IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 98-30318
Summary Calendar
____________________
DELENE GRIFFIN; LORI TERREBONNE; BUFFY PLAISANCE,
Plaintiffs-Appellees,
v.
DELCHAMPS, INC.,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(96-CV-233-S)
_________________________________________________________________
March 12, 1999
Before KING, Chief Judge, BARKSDALE and STEWART, Circuit Judges.
KING, Chief Judge:*
Defendant-appellant Delchamps, Inc. appeals from the
district court judgment entered after the jury returned an
adverse verdict in this lawsuit brought pursuant to Title VII, 42
U.S.C. §§ 2000e to 2000e-17. We affirm in part and reverse in
part the judgment of the district court, and remand to the
district court for entry of an amended judgment.
*
Pursuant to 5TH 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
1
I. BACKGROUND AND PROCEDURAL HISTORY
Plaintiffs-appellees Delene Griffin, Lori Terrebonne, and
Buffy Plaisance (B. Plaisance)(collectively, plaintiffs), former
employees of defendant-appellant Delchamps, Inc. (Delchamps),
filed suit on January 18, 1996, alleging the existence of a
hostile work environment based on sex, constructive discharge,
and intentional infliction of emotional distress. The district
court conducted a jury trial from May 19, 1997 to May 21, 1997.
After the district court denied Delchamps’s motion for judgment
as a matter of law made at the close of plaintiffs’ case and re-
urged at the close of evidence, the jury returned a verdict in
favor of plaintiffs, awarding them back pay, front pay,
compensatory damages, and punitive damages. On November 12,
1997, the district court issued a judgment modifying the monetary
awards, which was made final by the district court’s March 13,
1998 denial in part of plaintiffs’ motion to amend the judgment.1
Delchamps filed a timely notice of appeal on March 31, 1998.
The facts pertinent to this appeal are as follows:
Plaintiffs all were employed by Delchamps in Cut Off,
1
The ultimate damage awards were as follows: Griffin--
$9200 in back pay, $2690 in front pay, $35,000 in compensatory
damages, $40,000 in punitive damages, and $15,000 for intentional
infliction of emotional distress; Terrebonne--$3400 in back pay,
$1506 in front pay, $15,000 in compensatory damages, $58,400 in
punitive damages, and $30,000 for intentional infliction of
emotional distress; and B. Plaisance--$9200 in back pay, $112 in
front pay, $25,000 in compensatory damages, $40,000 in punitive
damages, and $15,000 for intentional infliction of emotional
distress.
2
Louisiana, until their resignations in July 1995.2 During their
tenures with Delchamps, Griffin and B. Plaisance worked as
cashiers, dairy clerks, and frozen food clerks. Terrebonne
worked as a produce clerk. All three contend that from mid-1994
until the time of their resignations in mid-1995, a hostile work
environment based on their sex existed, which led ultimately to
their constructive discharge.
During the relevant time period, Allen Berthelot served as
store manager, Kelly Kirchhoff and Earl Hebert served as
assistant managers, Kerry Plaisance (K. Plaisance) was the head
stock clerk,3 and Tony Leger was the meat market manager.
Plaintiffs testified at trial that, during their employment,
male employees engaged in “chrome shots,” meaning they would use
the polished mirrors underneath the refrigerator cases to look up
women’s skirts and shorts. According to Griffin, the chrome
shots began as early as 1993, and increased in frequency in 1994
to a regular weekly basis, with more and more male employees
participating as time went on. Among other male employees,
plaintiffs observed store manager Berthelot, K. Plaisance, and
Leger engage in chrome shots.
Plaintiffs also testified that they observed male employees,
2
Griffin had been employed at Delchamps’s Cut Off,
Louisiana store since 1982, and Terrebonne had been employed
there since 1990. B. Plaisance began employment with Delchamps
in 1987 at a different location, and transferred to the Cut Off,
Louisiana store in 1991.
3
K. Plaisance and plaintiff-appellee B. Plaisance are not
related.
3
including Berthelot, K. Plaisance, and Leger, pass around women’s
magazines. On one occasion, Berthelot showed Griffin a magazine
containing pictures of women’s breasts, and later showed the same
pictures to a truck driver in her presence. Terrebonne testified
that K. Plaisance showed her a magazine containing pictures of
women’s breasts, and that she overheard Berthelot discuss a
magazine depicting homosexual men. B. Plaisance testified that,
in 1995, she began to walk abruptly away from store manager
Berthelot when he showed her magazines with sexual pictures such
as women’s bare breasts. On one such occasion, Berthelot pulled
her aside and asked her whether she had a “problem.” She
responded that she believed the workplace should be a more
professional environment and that personal matters should be left
at home. Berthelot responded that she had an “attitude problem.”
When B. Plaisance asked what Berthelot wanted from her, he told
her he wanted her to laugh at their jokes and “have fun with it.”
She replied that she would not, and he again told her that she
had an attitude problem. B. Plaisance testified that she felt
Berthelot was threatening her job by stating that she had an
attitude problem.
Plaintiffs further testified that they witnessed male
Delchamps employees, including Berthelot, K. Plaisance, and
Leger, follow female customers around the store. Griffin
testified that Berthelot, the store manager, would call other
male employees on the store’s market phone to inform them that an
attractive woman was entering the store, or he would ask them to
4
meet in a certain aisle over the public address system, at which
point they would follow the customer around. Plaintiffs
testified that they overheard male employees guessing the color
of female customers’ underwear or whether they were wearing bras.
Griffin stated that she overheard the men comment on the
appearances of female customers, including a remark by Leger
about a woman’s breasts--”Wouldn’t you like to smother in that?”
B. Plaisance testified that this behavior occurred once or twice
a week in 1994, and continued in 1995. Terrebonne witnessed
this behavior approximately once a week in 1994, and almost every
day in 1995. According to Griffin, the men also played a game
they called “the stock game,” in which the men would state
whether they would be willing to “do” a particular customer.
Griffin and B. Plaisance testified about an occasion on
which Griffin overheard Berthelot and K. Plaisance discuss B.
Plaisance’s breasts when she entered the store on her day off.
B. Plaisance stated that she wore a short-sleeved ribbed, fitted
shirt, and that K. Plaisance and Berthelot had stared at her
chest, making her feel very uncomfortable. According to Griffin,
K. Plaisance remarked that he had not realized that B. Plaisance
was so “stacked,” and Berthelot nodded in agreement.
All three plaintiffs testified that they overheard male
employees, including K. Plaisance, Berthelot, and John Lirette,
discuss videotapes with lurid sexual content. Specifically, one
videotape featured sexual acts between women and animals.
Plaintiffs overheard male employees discuss a scene from the
5
videotape in which a woman had sex with a horse.4 Terrebonne
also overheard Berthelot and K. Plaisance discuss another
videotape in which, during a skit, a naked woman ran around a
stage.
All three plaintiffs further testified that K. Plaisance
frequently used offensive language including “fuck” and “bitch,”
and that his language worsened during 1995. Griffin testified
about an occasion on which K. Plaisance informed her that he had
received a “blow job” from his wife through the window of his new
pick-up truck, and that it was the best “blow job” he had ever
received. Terrebonne also testified that K. Plaisance told her
that his wife gave him a “blow job” through the back window of
his new truck to “bless” it.
On another occasion, K. Plaisance questioned Griffin across
the sales floor from twenty feet away as to whether she gave her
husband “blow jobs.” Griffin was offended by his question, and
told him not to speak to her that way. K. Plaisance replied that
he was going to ask her husband whether she gave him “blow jobs.”
Griffin walked away.
B. Plaisance testified that K. Plaisance would frequently
remark that he would like to have sexual relations with
particular female customers. According to her testimony, K.
Plaisance’s language became worse in 1995. She testified that he
4
According to Terrebonne, she also overheard Lirette say,
“there was this woman that was fucking a goat,” and overheard K.
Plaisance say, “there was this woman that was fucking a dog,” and
“she was sucking the dog’s dick, and then the dog was licking her
pussy.”
6
once asked her if she “shaved [her] pussy.” When she replied
that it was none of his business, he laughed and said “You know
you like it.” She further testified that, in 1995, K. Plaisance
asked her if she would “fuck” him, to which she responded that
she did not want him to talk to her that way.
Terrebonne testified that twice a week K. Plaisance would
describe an affair he was having with a married woman, stating
that she gave good “blow jobs” and that he would like to “fuck”
her again. According to Terrebonne, he also described an
occasion on which he had taken a woman to a bowling alley, tried
to “fuck her,” but because she was “too dry” she gave him a “blow
job” instead.
Terrebonne further testified that K. Plaisance frequently
made vulgar comments to her about customers, such as “Oh, I’m
going to come on her,” or “I bet her pussy stinks.” Terrebonne
testified that, by 1995, K. Plaisance was directing offensive
comments to her every day. For example, she testified that every
day he would say to her, “When are you going to let me fuck you?
I just want to fuck you once, maybe twice,” almost every day he
would tell her that he wanted to “come” on her, about three times
a week he would grab his crotch and tell Terrebonne to “suck
this,” every day he would ask her, while she was working in the
cooler, if her nipples were hard, and once he asked her if she
was wearing underwear. According to Terrebonne, K. Plaisance
ignored her repeated requests to leave her alone.
In addition to the vulgar language, B. Plaisance testified
7
about an occasion on which assistant manager Kirchhoff walked
into the women’s restroom after she had passed him on her way
into the restroom. She was standing outside the stall with her
shirt tucked under her chin, trying to zip her pants, when
Kirchhoff walked in. Both her bra and her underwear were
exposed. Kirchhoff stood and stared, and B. Plaisance became
upset and ran out of the restroom. She reported the incident to
assistant manager Hebert, who did not respond, and to store
manager Berthelot, who rolled his eyes and walked away.
Terrebonne testified concerning three occasions on which K.
Plaisance fondled her bottom. The first incident occurred in
January 1995 when K. Plaisance brushed past her and rubbed his
hand on her bottom. Terrebonne turned around, hit him, and told
him not to do it again. He then tried to do it again, and said,
“Oooh, that felt good, I’m going to do it again.” She again told
him to leave her alone, and was upset by the incident. The next
incident occurred in early May 1995. K. Plaisance passed
Terrebonne in an aisle and pinched her on the bottom. She told
him not to do it again, and he made a motion toward her breast as
though he were going to touch it. She again told him to leave
her alone, at which point he knelt down on a case of merchandise,
scooted it over in front of her, and said, “Well, I’m going to
accidentally touch your breast.” Terrebonne then walked away.
The final incident occurred in late May 1995. K. Plaisance
approached Terrebonne from behind and grabbed her bottom with
both hands as she drank from a water fountain. She told him to
8
stop, and he said, “Come on, you know you like it.” This
incident caused Terrebonne to cry. She later told B. Plaisance
about the incident after B. Plaisance witnessed her crying.5
Plaintiffs made several complaints to their supervisors
about the behavior occurring at the store. At the end of 1994 or
the beginning of 1995, B. Plaisance told assistant manager Hebert
that she was offended by the chrome shots and by male employees
following around female customers. She testified that Hebert did
not say much in response, but did not seem surprised. As
discussed above, B. Plaisance also testified that she informed
Hebert about the incident in which assistant manager Kirchhoff
walked into the women’s restroom while she was partially
undressed, but that Hebert did not respond. She then informed
Berthelot of the incident, but he responded by rolling his eyes
and walking away, and seemed upset with her after she reported
it.
In June 1995, plaintiffs and another female Delchamps
employee requested a meeting with Berthelot to discuss the
working conditions at the store. At the meeting, B. Plaisance
told Berthelot that she was offended by K. Plaisance’s vulgarity
and informed him of one of the incidents in which K. Plaisance
5
B. Plaisance testified that she witnessed K. Plaisance
come out of the back of the store, laughing with another male
employee. K. Plaisance then asked her, “What would you do if I
would grab you on the ass?” She responded, “I would hit you.”
He replied, “Yeah, I thought so.” At this point, she went into
the back of the store and observed Terrebonne crying. She
testified that Terrebonne later told her that K. Plaisance had
grabbed Terrebonne’s bottom.
9
had touched Terrebonne’s bottom. Berthelot’s responded by
pretending he was playing the violin--a gesture that signaled to
B. Plaisance that he thought they were “just a bunch of women up
there whining.” At that point, Berthelot left the meeting. When
he returned a few minutes later, he began to talk about
scheduling, an issue that the women had not raised during the
meeting. B. Plaisance attempted to return the discussion to the
inappropriate behavior occurring at the store, but Berthelot
merely continued discussing scheduling. The entire meeting
lasted ten or fifteen minutes. Conditions at the store did not
improve after the meeting. In fact, B. Plaisance testified that
the offensive behavior continued, and that male employees began
to treat the women with hostility. For example, she testified
that Berthelot became very abrupt with her, jerked papers out of
her hands, and gave her fewer breaks.
At the end of June 1995, Griffin asked Berthelot to call
Johnny Smith, the area supervisor, to come in for a meeting.
Smith came to the store that afternoon and met separately with
Griffin, B. Plaisance, and Terrebonne. Berthelot was present at
each meeting. During Griffin’s meeting, she complained to Smith
about K. Plaisance’s vulgarity. She testified that Berthelot
tried to interrupt her during the meeting, and that she felt
uncomfortable having him there. She further testified that
conditions did not improve after the meeting and that the
10
hostility grew worse.6
During B. Plaisance’s meeting, she informed Smith about K.
Plaisance’s vulgar language, about the episode where K. Plaisance
had grabbed Terrebonne’s bottom, and about a question that she
had heard that Berthelot had asked K. Plaisance--“was he getting
any from [Terrebonne]?” She testified that Smith turned to
Berthelot and asked whether that was true. Berthelot denied it,
and Smith appeared to take his denial at face value. B.
Plaisance testified that she felt uncomfortable having Berthelot
at the meeting because she felt he was part of the problem and
because she feared retaliation. According to her, conditions
worsened after the meeting.
During Terrebonne’s meeting, she told Smith about the times
that K. Plaisance had touched her without permission and about K.
Plaisance’s vulgarity. Terrebonne testified that she felt
uncomfortable with Berthelot’s presence at the meeting and that
she felt she could not tell Smith everything she wanted to
because Berthelot was there. She testified that, after the
meeting, the behavior and the hostility continued. For example,
she testified about an incident in which Leger, appearing very
upset, came “flying toward” her with a meat cart. The meat cart
hit the buggy she was using, which hit her. She was very upset
6
Later, near the end of Griffin’s employment, she also
complained to Smith about K. Plaisance’s question to her
regarding whether she gave her husband “blow jobs.”
11
by the incident because she felt Leger was trying to hurt her.7
Smith later issued K. Plaisance a written reprimand, which stated
that off-color jokes and innuendos giving the appearance of
sexual harassment would not be tolerated.
All three employees resigned their positions in July 1995,
and went to work at a new Wal-Mart superstore opening in the
area.
On appeal, Delchamps argues that the evidence was
insufficient to support the jury’s verdict because plaintiffs did
not prove the existence of a hostile work environment based on
sex, that the evidence did not establish that Delchamps is
legally responsible for any hostile work environment that may
have existed, that plaintiffs did not prove constructive
discharge, that plaintiffs did not prove intentional infliction
of emotional distress, that certain damage awards were
inappropriate, that the district court erroneously instructed the
jury, and that the district court erred by admitting certain
testimony. We examine each contention in turn.
II. STANDARD OF REVIEW
This court must consider the evidence in the light most
favorable to the prevailing party below, drawing all reasonable
inferences in favor of the jury’s verdict. See Weller v.
Citation Oil & Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996);
7
She later complained to Smith about Leger’s behavior. He
appeared unconvinced by her story. She testified that she said
to Smith, “You look at me like you don’t believe me,” to which he
replied, “I believe you to be a truthful person.”
12
Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969). We may
reverse only “if reasonable minds exercising impartial judgment
could not have arrived at the verdict.” Weller, 84 F.3d at 194.
III. DISCUSSION
A. Existence of Hostile Work Environment
In order to establish a hostile work environment sexual
harassment claim, plaintiffs are required to show (1) that they
belong to a protected class; (2) that they were subject to
unwelcome sexual harassment; (3) that the harassment was based on
sex; (4) that the harassment affected a term, condition, or
privilege of employment (i.e., that the harassment was so severe
or pervasive as to alter the conditions of employment and create
an abusive working environment); and (5) that the employer knew
or should have known of the harassment and failed to take prompt
remedial action. See Farpella-Crosby v. Horizon Health Care, 97
F.3d 803, 806 (5th Cir. 1996); Jones v. Flagship Int’l, 793 F.2d
714, 719-20 (5th Cir. 1986). Delchamps challenges the
sufficiency of the evidence to support the jury’s verdict on the
fourth and fifth elements.8
Delchamps first argues that the harassment was not
sufficiently severe or pervasive. Sexual harassment that is so
severe or pervasive that it alters the conditions of employment
and creates an abusive working environment violates Title VII.
See Faragher v. City of Boca Raton, 118 S. Ct. 2275, 2283 (1998);
8
We discuss employer liability (the fifth element) in
section III.B below.
13
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). To be
actionable, the environment “must be both objectively and
subjectively offensive, one that a reasonable person would find
hostile or abusive, and one that the victim in fact did perceive
to be so.” Faragher, 118 S. Ct. at 2283 (citing Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993)). It is necessary
to consider “‘all the circumstances’” in order to determine
whether an environment is sufficiently hostile or abusive,
including the “‘frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or
a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.’” Id. (quoting
Harris, 510 U.S. at 23)).
We have no trouble concluding from the testimony described
above that the evidence was more than sufficient to support the
jury’s determination that plaintiffs were subjected to severe or
pervasive harassment at Delchamps. The Harris factors are all
present. First, the harassment occurred frequently. All three
plaintiffs testified to daily comments and vulgarity, including
Terrebonne’s testimony that K. Plaisance would say to her on a
daily basis that he wanted to “come” on her and that he wanted to
“fuck” her, and her testimony that he would ask her on a daily
basis whether her nipples were hard. All three plaintiffs also
testified that male employees frequently followed females around
the store and engaged in “chrome shots” several times per week.
Second, much of the harassment is severe, including K. Plaisance
14
grabbing his crotch three times per week and telling Terrebonne
to “suck this,” K. Plaisance telling Terrebonne daily that he
wanted to “come” on her and wanted to “fuck” her, K. Plaisance
asking daily whether Terrebonne’s nipples were hard, K.
Plaisance’s frequent discussions of oral sex in front of all
three plaintiffs, K. Plaisance shouting across the sales floor to
ask Griffin whether she gave her husband “blow jobs,” K.
Plaisance’s remarks such as “I bet her pussy stinks” or “the dog
was licking her pussy,” and K. Plaisance asking B. Plaisance
whether she shaved her “pussy.” Third, many of the incidents
described above qualify as humiliating, including K. Plaisance
shouting across the store to ask Griffin whether she gave her
husband “blow jobs.” Moreover, K. Plaisance touching Terrebonne
on her bottom could be construed as physically threatening
because he continued to approach her after she told him to leave
her alone. Finally, the harassment unreasonably interfered with
plaintiffs’ work performance. Several witnesses testified that
Terrebonne and B. Plaisance frequently cried on the job, and that
Griffin became withdrawn and cried on the job. Terrebonne
testified that she cried constantly, frequently had severe
headaches, stomach problems and nausea, and frequently felt tired
and drained. B. Plaisance testified that she cried frequently
and became very withdrawn. Griffin testified that she cried,
felt angry, and tried to work harder. Thus, the evidence amply
supports the existence of a hostile work environment at
Delchamps.
15
The cases cited by Delchamps are distinguishable. See Webb
v. Cardiothoracic Surgery Assocs., 139 F.3d 532, 538-39 (5th Cir.
1998) (affirming district court’s grant of summary judgment
motion because, inter alia, employer took prompt remedial action
after learning of alleged harassment); Weller, 84 F.3d at 194-95
(finding that evidence that supervisor gave plaintiff an article
about the “spirit of Jezebel” was insufficient for jury to find
the existence of hostile work environment); DeAngelis v. El Paso
Mun. Police Officers Assoc., 51 F.3d 591, 595-96 (5th Cir. 1995)
(finding evidence insufficient to support jury verdict on
existence of hostile work environment where harassment complained
of consisted merely of a few written jibes about plaintiff and
female police officers published in newsletter over period of two
and one half years); Gleason v. Mesirow Financial, Inc., 118 F.3d
1134, 1137, 1144-45 (7th Cir. 1997) (affirming grant of summary
judgment to employer where, inter alia, supervisor flirted with
plaintiff’s female relatives, stated that female customers were
“bitchy,” “dumb,” or suffering from “PMS,” told another employee
that he liked her in tighter skirts, stood on his desk to “ogle”
women as they walked by, informed plaintiff that he had spent
weekend at nudist colony, and told plaintiff that he had dreamt
about holding hands with her); Baskerville v. Culligan Int’l Co.,
50 F.3d 428, 430 (7th Cir. 1995) (finding nine incidents over
seven month period insufficient to support jury verdict on
existence of hostile work environment where, inter alia,
supervisor called plaintiff “pretty girl,” made grunting sounds
16
one time plaintiff wore a leather skirt, implied that plaintiff
raised the temperature of his office because she was attractive,
stated that he had left a party early because he did not want to
lose control around the “pretty girls,” and made a gesture
indicating masturbation); Saxton v. American Tel. & Tel. Co., 10
F.3d 526, 528, 534 (7th Cir. 1993) (affirming grant of summary
judgment to employer where supervisor touched plaintiff on leg
while at jazz club, kissed her briefly later that evening, and
“lurched” at her from behind bushes while out on a walk during
lunch); Weiss v. Coca-Cola Bottling Co., 990 F.2d 333, 334-35,
337 (7th Cir. 1993) (affirming grant of summary judgment to
employer where supervisor asked about plaintiff’s personal life,
complimented her, asked her for dates, jokingly called her “dumb
blond,” put his arm around her and tried to kiss her while at a
bar, placed “I love you signs” in her work area, put his hand on
her shoulder at least six times, and tried to kiss her twice);
Scott v. Sears, Roebuck & Co., 798 F.2d 210, 211-12, 213-14 (7th
Cir. 1986) (affirming grant of summary judgment motion to
employer where supervisor asked plaintiff out on dates, winked at
her, suggested that he give her a “rub-down,” and asked what he
would receive from her in exchange for requested advice or
assistance, and where co-worker slapped her buttocks, and another
co-worker stated that she must moan and groan while having sex).9
9
We note that the standard applied in Scott required that,
before the conduct complained of was actionable, it had to “cause
such anxiety and debilitation to the plaintiff that working
conditions were poisoned.” Id. at 213 (internal quotation marks
omitted). The Seventh Circuit later noted that this standard was
17
The incidents to which plaintiffs testified are significantly
more severe and pervasive than those alleged in the above cases.
Delchamps argues in its reply brief that a recent Fifth
Circuit case requires us to find that a hostile work environment
did not exist at Delchamps. See Butler v. Yselta Indep. Sch.
Dist., 161 F.3d 263 (5th Cir. 1998). We find this case
distinguishable. In Butler, we found that a series of anonymous
letters mailed to plaintiffs at their homes by the principal of
the school where plaintiffs worked did not constitute severe or
pervasive harassment.10 See id. at 269. In finding that a
hostile work environment did not exist, we relied on the fact
that the letters were received at home, were sent infrequently
over the time period, and were non-threatening. See id. at 269-
70. The facts of Butler are clearly distinguishable from the
facts of the instant case.
Delchamps argues, however, that after Butler, we are
required to consider a fifth factor, in addition to the factors
outlined in Harris, in determining whether a hostile work
environment existed. Supreme Court precedent establishes that,
while we must consider “all the circumstances,” not every listed
overruled by Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993),
which held that plaintiffs need not prove psychological injury in
order to establish actionable harassment. See Saxton v. American
Tel. & Tel. Co., 10 F.3d 526, 533 (7th Cir. 1993).
10
The letters included statements such as “You are still
trying to control everyone’s life,” “You probably could use a man
in your life to calm some of that frustration down,” “When you
drive down the street you look like you’re pissed off,” and “When
are you going to start dressing like an adult.” Id. at 265.
18
factor need be present in order for a work environment to qualify
as sufficiently hostile or abusive. Harris, 510 U.S. at 23 (“But
while psychological harm, like any other relevant factor, may be
taken into account, no single factor is required.”).11
Nevertheless, consideration of the additional factor described in
Butler does not help Delchamps’s case. In Butler, we suggested
that it could be relevant to consider whether the conduct
complained of explicitly or implicitly has the purpose or effect
of undermining the plaintiffs’ workplace competence so as to
create more disadvantageous terms or conditions for the
plaintiffs because of their sex than for members of the opposite
sex. See 161 F.3d at 270. Implicit in the behavior directed at
plaintiffs--including, but not limited to, the frequent comments
about oral sex, K. Plaisance’s daily statements that he wanted to
“come” on and “fuck” Terrebonne, and K. Plaisance’s frequent
grabbing his crotch and telling Terrebonne to “suck this”--is the
message that women are not welcome in the workplace because of
their sex, and that women are not valuable as workers but are
only good for gratifying men sexually. This undermines the
11
It is further evident that the Supreme Court did not
intend to require that every factor listed be present before a
work environment qualifies as hostile or abusive because its list
included both the severity and the pervasiveness of the
discriminatory conduct as relevant factors to consider when
evaluating whether an environment is hostile or abusive. See
Harris, 510 U.S. at 23 (“These [factors] may include the
frequency of the discriminatory conduct [i.e., its
pervasiveness]; [and] its severity . . . .”) (emphasis added).
Yet, as the Supreme Court has stated, for sexual harassment to be
actionable it need only be “‘sufficiently severe or pervasive.’”
Id. at 21 (quoting Meritor Sav. Bank, 477 U.S. at 67)) (emphasis
added); see Faragher, 118 S. Ct. at 2283.
19
workplace competence of women subjected to such behavior, and
creates less advantageous terms or conditions of employment for
them, “impairing their ability to compete on an equal basis with
men.” Id. at 270 (quoting DeAngelis, 51 F.3d at 593). As we
noted in Butler, the “critical issue” in determining whether an
actionably hostile or abusive work environment exists is whether
plaintiffs were subject to “‘disadvantageous terms or conditions
of employment to which member of the other sex [were] not
exposed.’” Id. at 271 (quoting Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 118 S. Ct. 998, 998 (1998)). It is
clear that here plaintiffs were subject to such terms or
conditions, and we therefore hold that the evidence is sufficient
to support the jury’s finding that an actionable hostile work
environment existed at Delchamps.
B. Employer Liability
Delchamps urges us to find that it is not liable for the
hostile environment that existed at its Cut Off, Louisiana store.
It argues that plaintiffs did not prove that the harassment
complained of was committed by a supervisor, and that therefore
it cannot be vicariously liable under the principles articulated
in the Supreme Court’s recent decisions in Faragher v. City of
Boca Raton, 118 S. Ct. 2275 (1998), and Burlington Industries,
Inc. v. Ellerth, 118 S. Ct. 2257 (1998). While conceding that
store manager Berthelot qualifies as a supervisor, Delchamps
contends that K. Plaisance, who it argues was not a supervisor,
and other non-supervisory personnel, perpetrated the vast
20
majority of the complained of harassment. Plaintiffs respond by
arguing that K. Plaisance qualifies as a supervisor or,
alternatively, that Berthelot was responsible for the hostile
work environment, mandating further inquiry under Faragher and
Burlington Industries.
We need not decide whether supervisors created the hostile
work environment at Delchamps, however, because we find that the
evidence was sufficient to support the conclusion that Delchamps
knew or should have known of the harassment experienced by
plaintiffs and failed to take prompt remedial action. As an
alternative to vicarious liability, an employer may be held
responsible for a hostile work environment “if it knew or should
have known of the harassment and failed to take prompt remedial
action.” Nash v. Electrospace Sys., Inc., 9 F.3d 401, 404 (5th
Cir. 1993) (citing Jones, 793 F.2d at 720); see Burlington
Indus., 118 S. Ct. at 2267 (“An employer is negligent with
respect to sexual harassment if it knew or should have known
about the conduct and failed to stop it. Negligence sets a
minimum standard for employer liability under Title VII.”).
A plaintiff may establish an employer’s knowledge by
demonstrating either actual or constructive notice to the
employer. See Sharp v. City of Houston, No. 97-20602, 1999 WL
10153, at *4 (5th Cir. Jan. 12, 1999); Williamson v. City of
Houston, 148 F.3d 462, 465 (5th Cir. 1998); Waltman v.
International Paper Co., 875 F.2d 468, 478 (5th Cir. 1989).
Actual notice can be proven by evidence that the plaintiff
21
complained to someone in management with the authority to take
remedial action, see Sharp, 1999 WL 10153, at *4-*5; Waltman, 875
F.2d at 478, whereas constructive notice is demonstrated by
showing that the harassment was sufficiently pervasive to give
“rise to the inference of knowledge or constructive knowledge” on
the part of someone with remedial authority, Waltman, 875 F.2d at
478 (internal quotation marks omitted); see Sharp, 1999 WL 10153,
at *5.
The evidence is sufficient to hold Delchamps liable under
both actual and constructive notice theories. B. Plaisance
testified that she complained to assistant manager Hebert in late
1994 or early 1995 about the chrome shots and the male employees
following around females, and that she reported to both Hebert
and store manager Berthelot in early 1995 that assistant manager
Kirchhoff had walked into the restroom while she was partially
undressed. None of these complaints resulted in a response. She
further testified that in May 1995 she informed Berthelot that
she did not want him to show her magazines with sexual content.
He replied that she had an “attitude problem” and should try to
“have fun with it.” All three plaintiffs met with Berthelot in
mid-June 1995 to discuss their grievances. At the meeting, they
brought to Berthelot’s attention that K. Plaisance had touched
Terrebonne’s bottom and they complained of K. Plaisance’s
vulgarity. Berthelot’s response was to pretend that he was
playing the violin in mock sympathy. He took no corrective
action. Plaintiffs testified that the offensive behavior
22
worsened after the meeting and that the atmosphere became more
hostile. Ultimately, plaintiffs met with area supervisor Smith
to air their grievances.12 Plaintiffs testified that the
atmosphere deteriorated further after these meetings.
Delchamps’s sexual harassment policy provides that
[i]f any associate feels he or she is the victim of unlawful
discrimination, the associate should feel free to discuss
the matter with his or her supervisor. If the circumstances
are such that the associate would prefer to discuss this
matter with someone else other tha[n] his or her immediate
supervisor, the associate may contact . . . anyone else he
or she may prefer within the Company. We will see that the
matter will be promptly investigated and handled
appropriately.
As we noted in Williamson, “[w]hen an organization designates a
particular person or persons to receive harassment complaints, it
sends a clear signal that those persons have the authority to
accept notice of harassment problems.” 148 F.3d at 466. Here,
the evidence demonstrates that plaintiffs reported the harassment
to their supervisors, as instructed by Delchamps’s sexual
harassment policy. This actual notice can be imputed to
Delchamps for purposes of liability. See id. at 467.
Moreover, Berthelot, as store manager, undeniably had
authority to take corrective action and knew or should have known
about the harassment taking place at the store. The evidence
indicates that Berthelot himself participated in much of the
harassing behavior complained of by plaintiffs, and that the
12
Smith did issue K. Plaisance a written reprimand as a
result of these meetings, but the reprimand referred only to off-
color jokes and innuendos and not to the incident in which K.
Plaisance inappropriately touched Terrebonne.
23
conduct was sufficiently severe and pervasive that he either was
aware or should have been aware of its existence. Thus,
Delchamps had constructive knowledge of the situation.
Additionally, despite the complaints, Delchamps “failed to
take steps to repudiate th[e] conduct and eliminate the hostile
environment.” Farpella-Crosby, 97 F.3d at 807; see Nash, 9 F.3d
at 404. The vast majority of plaintiffs’ complaints were
ignored, or, worse, mocked. We conclude that the evidence is
sufficient to support the jury’s verdict that Delchamps is liable
for the hostile environment that existed at its Cut Off,
Louisiana store.
C. Constructive Discharge
Delchamps argues that the evidence does not support the
jury’s finding that the plaintiffs were constructively discharged
from their employment with Delchamps, and that therefore we
should reverse the back and front pay awards plaintiffs received.
A claim for constructive discharge requires a plaintiff to prove
that the employer deliberately made the “employee’s working
conditions so intolerable that the employee [wa]s forced into an
involuntary resignation.” Dornhecker v. Malibu Grand Prix Corp.,
828 F.2d 307, 310 (5th Cir. 1987). This requires a showing that
“working conditions would have been so difficult or unpleasant
that a reasonable person in the employee’s shoes would have felt
compelled to resign.” Landgraf v. USI Film Prods., 968 F.2d 427,
429 (5th Cir. 1992) (internal quotation marks omitted), aff’d 511
U.S. 244 (1994); see Dornhecker, 928 F.2d at 310. To prove
24
constructive discharge in the sexual harassment context, “the
plaintiff must demonstrate a greater severity or pervasiveness of
harassment than the minimum required to prove a hostile working
environment.” Landgraf, 968 F.2d at 430.
Viewing the evidence in the light most favorable to the
jury’s verdict, as we must, we conclude that the harassment
described above is more than sufficient to support the jury’s
finding that plaintiffs were constructively discharged.
Plaintiffs experienced severe and degrading harassment at the
hands of their male co-workers. They made numerous complaints to
their supervisors over a period of several months, which were
ignored. They testified that after each complaint the offensive
behavior continued and the atmosphere of the store became more
hostile. Ultimately, after complaining to area supervisor Smith,
K. Plaisance received a written reprimand. Nevertheless,
plaintiffs testified that the offensive behavior continued
unabated, and that their male co-workers became even more hostile
and violent.13 Under these circumstances a reasonable person
would have felt compelled to resign.
The cases cited by Delchamps are distinguishable. See Webb,
139 F.3d at 539-40 (affirming grant of summary judgment to
employer on constructive discharge theory because employer took
prompt remedial action, including requiring harasser to end his
offensive conduct and offering to transfer employee away from
13
Terrebonne testified that Leger struck her with his meat
cart after the complaint to Smith.
25
harasser); McKethan v. Texas Farm Bureau, 996 F.2d 734, 740-41
(5th Cir. 1993) (upholding district court’s directed verdict on
age discrimination claim, finding no constructive discharge where
plaintiff endured two minutes of embarrassing remarks at awards
dinner, but voluntarily delayed his retirement for thirteen
months for tax purposes and later requested his job back); Ugalde
v. W.A. McKenzie Asphalt Co., 990 F.2d 239, 243 (5th Cir. 1993)
(affirming grant of summary judgment to employer, concluding
reasonable employee would not have felt compelled to resign where
plaintiff contended that supervisor subjected him to ethnic
slurs, but did not mention the slurs on the one occasion he
attempted to complain, after which he walked off the job);
Landgraf, 968 F.2d at 429-30 (concluding evidence supported
district court’s finding that plaintiff was not constructively
discharged where district court found that plaintiff’s reason for
resigning was not complained of sexual harassment, and evidence
supported district court’s conclusion that employer took
reasonable steps to end harassment); Dornhecker, 828 F.2d at 310
(holding that, because employer took prompt remedial action,
district court clearly erred in finding plaintiff was
constructively discharged, where plaintiff, who had been employed
with defendant for two days, was sexually harassed on business
trip, complained to her supervisor, but quit despite employer’s
promise that she would not have to work with harasser after
business trip ended two days later); Larry v. North Miss. Med.
Ctr., 940 F. Supp. 960, 966 (N.D. Miss. 1996) (dismissing
26
plaintiff’s constructive discharge claim where employer took
prompt remedial action and no further incidents occurred prior to
plaintiff’s resignation), aff’d in part sub nom. Larry v. Grice,
156 F.3d 181 (5th Cir. 1998) (unpublished table decision); Sims
v. Brown & Root Indus. Servs., Inc., 889 F. Supp. 920, 931 (W.D.
La. 1995) (granting summary judgment on constructive discharge
claim where plaintiff resigned only because she felt “awkward”
with two co-workers after employer terminated harasser), aff’d,
78 F.3d 581 (5th Cir. 1996) (unpublished table decision). We
find that there is ample evidence to support the jury’s
conclusion that a reasonable person in the shoes of plaintiffs
would have felt compelled to resign.
D. Intentional Infliction of Emotional Distress
Delchamps requests that we overturn the district court
judgment with respect to the awards for intentional infliction of
emotional distress, arguing that it is not vicariously liable for
the acts of its employees. In determining whether Delchamps may
be found vicariously liable under Louisiana law for the
intentional infliction of emotional distress committed by its
employees, courts consider whether the acts complained of were
committed on the employer’s premises, whether the acts were
committed during hours of employment, whether the acts were
primarily employment rooted, and whether the acts were reasonably
incidental to the performance of the employee’s duties. See
Baumeister v. Plunkett, 673 So.2d 994, 996-97 (La. 1996). While
the conduct underlying plaintiffs’ claims for intentional
27
infliction of emotional distress did occur on Delchamps’s
premises during working hours, satisfying the first two elements,
the acts complained of were not primarily employment rooted, nor
were they reasonably incidental to the performance of the duties
of Delchamps’s employees.
While the predominant motive of the employee need not be
employment related in order for the acts to be deemed primarily
employment rooted, the purpose of serving the employer must
actuate the employee at least to some extent. See id. at 999-
1000 (“If the purpose of serving the master’s business actuates
the servant to any appreciable extent, the master is subject to
liability if the act is otherwise within the service. . . . In
our case, serving the master’s business did not actuate the
servant at all, much less to any appreciable extent.”) (internal
quotation marks and citation omitted). The evidence put forth by
plaintiffs does not support the conclusion that the purpose of
serving Delchamps constituted any part of the motivation for
committing the acts forming the basis of their claims of
intentional infliction of emotional distress. Instead, these
acts were “entirely extraneous” to Delchamps’s interests. See
id. at 1000. Moreover, the acts complained of were not
reasonably incidental to the performance of employment duties
because the employees’ responsibilities did not include any
duties that would make such conduct reasonably foreseeable or
fairly attributable to Delchamps. See id. at 999; Samuels v.
Southern Baptist Hosp., 594 So.2d 571, 574 (La. Ct. App. 1992).
28
Viewing the evidence in the light most favorable to the jury’s
verdict, we cannot conclude that Delchamps is vicariously liable
for the intentional torts of its employees, and therefore reverse
the judgment as to plaintiffs’ intentional infliction of
emotional distress claims.14 Because we reach this result, we
need not consider Delchamps’s argument that the jury’s award of
both compensatory damages and damages for intentional infliction
of emotional distress constituted a double damage award.
E. Compensatory Damages
Delchamps argues that the jury’s compensatory damage awards
were excessive and that plaintiffs were entitled only to nominal
damages because they did not present sufficient proof of mental
anguish. Our review of this award is deferential to the
conclusions of the fact-finder. See Patterson v. P.H.P.
Healthcare Corp., 90 F.3d 927, 937-38 (5th Cir. 1996).
Plaintiffs were required to establish the harm they suffered,
either through corroborating testimony or medical or
14
Alternatively, we may uphold the district court judgment
on plaintiffs’ intentional infliction of emotional distress
claims if Delchamps itself committed the tort, which would
require a showing that Delchamps’s conduct was extreme and
outrageous, that the conduct caused plaintiffs to suffer severe
emotional distress, and that Delchamps desired to cause severe
emotional distress or knew that severe emotional distress would
be certain or substantially certain to result from its conduct.
See White v. Monsanto Co., 585 So.2d 1205, 1209 (La. 1991). We
conclude that Delchamps’s behavior in failing to remedy the
hostile environment created by its employees does not rise to the
level of extreme and outrageous conduct necessary to support the
judgment. See id. (“The conduct must be so outrageous in
character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious and utterly
intolerable in a civilized community.”).
29
psychological evidence. See id. at 940. After a careful review
of the record, we conclude that the jury’s compensatory damage
awards were well-supported by both plaintiffs’ testimony and by
corroborating testimony, and therefore we decline to overturn
those awards.
F. Punitive Damages
Punitive damages are appropriate where the complaining party
shows “‘that the respondent engaged in a discriminatory practice
. . . with malice or with reckless indifference to the federally
protected rights of an aggrieved individual.’” Patterson, 90
F.3d at 941 (quoting 42 U.S.C. § 1981a(b)(1)) (emphasis added).
In Patterson, we stated that an employer could be liable for the
malicious or reckless conduct of its employees if the employer
itself (i.e., someone sufficiently high in company hierarchy)
acted maliciously or recklessly, or if the employer knew or
should have known of the malicious or reckless conduct, but took
no action. See id. at 944 & n.15. However, in Deffenbaugh-
Williams v. Wal-Mart Stores, Inc., 156 F.3d 581, 593 (5th Cir.
1998), vacated and reh’g en banc granted, No. 97-10685, 1999 WL
107104 (5th Cir. Feb. 26, 1999), we reexamined this holding in
light of the Supreme Court’s pronouncements in Faragher and
Burlington Industries, and held that a supervisor’s malicious or
recklessly indifferent acts may be imputed to the employer for
purposes of awarding punitive damages through principles of
vicarious liability. Because the jury was instructed under the
standards set forth in Patterson and because our opinion in
30
Deffenbaugh-Williams has been vacated, we will apply the law as
it existed prior to Deffenbaugh-Williams.15
Under Patterson, an employer is not strictly liable for
punitive damages for the acts of its agents, but may be liable
for such damages under agency principles. See Patterson, 90 F.3d
at 942. The Patterson court found that a project manager’s
discriminatory acts could not be imputed to the employer for
purposes of punitive damages where the project manager was not
sufficiently high in the company, and where there was no evidence
that the company knew or should have known of his discriminatory
acts.16 See id. at 944 (finding that actions of supervisor
alone, “without some evidence showing that [the employer] knew or
15
Specifically, the jury charge reads:
If you find Defendant Delchamps intentionally discriminated
against Plaintiffs, the law allows you, but does not require
you, to award punitive damages.
. . . .
In this case, you may award punitive damages if you
find that Defendant Delchamps engaged in a discriminatory
practice or practices with malice or reckless indifference
to the rights of Plaintiffs to be free from such intentional
discrimination in employment.
The verdict form reads:
Do you find from a preponderance of the evidence that
Defendant’s corporate management personnel acted with actual
malice or gross negligence which evidences a willful, wanton
or reckless disregard regarding [the plaintiffs’] claims
that Delchamps subjected [them] to a hostile work
environment.
16
The employer had distributed a non-discrimination policy
to its employees detailing complaint procedures, but neither
plaintiff utilized the complaint procedures. See id.
31
should have known of [the supervisor’s] malicious or reckless
conduct, are insufficient to cause punitive liability to directly
attach to [employer]”).
We conclude that the punitive damage awards in this case
were appropriate under Patterson. Berthelot, the store manager,
and Smith, the area supervisor,17 are managerial employees such
that their malicious or recklessly indifferent behavior binds
Delchamps for purposes of punitive damages. See EEOC v. Wal-Mart
Stores Inc., 156 F.3d 989, 992 (9th Cir. 1998) (assistant
manager’s discriminatory behavior binds employer for purposes of
punitive damages); Cline v. Wal-Mart Stores, Inc., 144 F.3d 294,
306 (4th Cir. 1998) (store manager’s discriminatory behavior
binds employer for purposes of punitive damages); EEOC v. Wal-
Mart Stores, Inc., 11 F.Supp.2d 1313, 1322 (D.N.M. 1998)
(assistant manager’s and training coordinator’s discriminatory
behavior binds employer for purposes of punitive damages); Deters
v. Equifax Credit Info. Servs., Inc., 981 F. Supp. 1381, 1384-85
(D. Kan. 1997) (behavior of general manager of local office binds
employer for purposes of punitive damages); Preston v. Income
Producing Management, Inc., 871 F. Supp. 411, 415 (D. Kan. 1994)
(co-manager’s behavior binds employer for purposes of punitive
damages).
Viewing the evidence in the light most favorable to the
jury’s verdict, we conclude that there was sufficient evidence
from which the jury could conclude that Berthelot and/or Smith
17
Smith had authority over sixteen stores.
32
acted with malice or reckless disregard for the rights of
plaintiffs to be free from sexual harassment. Berthelot
personally contributed to the revolting atmosphere of sexual
harassment described above, ignored every complaint brought to
his attention, responded by pretending to play the violin in a
gesture of mock sympathy or by rolling his eyes, and, when
informed by B. Plaisance that she did not like him showing her
magazines with sexual content, responded that she had an
“attitude problem” and that she should just laugh and “have fun
with it.” Meanwhile, the harassing behavior continued and the
hostile atmosphere worsened.
Smith’s behavior also evinced malice or reckless
indifference to the rights of plaintiffs to be free of sexual
harassment. When plaintiffs brought their complaints to his
attention, he appeared to accept the word of store manager
Berthelot at face value after Berthelot denied one of B.
Plaisance’s complaints, issued a written reprimand that did not
address the plaintiffs’ principal complaint (K. Plaisance’s
inappropriate touching of Terrebonne),18 looked at Terrebonne as
18
The reprimand referred to off-color jokes and innuendos,
despite the fact that Smith testified that none of the plaintiffs
had complained to him about K. Plaisance’s vulgarity and had only
complained about K. Plaisance’s inappropriate touching of
Terrebonne. The jury was free to be skeptical of Smith’s
testimony that he decided to issue K. Plaisance a reprimand for
behavior that Smith claimed nobody had complained about, but not
to issue a reprimand for behavior that Smith testified plaintiffs
brought to his attention. The jury was free to disbelieve his
testimony that none of the plaintiffs had informed him about K.
Plaisance’s vulgarity. Moreover, the jury was free to conclude
that Smith did not adequately handle plaintiffs’ complaints
because of malice or reckless indifference.
33
if he did not believe her story after a subsequent complaint, and
took no follow-up action after the written reprimand to ensure
that the offensive conduct would not continue.19 As a result,
the harassing behavior did continue, and the hostility at the
store worsened to the point that plaintiffs were compelled to
resign.20
Thus, there was sufficient evidence from which the jury
could conclude that Delchamps engaged in a discriminatory
practice with malice or reckless indifference to plaintiffs’
rights to be free from discrimination. We therefore decline to
overturn the punitive damage awards.
G. Improper Jury Instruction
19
In fact, Smith testified that, despite the language of
the written reprimand that he issued K. Plaisance, which read
“[a]ny further action of this [sort] will result in termination,”
he took no corrective action in response to Griffin’s later
complaint, which K. Plaisance denied, that K. Plaisance had asked
her whether she performed oral sex on her husband. The jury was
free to conclude from this testimony that Smith’s behavior
indicated malice or reckless indifference to the rights of
plaintiffs to be free from sexual harassment.
20
Smith further testified at trial that Terrebonne had
told him that she considered K. Plaisance’s touch to be merely a
friendly pat, that Terrebonne signed a statement to that effect
at the time of Smith’s investigation, and that Smith had been
unable to verify plaintiffs’ other complaints. Yet, Smith could
not produce the statement that Terrebonne allegedly had signed,
nor the notes he claimed to have taken during the meetings, and
Terrebonne denied his version of events. Thus, the jury was free
to disbelieve Smith’s testimony, and to infer that he concocted
the story to cover up his poor response, demonstrating malice or
reckless indifference. See EEOC v. Wal-Mart Stores Inc., 156
F.3d 989, 993 (9th Cir. 1998) (concluding jury should have been
allowed to decide appropriateness of punitive damages where
evidence demonstrated that assistant manager attempted to cover
up discriminatory conduct by, inter alia, fabricating an
interview that never transpired).
34
Delchamps contends that the district court improperly
instructed the jury on corporate liability. It argues that the
jury charge could have led the jury to believe that Delchamps was
strictly liable for its employees’ conduct.21 For a challenge to
a jury charge to succeed, the party challenging the charge must
demonstrate that “the charge as a whole creates substantial and
ineradicable doubt whether the jury has been properly guided in
its deliberations.” Federal Deposit Ins. Corp. v. Mijalis, 15
F.3d 1314, 1318 (5th Cir. 1994) (internal quotation marks
omitted). Delchamps has not met this standard because the jury
charge, read as a whole, properly instructed the jury that
demonstrating Delchamps’s liability for its employees’ acts of
sexual harassment requires proof “that the employer knew or
should have known of the harassment and failed to take prompt
remedial action.”22 We conclude that there is no doubt that the
jury was properly guided in its deliberations.
H. Admission of Deposition Testimony
Finally, after consideration of the arguments set forth in
the parties’ briefs, we conclude that the district court properly
21
The challenged jury charge reads:
A corporation under the law is a person, but can only act
through its employees, agents, directors or officers. The
law, therefore, holds a corporation responsible for the acts
of its employees, agents, directors, and officers.
22
The jury instruction also properly instructed the jury
on the requirements for employer liability for its employees’
acts of intentional infliction of emotional distress. However,
this instruction is irrelevant in light of our resolution of
plaintiffs’ claims for intentional infliction of emotional
distress.
35
admitted the deposition testimony of Amy Landry. We agree with
the district court that plaintiffs sufficiently demonstrated the
unavailability of the witness and that the witness’s testimony
was relevant.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM in part and REVERSE in
part the judgment of the district court, and remand for entry of
an amended judgment that vacates the awards for intentional
infliction of emotional distress. Delchamps shall bear the costs
of this appeal.
36