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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2002
- **Citation:** 534 U.S. 1082

## Text

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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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i
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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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:

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{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

la

(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

—"

2a

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

ta
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

7a

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.”

8a

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

9a

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

10a

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

lla

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.

12a
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

13a

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.

l4a

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’

.
|

15a

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

17a
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0707%3A1. Public record. Not legal advice.