecting decisions made

concerning her employment. (R.EX. 13 ) On the contrary,

Respondent testified that she and Mrs. Pierce had a good

working relationship that changed only when Respondent

allegedly reported an incident of sexual harassment regarding

Mr. Pierce. (R.EX. 13) In short, this case raises the problem

associated with imputing racial bias and animus to a neutral

decision-maker which may, and in this case, did result in a

finding of intentional discrimination where, in fact, no such

motivation existed. Such a result runs counter to the very

letter and spirit of Title VII jurisprudence.

Under Title VII, it is an unlawful employment

practice for an employer to discriminate against any

individual with respect to her terms, conditions or privileges

of employment because of such individual’s race. See 42

9

U.S.C. 2000e-2 (A)(1). In a disparate treatment case,

ultimate liability depends on “whether the protected trait [(in

this case race)] actually motivated the employer’s decision.”

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

141 (2000); citing Hazen Paper Company v. Biggins, 507

U.S. 604, 610 (1993). Stated simply, the plaintiff has the

ultimate burden of proving that the protected trait must

actually have played a role in the decision making process

- and had a determinative influence on the outcome. /d.

In order to establish liability in this case, Respondent

had to prove that the decisions made by her direct supervisor,

Carol Pierce, regarding the reassignment of Respondent’s job

duties and the limitation on her personal phone calls at work

were actually based, in whole or in part, on Respondent’s

race. Anything short of this evidentiary mark opens the door

for Title VII to be misused by courts and juries to reach into

the employment relationship and dispense their own

subjective sense of work-place justice using criteria not

authorized by Congress. Historically, when disparate

treatment cases have been brought under Title VII, the issue

has never been whether the court or jury believed the plaintiff

was treated in manner which was unfair, distasteful or even

immoral, but rather whether there was evidence to illustrate

that the plaintiff was treated in an illegal manner. See supra.

In this case, the Fifth Circuit affirmed the district

court’s denial of Petitioner’s Rule 50 motion in absence of

racial bias on the party of the decision-maker. As noted, it

was undisputed at trial that no direct or circumstantial

evidence of racial bias or animus existed respecting Mrs.

Pierce. It was further established at trial that Mrs. Pierce was

a Vice-President of Rio Petroleum and was the sole decision

maker regarding personnel matters in the office. The lack of

any direct or circumstantial evidence on the part of Mrs.

Pierce was raised by Petitioner in its initial and renewed Rule

50 Motions for Judgment as a Matter of Law. These Motions

10

were denied by the district court and appeal was taken to the

Fifth Circuit. In reviewing the issue, the Fifth Circuit

acknowledged the fact that no evidence regarding racial bias

or animus on the part of Mrs. Pierce existed, but the Court

nonetheless imputed a racial motivation to her decisions on

the basis of remarks allegedly made by Barrett Pierce, who

was the President of Rio Petroleum, and Mr. Walker who was

a Vice-President of the company.

In its Brief filed with the Fifth Circuit, Petitioner

characterized the remarks attributable to Mr. Pierce and Mr.

Walker as “stray remarks” which are not, as a matter of law,

probative of an unlawful racial motivation respecting the

employment decisions at issue. The Fifth Circuit disagreed

in light of this Court’s holding in Reeves v. Sanderson

Plumbing, supra, and concluded in a footnote that:

Rio Petroleum argues that the comments about

Brown's choice to celebrate certain holidays

and the label “little black nanny” should not

be weighed as evidence of racial bias because

they were ‘stray remarks.’ A reasonable jury

may have concluded that the remarks

concerning the celebrations indicated racial

animus and that the speaker’s ‘Walker and

Barrett Pierce’ exerted influence over the

decision maker, Carol Pierce. The remarks

were therefore circumstantial evidence of

racial discrimination by Rio Petroleum which

the jury could consider. See generally, Russell

v. McKinney Hospital Venture, 235 F.3d 219

(Sth Cir. 2000)explaining that Reeves v.

Sanderson Plumbing Products, Inc., [supra.],

modified Fifth Circuit stray remark

jurisprudence so that remarks which

evidenced discriminatory animus made by a

speaker who has leverage or influence of the

11

decision maker may be _ considered

circumstantial evidence of discrimination by

an employer). On the other hand, “the little

black nanny” label was coined by a coworker

who did not evidence such influence at Rio

Petroleum. We therefore agree that the

coworker’s reference to Brown as a “little

black nanny” was a stray remark, which did

not evidence bias on the part of the decision

maker.

(Appendix at pp. 2 and 3, n. 1). However, the Court’s

conclusion as outlined in this paragraph is contrary to the

record in this case. Interestingly, the Court does not explain

how the jury could have found evidence of the “leverage”

exerted by Mr. Walker or Mr. Pierce over Mrs. Pierce

regarding the specific personnel matters at issue in this case.

In fact, the Court did not identify any causal connection

between comments made by Mr. Pierce and Mr. Walker and

the relevant personnel decisions made by Ms. Pierce. In such

a case as the one at bar, imputing discriminatory intent to a

neutral decision-maker in the absence of a causal connection

with respect to the timing, substance and circumstances under

which alleged discriminatory comments are made and the

employment action places the disputed verdict on an illusory

base which is not sanctioned by Title VII.

The mere fact that a disparaging remark may have

been made by a non-decision-maker in the work-place does

not, standing alone does not, nor could it, indicate that a

specific employment decision was unlawfully motivated.

“Typically, statements made by ‘one who neither makes nor

influences [a] challenged personnel decision are not

probative in an employment discrimination case.” Santiago-

Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 55

(irst Cir. 2000); citing, Medina-Munoz v. R. J. Reynolds

Tobacco Co., 896 F.2d 5, 10 (irst Cir. 1990). The “stray

12

remarks” doctrine exists to distinguish between those

comments that are probative of a possible illegal motive and

those that are not probative, but merely superfluous to the

case. Contrary to early speculation, this Court did not strike

down the “stray remarks” doctrine by its decision in Reeves

v. Sanderson Plumbing, supra. This fact was recently noted

by the Fifth Circuit in Auguster v. Vermilion Parish School

Board, 249 F.3d 400, 404 (5" Cir. 2001) in which the Court

observed that the doctrine was still in tact. Nonetheless, the

Court failed to analyze the remarks attributable to Mr. Pierce

and Mr. Walker pursuant to its own standard established in

Brown v. CSC Logic, Inc., 82 F. 3d 651 (5 Cir. 1996).

According to Brown, “for comments in the work-place to

provide sufficient evidence of discrimination, they must be 1)

related [to the protected class of persons of which the

plaintiff is a member]; 2) proximate in time and to the

[employment action]; 3)made by an individual with authority

over the employment decision at issue; and 4) related to the

employment decision at issue.”

In reaching its conclusion that sufficient evidence of

unlawful bias existed in this case the Fifth Circuit bypassed

its own stray remarks analysis. In doing so, the Court simply

dispensed with the issue of whether an appropriate nexus

existed between the comments and Ms. Pierce’s decisions.

However, such a nexus must exist in order to uphold the

denial of a Rule 50 motion. With the exception of the first

element, none of the comments attributed to Mr. Pierce or

Mr. Walker satisfy this test. Specifically, the remarks were

not made by individuals with authority over the decisions at

issue nor were the remarks proximate in time or related to the

Ms. Pierce’s decisions regarding Respondent’s conditions of

employment. As a matter of law, these comments simply do

not evidence racial animus respecting the decisions at issue

and it was error for the Court to affirm the District Court’s

denial of Petitioner’s Rule 50 motions based upon their

existence

13

However, more troubling was the Fifth Circuit’s use

of the subject comments to impute discriminatory intent to

Ms. Pierce. Given the undisputed record in this case, the

imputation of an unlawful racial motivation was unjustified

and in conflict with existing case-law.

Several federal circuit courts of appeals have held that

remarks made by individuals other than the ultimate decision

maker may be used as evidence of racial bias or animus

under conditions in which the formal decision maker (in this

case Mrs. Pierce) was not independent, but influenced by one

or more individuals acting with unlawful motives. In such

cases, the central evidentiary requirement is proof that the

decision maker merely acted as an outlet or “conduit” for the

unlawful motivation of superior or subordinate members of

the employer’s organization. Such proof would, at minimum,

include a showing of a nexus between the comments and the

decision at issue and a showing of sufficient leverage or

influence actually exerted and the formal decision-maker.

Seventh Circuit Court Judge, Richard Posner has

coined the phrase “cats-paw” to describe the situation in

which evidence of an unlawful motivation exhibited by a

corporate superior can be probative of an unlawful

motivation respecting an employment decision even in the

complete absence of an unlawful motivation on the part of

the formal decision maker. Specifically, “if [the decision

maker] acted as the conduit of [the superior’s] prejudice - his

cat-paw - the innocence of [the decision maker] would not

spare the company from liability.” Shager v. Upjohn Co.,

913 F.2d 398, 405 (7th Cir. 1990). However, in order to

make the so-called “cat’s -paw” analysis, the plaintiff must

establish a causal link between the superior’s unlawful

purpose and the subordinate decision maker’s ultimate action.

In other words, there must be evidence that the decision

maker did not act upon her own volition, but rather merely

“rubber stamped” the unlawful desires of the superior who

14

would have been, in fact, the actual decision maker who has

attempted to insulate himself or herself by delegating the

formal decision making process to an individual over which

they have influence. Jd. In such a case, the “actual decision-

maker” is not the formal decision-maker, but rather his or her

superior. See Reeves v. Sanderson Plumbing Products, Inc.,

530 USS. at p. 152; see also, Ercegovich v. Goodyear Tire &

Rubber Co., 154 F.3d 344, 355 (6° Cir. 1998); Llampallas v.

Mini-Circuits Lab, Inc., 163 F.3d 1236, 1249 (11" Cir.

1998).

Similarly, the circuit courts have also held that the

unlawful motivation of subordinates can be imputed

upstream to the official decision maker under circumstances

in which subordinate employees pursue unlawful ends by

controlling information, evaluations and other data used by

upper management to make decisions regarding the

plaintiff's employment. Kendrick v. Penske Transp.

Services. Inc., 220 F.3d 1220 (10th Cir. 2000) (“other circuits

have recognized that a defendant may be held liable if the

manger who discharged the plaintiff merely acted as a rubber

stamp or the cat’s paw for a subordinate employee's

prejudice even if the manager lacks discriminatory intent”);

Griffin v. Washington Convention Center, 142 F.3d 1308

(D.C. Cir. 1998)(“evidence of a subordinate [employee’s]

bias is relevant where the ultimate decision maker is not

insulated from the subordinate’s influence”); Kientzy v.

McDonnell Douglas Corp., 990 F.2d 1051 (8th Cir. 1993).

Though the various circuits have adopted the cat’s-

paw analysis and thereby established precedent that a

decision maker cannot be used as a conduit for an otherwise

unlawful motivation from either superior or subordinate

employees within the employer’s organization, in both

scenarios there must be evidence of “leverage” or “influence”

over the neutral decision maker in order to create the causal

connection which would justify the imputation of racial bias

15

regarding the decisions at issue. However, the courts of

appeals have failed to establish any criteria respecting the

type and amount of such evidence that would permit

imputation. Consequently, the factual circumstances in

which imputation has been allow varies substantially and the

various courts of appeals have failed to arrive at any

consensus. However, all of the courts of appeals agree that

some amount of leverage evidence is _ necessary.

Nonetheless, in this case, the Fifth Circuit imputed racial bias

to Carol Pierce in the complete absence of any proof of

leverage or influence on the part of Mr. Pierce or Mr. Walker

regarding her decisions at issue. Quite the contrary, the

undisputed evidence reveals that Ms. Pierce acted

independently as the final decision maker regarding the

Respondent’s job duties and excessive personal phone calls.

Action by this Court is necessary to clarify the

parameters of the stray remarks doctrine and set guidelines

concerning the type and quantum of evidence necessary to

permit the imputation of an unlawful motivation pursuant to

the “cats-paw” analysis. Petitioner concedes the need for

imputation in the proper circumstances; however, in cases

such the one at bar, the analysis goes too far and permits the

finding of unlawful discrimination in the absence of any

rational basis for concluding that race discrimination has

occurred. If, for example, it was shown at trial that either Mr.

Pierce or Mr. Walker instructed Ms. Pierce to take the action

she did or controlled the information used by her in making

the decisions, imputation may have been reasonable.

However, given the undisputed fact that Ms. Pierce exercised

her position over personnel matters, specifically those

involving the Respondent, with independence and autonomy.

She was an officer and part-owner of the company and as

such could exercise her own personal judgment respecting

the issues the company faced concerning the Respondent. To

impute an unlawful motivation to her on the basis of

comments attributed to Mr. Pierce and Mr. Walker is patently

16

unreasonable and denies the undisputed fact that she

possessed and exercised her own autonomy respecting the

specific decisions at issue as a matter of law without any

factual or legal justification.

CONCLUSION

This case presents important questions regarding the

proper legal standard and quantum of evidence necessary to

impute discriminatory intent to an individual decision-maker

in disparate treatment cases brought under Title VII. Though

several courts of appeals have held that such imputation is

proper is certain cases, the. courts have taken various

approaches on the issue. In this case, the Fifth Circuit Court

of Appeals has imputed discriminatory intent in the absence

of any direct or circumstantial evidence of racial bias or

animus on the part of the decision-maker on the basis of stray

remarks made by non-decision makers without any showing

of “leverage or “influence” concerning the decisions at issue.

RESPECTFULLY

SUBMITTED,

MARTY L. ROWLEY

Texas SBN: 17347800

SHAWN D. TWING

Texas SBN: 00798008

Sprouse, Smith & Rowley, P.C.

801 S. Fillmore, Suite 600

Amarillo, TX 79105-5008

(806) 468-3300

ATTORNEYS FOR PETITIONER

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(Any footnotes trail end of each document)

No. 99-11194

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

YOLANDA N BROWN,

Plaintiff -Appellee,

VERSUS

RIO PETROLEUMI INC, ET AL

Defendants

RIO PETROLEUM, INC; JOHN WALKER, JR

Defendants-Appellants.

Appeal from the United States District Court

For the Northern District of Texas

(2 ;97-CV-440)

Before DUHE and PARKER, Circuit Judges and LINDSAY,

District Judge .”

PER CURIAM”

Defendants Rio Petroleum, Inc. and John walker, Jr. appeal

the district court’s denial of Defendants’ motions for

judgment as a matter of law, for new trial and for remittitur,

as well as the damages awarded by the jury to Plaintiff

Yolanda N. Brown. We affirm.

I. FACTS AND PROCEDURAL HISTORY

Brown was employed by Rio petroleum from January 1992,

to September 1996, to perform receptionist and clerical

—"

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duties. Rio Petroleum is a small company in Amarillo, Texas,

engaged in the business of exploration, production, and sale

of oil and natural gas. Brown was the only African-American

in an office staff of nine (and later in Brown’s tenure, ten)

employees. Brown received raises and incentive bonuses,

participated in company social functions, and enjoyed good

relations with her supervisors and co-workers at the

beginning of her employment.

Over time, her clerical job duties were assigned to other

employees and she was reassigned to perform janitorial and

yard maintenance tasks. She also suffered humiliations

including having mail repeatedly dropped on her from a

second floor balcony, being questioned about her and her

children’s participation in Juneteenth and Martin Luther

King, Jr. Day celebrations, and being referred to at work as

“our little Black nanny.”

Brown was given a written separation notice in September

1996, signed by Rio Petroleum Vice President Carol Pierce

that stated:

In your four years of employment with Rio, we have

endeavored to have you perform various tasks. However,

other than arranging birthday/party celebrations and attending

receptionist activities during conference meetings, you failed

to successfully perform and master tacks given you. These

inabilities resulted in, the transference of work and

responsibilities to others. Recall that I have had several

conversations with you in the past regarding your job

performance, and I have seen no improvement. Therefore, we

must terminate your employment effective immediately

Brown brought suit pursuant to Title VII of the Civil. Rights

Act of 1964, as amended! 42 U.S.C. § 2000e (1994), alleging

that Rio Petroleum discriminated against her on the basis of

race and sex. Brown also asserted causes of action against

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Rio Petroleum President Barrett Pierce for sexual harassment

and intentional infliction of emotional distress, and against

Rio petroleum Vice President John Walker, Jr. for assault and

battery.

The case was tried to a jury. At the close of Brown’s case-in-

chief, the district court granted judgment as a matter of law to

Defendants on all claims except Brown’s allegation that she

had been subjected to disparate treatment on account of race

with regard to conditions of employment other than pay and

the allegation that Walker had committed assault and battery

against her by dropping mail on her. The jury returned a

verdict in Brown’s favor on the two remaining claims and

awarded her $60,000 for mental anguish on her disparate

treatment claim, as well as $15,000 for mental anguish and

$25,000 in exemplary damages on the assault and battery

claim against Walker. Defendants filed motions for judgment

as a matter of law or for new trial on Brown’s remaining

claims, which the district court denied. The district court

granted in part and denied in part Defendants’ motion for

remittitur, reducing the jury verdict against the company to

$50,000, the applicable statutory cap.

Il. ANALYSIS

A. Standard of review

Rio Petroleum appeals the district court’s denial of its motion

for judgment as a matter of law, in which it alleged that the

trial evidence was not sufficient to support a verdict for

Brown on her disparate treatment claim. We review that

denial de novo, Sharp v City of Houston, 164 F.3d 923, 928

(Sth Cir. 1999), considering all of the evidence in the record.

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

120 5. Ct. 2097, 2110 (2000). We view the evidence and all

reasonable inferences in favor of the non-movant; if

reasonable persons could differ in their interpretation of the

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evidence, the motion should be denied. /d. only if the facts

and reasonable inferences are such that reasonable jurors

could not reach a contrary verdict may the court properly

grant such motion. Id.

Rio Petroleum moved, in the alternative, for new trial which

the district court also denied. We affirm that denial unless the

district court abused its discretion in refusing to find that the

verdict is against the great weight of the evidence. Whitehead

v. Food Max of Miss., Inc., 163 F.3d 265, 269 (Sth Cir.

1996). .

Rio Petroleum also complains that, although the district court

granted its motion for remittitur, it erred in failing to remit

the damages awarded by the jury to a nominal sum. We

review the district court’s order of remittitur for abuse of

discretion. See Denton v. Morgan, 136 F.3d 1038, 1046 (Sth

Cir. 1996).

B. Disparate Treatment Claim

Brown alleged, and the jury found, that Rio Petroleum

intentionally discriminated against her because of her race in

the conditions of her employment. The district court

instructed the jury that Brown “must prove that Rio

Petroleum considered her race as a motivating factor in

making one or more decisions concerning the conditions of

her employment.” The conditions of employment which

Brown alleged arose from intentional racial discrimination

included the assignment of job duties, a reprimand for

making personal phone calls, and failure to expeditiously file

a worker’s compensation claim.

Brown had the burden of proving all the elements of a prima

facic case of discrimination. The district court instructed the

jury that Brown must prove:

Sa

is That she was denied or deprived of

conditions of employment;

y That she was qualified to receive or

retain the conditions of employment denied;

and

3. That the conditions of employment she

was denied were instead given to other

similarly situated employees who were not

members of her protected class (African-

American); and

4. That Plaintiff's race was a motivating

factor in the decision to deny her the

conditions of employment.

See St. Mary’s Honor Center v Hicks, 509 U.S. 502, 515

(1993).

Rio Petroleum argues on appeal that Brown’s evidence did

not establish a prima facie case of disparate treatment

concerning the delay jn filing her worker’s compensation

claim. That claim arose from an on-the-job injury Brown

sustained-in 1995, when she was involved in an automobile

accident while running an errand for Rio Petroleum. Brown

testified that she reported the injury to her supervisors, who

advised her to contact the auto insurance company rather than

filing a workers’ compensation claim. Brown raised the issue

again in September 1996, during her termination interview,

after which the claim was promptly tiled. Rio Petroleum

points out that the record contains no evidence that Brown’s

worker’s compensation claim was treated differently than

claims by similarly situated non-minority co-workers. The

trial testimony established only that worker’s compensation

claims by injured “pumpers” were generally prepared and

filed within a day. The pumpers were not office workers and

therefore not similarly situated to Brown. Further, there was

no evidence identifying the race of any injured pumper. The

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record supports Rio Petroleum’s contentions on both counts.

That is, Brown did not offer evidence that the pumpers were

similarly situated- in fact, there is undisputed evidence that

they were not similarly situated nor that they were not

African-Americans

Rio Petroleum next argues that Brown’s claim regarding

personal use of the phone did not involve actionable conduct

on the part of Rio Petroleum. Brown testified that, while

other non African-American clerical personnel were allowed

personal phone calls at work, she was singled out to be

chastised for personal phone use. Rio Petroleum contends

that when Brown’s supervisor counseled her about excessive

personal phone use during a performance evaluation, it was

not an employment action rising to the level of Title VII

scrutiny. Similarly, Rio Petroleum argues that there was no

evidence that the reassignment of job duties resulted in any

“detriment” to Brown’s job and therefore was not an

actionable employment decision.

We must first decide if Brown’s allegations amount to

discrimination with respect to the conditions of her

employment, as that term is used in 42 U.S.C. 5 2000e-2(a)

(1). Appellant’s contention that Brown’s claims do not raise

viable claims of discrimination under Title VII is bottomed

on language and reasoning from cases involving retaliation

claims under § 2000e3(a). In that context, we have held that

Title VII was designed to address ultimate employment

decisions, not to address every decision made by employers

that arguably might have some tangential effect upon those

ultimate decisions. See, e.g., Dollis v. Rubin, 77 F.3d 777,

781-82 (5 Cir. 1995). We mentioned as examples of

ultimate employment decisions hiring, granting leave,

discharging, promoting, and compensating an employee. Id.

Appellant’s argument in this regard fails because the

retaliation jurisprudence they rely on is not on point; this

appeal does not concern a retaliation claim. Rather, Brown

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prevailed at trial on her allegation that the conditions of her

employment had been discriminatorily altered. Brown

contends, and Rio Petroleum conceded at oral argument, that

Title VII makes it unlawful to discriminate against an

individual with regard to the conditions of employment

whether or not an employer has made an_ ultimate

employment decision on the basis of race. Verbal

intimidation, ridicule, and insults may alone be sufficiently

severe or pervasive to alter the conditions of employment and

violate Title VII. See DeAngelis v. El. Paso Nun. Police

Officers Ass'n, 51 Y.3d 591, 593 (Sth Cir. 1995), citing

Harris V. Forklift Systems, Inc., 510 U.S. 17, 22 (1993).

Brown’s allegations that her job duties were reassigned in a

discriminatory manner and that she was denied the same use

of the telephone for personal calls allowed to non-A frican-

American employees, taken as a whole, state a viable Title

VII claim of discrimination with regard to the conditions of

her employment. See Burlington Industries, Inc. v. Ellerth,

524 U.S. 742, 761 (1998) (holding that a Title VII claimant

can prove her claim by establishing a tangible employment

action, that is, an employment action which “constitutes a

Significant change in employment stauts, such as hiring,

firing, failing to promote, reassignment with significantly

different responsibilities, or a decision causing a significant

change in benefits.” (emphasis added))

Next we must determine whether the district court erred in

concluding that Brown established a prima facie case of

discrimination. Specifically, Rio Petroleum contends that

there is no evidence from which the jury could conclude that

Brown was qualified to perform the job duties that were

reassigned to other employees. We address this issue along

with Rio Petroleum’s parallel argument: its proffered non-

discriminatory reason for reassigning Brown’s job duties is

that Brown was “not adequately performing her job duties.”

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First, Rio Petroleum transferred the responsibility of

completing the Texas Railroad commission reports to a

Caucasian employee hired after Brown. Brown prepared and

filed the reports for approximately two years from the time

she was initially hired. In an effort to establish that Brown

was not qualified to perform that part of her job, Rio

Petroleum relied on evidence that Brown made errors on

nineteen of the reports that she prepared. However, the

evidence did not show that the errors were serious or that, in

order to be qualified for the job, one must produce error-free

reports. Brown’s training consisted only of a supervisor

showing her how to do the reports for the first two or three

months. Based on her supervisors’ explicit assessment that

she was satisfactorily performing this function, Rio

Petroleum gave her a raise of $50.00 a month and additional

responsibility. Over time, as she mastered her assigned tasks,

Rio Petroleum added responsibility for division orders,

geology files, and some accounting functions. Viewing this

evidence in the light most favorable to Brown, a rational jury

could have concluded that Brown was qualified for these

assignments, given that Rio Petroleum, rather than

disciplining her, providing her with additional training or

indicating in any way that the quality of her work was

unsatisfactory, continued to add to her job responsibilities.

In addition to transferring the Railroad Commission reports,

Brown’s responsibility for the land and well files was

reassigned to a subsequently hired Caucasian clerical worker.

Brown’s phone duties were decreased, but not eliminated

when Rio Petroleum installed an automated phone system. In

place of these various duties, Brown was required to water

trees, even though there was a sprinkler system in place. She

was required to sweep and clean the basement and wash the

windows, although Rio Petroleum had a janitorial service.

She was also given the responsibility of caring for an infant

when Rio Petroleum gave one of its other clerical workers

permission to bring her baby to work. As a part of the

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transferred duties, Rio Petroleum moved Brown’s

workstation from the front reception area to a desk faced

toward the wall in the corner of the file room, with no phone

or typewriter. She was told that she had continued

responsibility f or receptionist duties. When she heard the

phone ring, she had to get up and go to another employee’s

desk to answer it. When visitors arrived, she was summoned

to the front to greet them and take care of any related

receptionist duties.

Rio Petroleum cites evidence that Brown made errors in

filing, in a bank deposit, in taking down phone messages and

in distributing incoming faxes for the proposition that she

was not qualified for the responsibilities that were transferred

to other employees. While Brown did not deny making some

errors, there is no evidence that Rio Petroleum considered

Brown unqualified for receptionist duties. Indeed, Rio

Petroleum even acknowledged in her termination letter that

she performed that job satisfactorily. Finally, the jury was

free to disbelieve Rio Petroleum’s contention that the files

were transferred because they were ‘“‘a mess.”

Based on the foregoing, we conclude that the record

contained sufficient evidence to support the jury verdict for

Brown on her claims of disparate treatment on the basis of

reassigned job duties. Brown was the only African-American

employee in Rio Petroleum’s office and the only one

subjected to the demeaning employment conditions described

at trial. Moreover, a jury was free to reject Rio Petroleum’s

contention that Brown was simply an incompetent employee,

particularly in light of evidence that she was given raises and

additional duties during the early days of her employment

after her supervisor concluded that she had mastered her

original responsibilities. Therefore a reasonable jury could

have concluded that race was a cause for Rio Petroleum’s

treatment of Brown. In sum, the evidence was sufficient to

establish Brown’s prima facie case and to rebut Rio

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Petroleum’s proffered non discriminatory reasons for its

decisions. Reeves, 530 U.s. 923 (2000). Therefore, the

district court did not err in denying Rio Petroleum’s motion

for judgment as a matter of law.

Cc. Challenge to the Amount of Damages Awarded by

the Jury

Rio Petroleum and Walker’ contend that the district court

abused its discretion in failing to remit the jury award of

damages to a nominal amount.

Rio Petroleum complains that the district court incorrectly

stated in its remittitur order that "[trial] testimony established

that Appellee was subjected to an offensive act of a sexual

nature by Defendant Barrett W. Pierce, then President of Rio

Petroleum, Inc. Rio Petroleum argues that they chose to leave

the evidence of Pierce’s misconduct unchallenged after the

district court granted judgment as a matter of law on Brown’s

sexual harassment claim because that was the only claim to

which it was relevant. The record does not support Rio

Petroleum’s argument. Brown specifically testified that

Pierce singled her out for unwelcome sexual advances

because she was African-American and that he did not

subject her Caucasian co-workers to the same treatment

because he believed that African-American females are

"prostitutes” or “easy." Therefore, the district court did not

err in crediting the uncontradicted evidence of Pierce’s race-

based sexual misconduct in evaluating the record for

purposes of remittitur.

Rio Petroleum and Walker next contend that there is

insufficient evidence to support the jury’s award of damages

to Brown for emotional distress because she did not show a

sufficient causal connection between the statutory violation

and the alleged injury. See Gore v. Turrer, 563 F.2d 259, 164

(Sth Cir. 1977). Further, defendants contend that the

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evidence did not show the specific nature and extent of the

emotional harm caused by the violation. See Carey v. Piphus,

435 U.S. 247, 255-56 (1978).

In proving mental damages a claimant’s testimony alone may

not be sufficient to support anything more than a nominal

damage award. Brady V. Port Bend County, 145 F.3d 691,

718 (Sth Cir. 1998). Corroborating testimony or medical or

psychological evidence may be necessary to meet the

specificity requirements for establishing emotional distress

damages. Id. “Emotional harm may manifest itself, for

example, as sleeplessness, anxiety, stress, depression, marital

strain, humiliation, emotional distress, loss of self esteem,

excessive fatigue, or a nervous breakdown.’ Id. “Physical

manifestations of emotional harm may consist of ulcers,

gastrointestinal disorders, hair loss or headaches.’ Id.

Brown’s testimony included her subjective emotional

responses to the various incidents, as well as a description of

her inability to trust or have any kind of intimacy with any

men as a result of her ordeal. She testified that she took

classes to deal with the stress. Brown’s two grown daughters

also testified, corroborating and expanding the evidence that

Brown’s work at Rio Petroleum resulted in stress, weight

loss, graying hair and anxiety. In addition, the jury was able

to observe Brown when she broke down on the witness stand

while testifying about the mail-drop assaults. Brown testified

that Walker would call out to her from an upper balcony, and

when she looked up, he would throw the mail down on her,

calling out "air mail,” laughing and hitting her in the face.

This activity continued, even after she specifically asked him

to stop. She testified that it was degrading, especially on the

occasions when he did it in front of strangers or in front of

her daughter. We conclude that the evidence in this record

supports the jury’s award of compensatory and punitive

damages based on Rio Petroleum’s intentional discrimination

in violation of Title VII and the assault and battery by

Walker.

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CONCLUSION

Based on the foregoing, we affirm the judgment for Brown.

AFFIRMED

Footnotes

“District Judge of the Northern District of Texas, sitting by

designation. -

**Pursuant to 3m CIR. R. 47.5, the Court has determined that

this opinion should not. be published and is not precedent

except under the limited circumstances set forth in 5" CIR.

R. 47.5.4.

' Rio Petroleum argues that the comments about Brown’s

choice to celebrate certain holidays and the label “little Black

nanny” should not be weighed as evidence of racial bias

because they were “stray remarks.” A reasonable jury may

have concluded that the remarks concerning the celebrations

indicated racial animus and that the speakers (Walker and

Barrett Pierce) exerted influence over the decisionmaker,

Carol Pierce. The remarks were therefore circumstantial

evidence of racial discrimination by Rio Petroleum which the

jury could consider. See generally Russell v. McKinney

Hosp. Venture, 235 F.3d 219, 2000 WL 1785541 at *5-6 (Sth

Cir. 2000) (explaining that Reeves v. Sanderson Plumbing

Products, Inc., 120 S. Ct. 2097 (2000) modified Fifth Circuit

stray remark jurisprudence so that remarks which evidence

discriminatory animus made by a speaker who has leverage

or influence over the decisionmaker may be considered

circumstantial evidence of discrimination by an employer).

On the other hand, the “little Black nanny” label was coined

by a co-worker who did not exert such influence at Rio

Petroleum. We therefore agree that a co-worker’s reference

to Brown as a little Black nanny was a stray remark, which

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did not evidence bias on the part of Rio Petroleum

decisionmakers.

On appeal, Walker contests the damages awarded, but not

his liability on Brown’s assault and battery claim.

> Brown’s marriage ended in divorce during her employment

at Rio Petroleum. However, because she did not attribute her

marital stress to her problems at work, we do not consider

that in determining the sufficiency of the evidence on

damages.

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CIVIL ACTION CAUSE NUMBER

2:97-CV-440-J

TN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRTCT OF TEXAS

AMARILLO DIVISION

YOLANDA N. BROWN,

PLAINTIFF

V.

RIO PETROLEUM, INC., et al.,

DEFENDANTS.

ORDER

This is a Title VII case, Before the Court are Plaintiff

Yolanda N. Brown’s motion for entry of judgment on the

jury’s verdict and Defendants’ renewed motion f or judgment

as a matter of law or, in the alternative, for a new trial. The

Court will enter judgment for Plaintiff.

Plaintiff alleged intentional discrimination on the basis of her

race (black) by Defendant Rio petroleum, Inc., Plaintiff's

employer. She further alleged assault. and battery by

Defendant John Walker, Jr. The jury awarded Plaintiff

$60,000 in, mental anguish damages against Defendant Rio

Petroleum. The jury awarded $15,000 in actual damages and

$25,000.00 in punitive damages against Defendant Walker.

Plaintiff concedes in her response to Defendants’ motion that

the jury’s damage award against Rio Petroleum exceeds by

$10,000 the statutory cap applicable to her Title VII claim.

See 42 U.S.C § 1981a(b) (3) - Plaintiff agrees to Defendants’

.

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request that the jury’s award be remitted to a maximum of

$50,000 in compensatory damages. She prays for judgment

for $50,000 against Rio Petroleum and for $40,000 against

Defendant Walker.

Plaintiff Yolanda Brown was hired by Rio Petroleum, Inc., as

a receptionist and clerical office worker. During the relevant

time Defendant Walker was a Rio Petroleum supervisor.

Testimony From trial witnesses established that Plaintiff was

reassigned from her inside office duties to menial outdoor

tasks. Testimony established that Plaintiff was subjected to

an offensive act of a sexual nature by Defendant Barrett W.

Pierce, then President of Rio Petroleum, Inc. Testimony

established that. She was battered by Defendant Walker,

who dropped letters and packages upon her and her desk

from a second floor balcony over her first floor work area.

The evidence at trial adequately established that Plaintiff was

subjected to intentional discrimination in employment and

was humiliated in front of co-workers and non-employees

because of her race. The evidence established that Plaintiff

Brown suffered emotional harm and mental anguish as a

consequence of these acts. The evidence supports the jury’s

finding of Rio Petroleum's intentional discrimination in

violation of Title VII and the assault and battery by Walker.

The evidence supports the jury's award of compensatory and

punitive damages. Defendants’ motion for a new trial or for a

take nothing judgment on the basis of no evidence or

insufficient evidence to support the jury’s findings of liability

and/or damages is therefore denied. Cf. Patterson vs. P.H.P.

Healthcare Corp, 90 F.3d 927, 937-41 Cir. 3995), cert.

denied, 117 S.Ct. 767 (1997) (an award of more than nominal

mental anguish damages requires corroborating testimony of

the existence, nature, and. severity of the emotional harm

suffered by a Title VII plaintiff).

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Given Plaintiff's concession that the applicable statutory cap

limits recoverable compensatory damages to maximum of

$50,000 and based upon the corroborating trial testimony and

evidence of the nature, severity and duration of emotional

harm and mental anguish suffered by Plaintiff Yolanda

Brown, Plaintiff's motion for judgment is granted. The Court

will enter judgment for Plaintiff against Defendant Rio

Petroleum, Inc., in the amount of $50,000 arid against

Defendant John Walker, Jr. in the amount of $40,000.

It is SO ORDERED.

Signed this the 29"" day of September, 1999.

MARY LOU ROBINSON

UNITED STATES DISTRICT JUDGE

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No. 99-11194

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

YOLANDA N. BROWN

Plaintiff - Appellee

V.

RIO PETROLEUM INC.; ET AL.

Defendants

RIO PETROLEUM INC.; JOHN WALKER, JR.

Defendants - Appellants

Appeal from the United States District court of the Northern

District of Texas, Amarillo

ON PETITION FOR REHEARING

Before DUHE and PARKER, Circuit Judges and LINDSAY,

District Judge.”

PER CURIAM:

IT Is ORDERED that the petition for rehearing is DENIED.

ENTERED FOR THE COURT:

United States Circuit Judge

Footnotes

*District Judge of the Northern District of Texas, sitting by

designation.