Rutherford v. Harris County Texas

REVISED - DECEMBER 20, 1999

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

______________

No. 98-20623
______________

GWYNNETH RUTHERFORD,

Plaintiff-Appellee,

versus

HARRIS COUNTY, TEXAS,

Defendant-Appellant.

_________________________________________________________

Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________

November 29, 1999

Before EMILIO M. GARZA and PARKER, Circuit Judges, and FITZWATER,
District Judge.*

FITZWATER, District Judge:

A county deputy constable who contended she had been passed

over for promotion and subjected to adverse employment actions

based on her sex sued her employer for discriminating against her

in violation of Title VII of the Civil Rights Act of 1964 (“Title

VII”), 42 U.S.C. § 2000e et seq. A jury found in her favor and the

district court awarded damages, front pay, back pay, prejudgment

interest, attorney’s fees, and injunctive relief. The employer’s

*
District Judge of the Northern District of Texas, sitting by
designation.
appeal presents questions concerning the sufficiency of the

evidence and the propriety of various evidentiary rulings, the jury

charge, and the relief the district court awarded. We affirm in

part, reverse and remand in part, and vacate and remand in part.

I

Plaintiff-appellee Gwynneth Rutherford (“Rutherford”), whom

defendant-appellant Harris County, Texas (“Harris County”) employed

as a STEP1 deputy constable, sued Harris County alleging that it

was liable on various grounds under Title VII for discriminating

against her based on her sex and retaliating against her. On

motion for summary judgment, the district court dismissed her

claims for discriminatory discharge, retaliation, and sexual

harassment. The court denied the motion as to her causes of action

for failure to promote her to a full-time deputy constable

position2 and for disparate treatment in various terms, conditions,

and privileges of employment. The parties tried these claims to a

jury, which returned a verdict in Rutherford’s favor. Concerning

her failure to promote claim, the jury awarded her $1.00 for

1
A STEP (Selective Traffic Law Enforcement) deputy constable
was a non-permanent (i.e., not a civil service), paid position.
Rutherford originally obtained a position as an unpaid reserve
deputy constable. Harris County hired her as a STEP deputy
constable approximately three months later. STEP deputy constables
enforced safety belt and speeding laws.
2
This claim is labeled in the jury charge as a failure to
“select [Rutherford] for a full time deputy position,” and in the
briefing as a failure to hire/promote cause of action. See, e.g.,
Appellant Br. at 3; Appellee Br. at 2. For clarity, we refer to it
as Rutherford’s failure to promote claim.

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emotional pain, suffering, inconvenience, mental anguish, and loss

of enjoyment of life; $100,000 for lost wages in the future; and

$25,000 for lost benefits in the future. It awarded her $50,000

for emotional pain, suffering, inconvenience, mental anguish, and

loss of enjoyment of life for her disparate treatment claim. The

parties stipulated that the district judge would decide the

question of back pay. The district court entered a final judgment

on May 13, 1998 awarding Rutherford damages of $175,001.00,

attorney’s fees of $148,775.00, injunctive relief, post-judgment

interest, and court costs. In calculating attorney’s fees, the

district court enhanced the lodestar by a 1.5 multiplier because

Rutherford’s attorneys had agreed to represent her on a contingent

fee basis.

After the district court entered judgment, Harris County

renewed its motion for judgment as a matter of law or for new

trial. The district court denied the motion. Two days later,

Rutherford filed a motion for Fed. R. Civ. P. 60 relief in which

she asked the court to enlarge the scope of the injunctive relief

awarded and grant her back pay and prejudgment interest.

Rutherford cited both Rule 60(b) and 60(a), but the gravamen of her

motion was that the district court had made a clerical error in

entering a final judgment that omitted this relief. Later the same

day, Harris County filed a notice of appeal from the final

judgment, the court’s findings of fact and conclusions of law, its

order denying Harris County’s motion for judgment as a matter of

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law or for new trial, and the attorney’s fee award.3

On August 17, 1998 the district court entered an order

granting in part Rutherford’s motion for relief from judgment. The

court amended its findings of fact and conclusions of law to

reflect a back pay award of $74,900, and found that Rutherford was

entitled to recover prejudgment interest on the back pay. It also

entered a final judgment that preserved the relief granted in the

original judgment and added recoveries for back pay and prejudgment

interest. Harris County filed an amended notice of appeal.

II

Harris County contends the district court erred in overruling

its motion for judgment as a matter of law and abused its

discretion in denying its motion for new trial.

A

We review de novo the denial of Harris County’s motion for

judgment as a matter of law, Deffenbaugh-Williams v. Wal-Mart

Stores, Inc., 188 F.3d 278, 285 (5th Cir. 1999), applying the same

standard that the district court used. Aetna Cas. & Sur. Co. v.

Pendleton Detectives of Miss., Inc., 182 F.3d 376, 377 (5th Cir.

1999). “A court may grant a judgment as a matter of law if after

a party has been fully heard by the jury on an issue, ‘there is no

legally sufficient evidentiary basis for a reasonable jury to have

3
Rutherford cross-appealed from the judgment. She withdrew
the cross-appeal, and the clerk of this court dismissed it, after
the district court entered its August 17, 1998 judgment.

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found for that party with respect to that issue.’” Id. at 377-78

(quoting Rule 50). “A court should view the entire record in the

light most favorable to the non-movant, drawing all factual

inferences in favor of the non-moving party, and ‘leaving

credibility determinations, the weighing of the evidence, and the

drawing of legitimate inferences from the facts to the jury.’” Id.

at 378 (quoting Conkling v. Turner, 18 F.3d 1285, 1300 (5th Cir.

1994)). “In ruling on a Rule 50 motion based upon sufficiency of

the evidence, we ‘consider all of the evidence——not just that

evidence which supports the non-mover’s case——but in the light and

with all reasonable inferences most favorable to the party opposed

to the motion.’” Information Communication Corp. v. Unisys Corp.,

181 F.3d 629, 633 (5th Cir. 1999) (quoting Boeing Co. v. Shipman,

411 F.2d 365, 374 (5th Cir. 1969) (en banc)). “The motion [is]

properly granted ‘[i]f the facts and inferences point so strongly

and overwhelmingly in favor of one party that the Court believes

that reasonable men could not arrive at a contrary verdict.’” Id.

(quoting Boeing, 411 F.2d at 374). “On the other hand, if there is

substantial evidence opposed to the motions, that is, evidence of

such quality and weight that reasonable and fair-minded men in the

exercise of impartial judgment might reach different conclusions,

the motions should be denied, and the case submitted to the jury.

A mere scintilla of evidence is insufficient to present a question

for the jury. The motions for [JMOL] should not be decided by

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which side has the better of the case, nor should they be granted

only when there is a complete absence of probative facts to support

a jury verdict. There must be a conflict in substantial evidence

to create a jury question.” Deffenbaugh-Williams, 188 F.3d at 285

(emphasis deleted) (quoting Boeing, 411 F.2d at 374-75).

We will affirm the denial of a motion for new trial “unless,

on appeal, the party that was the movant in district court makes a

clear showing of an absolute absence of evidence to support the

jury’s verdict, thus indicating that the trial court had abused its

discretion in refusing to find the jury’s verdict contrary to the

great weight of the evidence.” Whitehead v. Food Max of Miss.,

Inc., 163 F.3d 265, 269 (5th Cir. 1998) (emphasis deleted and

internal quotation marks omitted) (quoting Hidden Oaks Ltd. v. City

of Austin, 138 F.3d 1036, 1049 (5th Cir. 1998); Dawsey v. Olin

Corp., 782 F.2d 1254, 1261 (5th Cir. 1986)). “[R]eview of the

denial of a new trial motion is more limited than when one is

granted.” Id.

B

We must first decide whether Harris County is entitled to

judgment as a matter of law dismissing, or to a new trial of,

Rutherford’s failure to promote claim.

1

Title VII makes it unlawful inter alia for an employer to fail

or refuse to hire an individual because of her sex. Krystek v.

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University of S. Miss., 164 F.3d 251, 255-56 (5th Cir. 1999) (sex

discrimination claim based on denial of tenure) (citing 42 U.S.C.

§ 2000e-2(a)(1)). It is familiar jurisprudence that to prevail on

her failure to promote claim, Rutherford was first obligated to

establish a prima facie case. This required that she demonstrate

that (1) she was not promoted, (2) she was qualified for the

position she sought, (3) she was within the protected class at the

time of the failure to promote, and (4) either the position she

sought was filled by someone outside the protected class or she was

otherwise not promoted because of her sex. See Bennett v. Total

Minatome Corp., 138 F.3d 1053, 1060 (5th Cir. 1998) (addressing age

discrimination formulation).4 Once she met this burden, her prima

facie case raised an inference of unlawful discrimination. Id.

The burden of production then shifted to Harris County to proffer

a legitimate, nondiscriminatory reason for not promoting her. Id.

When Harris County met its production burden, Rutherford became

obligated to demonstrate that Harris County’s articulated rationale

was merely a pretext for discrimination. See id. “Under the

McDonnell Douglas-Burdine framework, the parties dance an

adversarial three-step, in which: (1) the plaintiff proves [her]

4
Of course, a plaintiff can rely on direct evidence, but it
“is rare in discrimination cases, [and] a plaintiff must ordinarily
use circumstantial evidence to satisfy her burden of persuasion.”
Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir. 1996) (en
banc). Rutherford does not contend that she adduced direct
evidence.

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prima facie case by a preponderance of the evidence; (2) the

defendant rebuts the presumption of intentional discrimination

arising from the prima facie case by articulating legitimate,

non-discriminatory reasons for the challenged action; and (3) the

plaintiff counters by offering evidence that the legitimate,

non-discriminatory reasons are really a pretext for

discrimination.” Casarez v. Burlington Northern/Santa Fe Co., ___

F.3d ___, ___ 1999 WL 828604, at *3 (5th Cir. 1999) (footnote and

citations omitted).

2

Harris County maintains that Rutherford did not carry her

initial burden of establishing a prima facie case. It argues that

Rutherford’s unsatisfactory job performance in the temporary

position of STEP deputy——failing to appear to testify in court on

September 12, 1995, resulting in the dismissal of eight cases;

making numerous errors in accident reports; and becoming

belligerent when her supervisor, Corporal Michael V. Hartley

(“Corporal Hartley”),5 constructively criticized her reports——shows

that she was not qualified for the position of full-time deputy.

Harris County also contends the evidence did not permit a

reasonable jury to find that it promoted Remon Green (“Green”)

5
Corporal Hartley received a promotion to the rank of sergeant
during the latter part of Rutherford’s tenure at Precinct 7.
During the trial, counsel and witnesses at times referred to him as
Sergeant Hartley. Because, at the time of trial, he once again
held the rank of corporal, we will refer to him as Corporal
Hartley.

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rather than Rutherford to the full-time deputy position because of

her sex. Harris County points to evidence that Terrie Davis

(“Deputy Davis”), a female, held a full-time position in the

Precinct 7 Traffic Safety Division (the division to which

Rutherford was assigned), and that Arletha Wilson (“Deputy Wilson”)

was selected over a male for a full-time position in that division.

It argues that Rutherford did not show that females as a group were

excluded from full-time positions.6

3

“[W]hen, as here, a case has been fully tried on its merits,

we do not focus on the McDonnell Douglas burden-shifting scheme.

Instead, we inquire whether the record contains sufficient evidence

to support the jury’s ultimate findings.” Smith v. Berry Co., 165

F.3d 390, 394 (5th Cir. 1999) (citations omitted). “[W]e need not

parse the evidence into discrete segments corresponding to a prima

6
Harris County also appears to assert that Rutherford relied
impermissibly on her subjective belief that Harris County did not
promote her due to her sex. We recognize that such evidence is
alone insufficient to create a jury question, see Baltazor v.
Holmes, 162 F.3d 368, 377 n.11 (5th Cir. 1998), but Harris County
does not cite us to any place in the record that reflects that
Rutherford relied solely on her subjective belief to prove this
claim.
Harris County also maintains that the fact that the jury
initially informed the district court that it could not reach a
verdict reflects “[t]he weakness of the evidence to support an
affirmative finding of gender discrimination[.]” Appellant Br. at
14. We disagree. The jury note could reflect nothing more than
the fact that two jurors (the note refers to “disagreeing
person/s”) initially assessed the evidence differently than did the
majority. Later the same day, the jury returned a unanimous
verdict in Rutherford’s favor.

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facie case, an articulation of a legitimate, nondiscriminatory

reason for the employer’s decision, and a showing of pretext.

‘When a case has been fully tried on the merits, the adequacy of a

party’s showing at any particular stage of the McDonnell Douglas

ritual is unimportant.’” Travis v. Board of Regents of Univ. of

Tex. Sys., 122 F.3d 259, 263 (5th Cir. 1997) (quoting Molnar v.

Ebasco Constructors, Inc., 986 F.2d 115, 118 (5th Cir. 1993)),

cert. denied, ___ U.S. ___, 118 S.Ct. 1166 (1998). We will

therefore treat Harris County’s assertions that Rutherford was not

qualified for the full-time deputy position as its legitimate,

nondiscriminatory reasons for not promoting her. We will decide

whether a reasonable jury could have found that these reasons were

pretexts for intentional sex discrimination, not whether Rutherford

established a prima facie case.7

For Rutherford to prevail in this employment discrimination

case, the record as a whole must contain evidence that creates a

fact issue as to whether each of Harris County’s stated reasons was

what actually motivated it and must create a reasonable inference

that Rutherford’s sex was a determinative factor in Harris County’s

decision not to promote her. See Krystek, 164 F.3d at 256. “A

7
Rutherford has treated the argument similarly. See Appellee
Br. at 7 (arguing inter alia that she adduced evidence from which
the district court and jury could reasonably have found that Harris
County’s stated reason for not promoting her was merely a pretext
to hide its true discriminatory intent) and 9 (contending that
Harris County orchestrated the events in order to question
Rutherford’s qualifications and place her in a false light).

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Title VII plaintiff bears the burden of proving not only that the

employer’s purported reasons for taking an adverse employment

action are pretextual, but also that the employer engaged in

illegal discrimination.” Travis, 122 F.3d at 263. We review the

record to determine whether there is substantial evidence that

Harris County decided not to promote Rutherford because she is

female and that its stated reasons for not doing so are pretextual.

See Krystek, 164 F.3d at 257.

Rutherford introduced sufficient evidence to permit a

reasonable jury to find that Harris County promoted Green rather

than Rutherford because of her sex. Viewed favorably to the

verdict, the evidence demonstrated that when the position of

sergeant became vacant, this created a series of successive

openings in lower ranks because each person moved up to fill the

next higher slot. The ripple effect created a vacancy for a full-

time deputy position. The Precinct Captain testified at trial that

seniority strongly influenced how vacancies were filled. Although

Rutherford was next in seniority for the full-time deputy opening,

Harris County did not interview her. Rutherford knew through

rumors that the position would become available, but did not learn

until after the fact that Green had filled it.

Green was junior in seniority to Rutherford and Tesma Walker

(“Deputy Walker”), both females. At the time he was promoted, he

was a civilian employee working as a radio dispatcher. He had

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significantly less training and field experience in traffic safety

than did Rutherford. Rutherford had worked strictly on traffic

safety as a reserve deputy. Green did not train in traffic safety.

As a radio dispatcher, Green learned radio codes, but this

knowledge did not take long to acquire and provided no benefit in

working the streets as a traffic safety deputy. Rutherford had

become familiar with the streets and addresses in her patrol area.

She had also received training in the Intoxilyzer, radar

certification, ticketing, accident reconstruction, and field

sobriety. She had taught Green how to write tickets. Green had

some experience as a reserve deputy in making traffic stops and

also had experience patrolling county parks, but so did Rutherford.

Most of the classes that Green had taken before becoming a full-

time deputy were related to communications, not traffic safety. He

had not taken courses in the Intoxilyzer, field sobriety,

pedestrian and bicycle accident reconstruction, or radar.

Although Green had been interviewed by the Traffic Safety

Division when he began as a reserve deputy eight months earlier, he

did not interview for the full-time deputy position. Sergeant

Nathan Wells (“Sgt. Wells”) called Green into his office and told

him that he would recommend him for the job. Chief Deputy Michael

C. Tippitt (“Chief Tippitt”) concurred the next day and informed

Green that he would get the promotion.8

8
Harris County argues that the record lacks substantial proof
of sex discrimination in the decision to promote Green because the

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 Harris County argued at trial that it promoted Green rather

than Rutherford because he was better qualified.9 It posited that

evidence shows that Deputy Davis held a full-time position and that
Deputy Wilson was selected over a male candidate. It maintains
that Rutherford failed to show that females as a group were
excluded from full-time positions in the Traffic Safety Division.
We acknowledge that the jury could have concluded on this basis
that Harris County did not discriminate against Rutherford, but
there was also evidence from which it could reasonably have found
that Harris County denied her the promotion based on her sex. For
example, there was testimony that Deputy Wilson later became Sgt.
Wells’ girlfriend and that they eventually married, which could
explain why she progressed through the ranks despite her sex.
Where, as here, reasonable persons could differ in their
interpretation of the evidence, and the facts and reasonable
inferences would permit reasonable jurors to find in Rutherford’s
favor, we will not disturb the district court’s denial of judgment
as a matter of law. See Baltazor, 162 F.3d at 373.
9
Although it did not advance this precise contention in its
brief, Harris County asserted at oral argument that Rutherford was
contending that she was clearly better qualified than was Green for
the full-time deputy position. Its counsel quoted the following
from our opinion in Scott v. University of Miss., 148 F.3d 493, 508
(5th Cir. 1998): “[u]nless disparities in curricula vitae are so
apparent as virtually to jump off the page and slap us in the face,
we judges should be reluctant to substitute our views for those of
the individuals charged with the evaluation duty by virtue of their
own years of experience and expertise[.]” Harris County urged that
Rutherford’s evidence could not pass the jump-off-the-page/face-
slap test. We disagree.
This passage from Scott originated in Odom v. Frank, 3 F.3d
839, 847 (5th Cir. 1993), in which Judge Wiener explained in rather
colorful terms the rationale for the rule that, generally, a
court’s belief that a less qualified person outside the protected
class has been promoted over a person within the class will not of
itself support a finding of pretext. Id. at 845. Rutherford did
not attempt to prove pretext solely on the basis of her comparative
qualifications. She introduced evidence that she was next in line
for the position of full-time deputy and that seniority strongly
influenced how vacancies were customarily filled. Moreover, the
jury could reasonably have found that Harris County did not
actually compare Rutherford’s qualifications to Green’s before
deciding to promote him. There was evidence, for example, that
supervisory personnel made the decision without interviewing either

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Rutherford’s spotty job performance as a temporary deputy included

her failing to appear in court on September 12, 1995, resulting in

the dismissal of eight cases; making numerous, severe errors in

accident reports; and becoming belligerent when Corporal Hartley,

her supervisor, constructively criticized her concerning the

reports.10 We conclude that the jury could reasonably have found

these reasons to be pretexts for intentional sex discrimination.

Viewed favorably to Rutherford, the evidence established that

on the date she failed to appear in court, she was required to

attend a mandatory drug detection training class conducted by the

Drug Enforcement Administration at a park located 20 minutes away

from Precinct headquarters. When she was subpoenaed to appear in

court and paged to testify, she followed the usual procedure, which

specified that her supervisor communicate with the court concerning

her scheduling conflict. Rutherford testified that when she was

paged, she contacted her supervisor, Sgt. Wells, and that it was

his fault that the miscommunication with the court resulted in

dismissal of the cases. The jury could reasonably have found that

of them. The jury could not have impermissibly substituted its
opinion for the views of those who had experience and expertise in
the relevant field if the individuals who made the hiring decision
did not compare the candidates’ qualifications before promoting one
over the other.
10
Although Harris County cites evidence that Rutherford became
belligerent when Corporal Hartley criticized her accident reports,
see Appellant Br. at 7, 13, it has pointed to no place in the
record that shows that Harris County actually considered this
reason in deciding not to promote her or that it acted on this
basis. We do not address this proffered reason further.

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Harris County’s asserted reliance on this ground for deeming

Rutherford to be unqualified for the promotion was a pretext for

intentional sex discrimination.

Concerning Harris County’s contention that there were

numerous, severe errors in accident reports that Rutherford had

prepared, she adduced evidence that Corporal Hartley’s criticisms

were based on his personal preferences and were otherwise suspect.

In January 1995 Sgt. Wells conducted a performance review of

Rutherford in which he rated her “quality of

paperwork/documentation” as 9 on a scale of 10. According to the

grading scale, this meant that her work was “consistently neat,

orderly and well done” and “[s]eldom requires checking/correction.”

Sgt. Wells also gave her high marks in several other categories.

In approximately May 1995, however, Sgt. Wells asked Rutherford out

on a date, called her off the highway and into his office for no

apparent reason, paged her frequently when she left the office, and

after one or two weeks, asked her if she would consider having

sexual relations with him. Rutherford rejected Sgt. Wells’

request. Corporal Hartley (who reported to Sgt. Wells) began in

September 1995 marking as mistakes in her accident reports items

that he had not designated as errors in June 1995. On several

reports Corporal Hartley wrote and encircled the number of mistakes

at the top of the page. Corporal Hartley based his criticisms on

his personal experience, not on a state manual or Precinct policy.

Some of the mistakes not previously marked involved not putting a

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space between a comma and the next word in the sentence, not

properly aligning an “X” mark in a box, and other arguably minor

typographical errors. When asked at trial to explain what occurred

between June and September 1995 to cause him to begin marking

certain errors, he testified that he could not recall exactly. The

jury could reasonably have inferred, given the stark contrast

between the manner of grading Rutherford’s accident reports in June

and September 1995, that if Corporal Hartley’s increased criticisms

were genuine, he could have remembered why, in so short a time

span, he had intensified the level of scrutiny.

Harris County emphasized at oral argument, and we have found

in our review of the record, evidence that would have supported a

verdict in Harris County’s favor. The question we must decide,

however, is not whether the jury could have returned a verdict for

Harris County. The issue instead is whether the trial evidence

permitted a reasonable jury to find that Harris County promoted

Green rather than Rutherford due to her sex. Because we conclude

that it did, we hold that the district court did not err in denying

Harris County’s motion for judgment as a matter of law or abuse its

discretion in denying its motion for new trial with respect to

Rutherford’s failure to promote claim.

C

We next consider whether the jury could reasonably have found

that Harris County subjected Rutherford to disparate treatment

based on her sex.

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 1

“Title VII makes it ‘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 . . . sex.’" Shepherd v. Comptroller

of Pub. Accounts of State of Tex., 168 F.3d 871, 873 (5th Cir.)

(quoting 42 U.S.C. § 2000e-2(a)(1)), cert. denied, ___ U.S. ___,

___ S.Ct. ___ (1999). To prove her disparate treatment claim,

Rutherford was required to establish a prima facie case of

discrimination. This obligated her to demonstrate that (1) she is

a member of a protected class, (2) she was qualified for her

position, (3) she suffered an adverse employment action, and (4)

others similarly situated were more favorably treated. Urbano v.

Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir.) (pregnancy

discrimination case), cert. denied, ___ U.S. ___, 119 S.Ct. 509

(1998).11 The burden then shifted to Harris County to articulate

a legitimate, nondiscriminatory reason for the employment action.

Id. Once it did, Rutherford was required to prove that Harris

County intentionally discriminated against her because of her sex.

Id.

2

Harris County maintains the evidence did not permit a

11
Had this been the rare case in which direct evidence of
discrimination was available, Rutherford had the option of relying
instead on such proof.

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reasonable jury to find that it had discriminated against

Rutherford based on sex. Rutherford “must provide some evidence,

direct or circumstantial, to rebut each of the employer’s proffered

reasons and allow the jury to infer that the employer’s explanation

was a pretext for discrimination.” Scott v. University of Miss.,

148 F.3d 493, 504 (5th Cir. 1998). “The trier of fact may not

simply choose to disbelieve the employer’s explanation in the

absence of any evidence showing why it should do so.” Id. We

agree that as to at least the following alleged discriminatory

acts, the jury could not reasonably have found in Rutherford’s

favor.

Rutherford testified that male deputy constables in the

Traffic Safety Division, including Michael Warren, were permitted

to take their cars home at night and keep them at all times. She

complains that she and Deputy Walker, both females, were not

allowed to do so. Harris County introduced evidence, however, that

it was Precinct policy that supervisors and full-time traffic

safety deputies had take-home vehicles. All STEP deputies who met

the criteria to be call-out deputies were allowed to take vehicles

home. Deputy Davis, a female deputy who was qualified as an on-

call or call-out deputy, was allowed a take-home car. Rutherford

did not qualify either as a full-time or as a call-out deputy at

the time.

Rutherford testified that there was a restroom in the squad

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room area that was not specifically designated for use by males or

females. Down the hall, there were restrooms separately designated

for use by men or women. Once, when she used the restroom in the

squad room area, someone told her it was “for the guys.” Because

she never observed women use it, she assumed they were not

permitted to do so. Deputy Walker, a female, testified without

contradiction, however, that she used the squad room area restroom

and was never prohibited from doing so.

Rutherford testified that Corporal Hartley required her, but

not men, to respond to him by saying “Yes, Sir” or “No, Sir.”

Deputy Walker testified, however, that Precinct policy dictated

that deputies refer to each other on the street by their respective

titles——deputy, corporal, or sergeant——but that in the office they

addressed each other by name. She never heard Corporal Hartley

require anyone to say “Yes, Sir” or “No, Sir” to him in the office.

She called him by his first name in that setting.

Rutherford testified that Corporal C. Robert Francis

(“Corporal Francis”), a male, returned her patrol car to her

covered in mud and out of gas. She did not introduce evidence that

this isolated, neutral incident was in any way based on her sex,

and Harris County adduced uncontradicted proof that Sgt. Wells

orally reprimanded Corporal Francis for his conduct.

Rutherford testified that she was forced to wear a male-style

bullet proof vest because there were no female-style vests. Harris

County introduced uncontested evidence, however, that a private

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organization supplied the Precinct with vests of just one style.

Harris County made available to male and female deputies alike the

vests donated to it.

Viewing the evidence favorably to Rutherford, we hold that a

reasonable jury could not have found on any of these grounds that

Harris County intentionally subjected her to disparate treatment

based on her sex.12

3

We must now decide whether Harris County is entitled to a new

trial of Rutherford’s disparate treatment claim. We hold that it

is.13

The district court asked the jury in Interrogatory No. 3

whether it found “that Harris County intentionally discriminated

against Gwynneth Rutherford on the basis of her gender by treating

her less favorably than male employees in nearly identical

circumstances with respect to her terms, conditions or privileges

12
In her brief, Rutherford asserts in conclusory fashion other
acts of disparate treatment in addition to these grounds. See
Appellee Br. at 15-16. She relied on some of them in closing
argument. In view of our conclusion that she did not introduce
sufficient evidence to support some of the reasons on which her
disparate treatment claim is based, we need not address any other
grounds. We are unable to reverse and render judgment in favor of
Harris County on this claim, however, because the evidence was at
least sufficient to permit a reasonable jury to find that, based on
Rutherford’s sex, Corporal Hartley subjected her to disparate
treatment in the form of unfounded criticism of her accident
reports.
13
Rutherford’s failure to promote claim is unaffected because
the jury made liability, damages, and front pay findings that
pertained solely to that claim.

- 20 -
of employment[.]” The court did not instruct the jury to address

each individual basis for Rutherford’s disparate treatment claim.

In this respect, Interrogatory No. 3 was akin to a general verdict.

“[W]hen a case is submitted to the jury on a general verdict,

the failure of evidence or a legal mistake under one theory of the

case generally requires reversal for a new trial because the

reviewing court cannot determine whether the jury based its verdict

on a sound or unsound theory.” Olney Sav. & Loan Ass’n v. Trinity

Banc Sav. Ass’n, 885 F.2d 266, 271 (5th Cir. 1989) (quoting Pan

Eastern Exploration Co. v. Hufo Oils, 855 F.2d 1106, 1123 (5th Cir.

1988)). “The result is different, however, when the reviewing

court can be ‘reasonably certain that the jury did not base its

verdict on an unsound theory.’” Id. (quoting Braun v. Flynt, 731

F.2d 1205, 1206 (5th Cir. 1984)). “[I]f any one of the district

court’s list of claims were not supported by evidence or in some

other way unsound, we would be bound to remand this cause for a new

trial, absent evidence that the jury did not base its verdict on

that unsound claim.” Id.

We cannot be reasonably certain the jury did not base its

verdict on an unsound theory because the district court asked the

jury generally whether Harris County had intentionally

discriminated against Rutherford based on her sex by treating her

less favorably than male employees with respect to unspecified

“terms, conditions or privileges of employment.” We therefore

- 21 -
reverse the part of the judgment that awards Rutherford $50,000 for

emotional pain, suffering, inconvenience, mental anguish, and loss

of enjoyment of life on her disparate treatment claim and remand

for a new trial of that cause of action.14

14
In view of this ruling, we need not address Harris County’s
fourth and fifth arguments on appeal, both of which complain of
parts of the jury charge (one instruction and two interrogatories)
that pertain solely to Rutherford’s disparate treatment claim.

- 22 -
 III

Harris County next complains of two evidentiary rulings: the

district court’s decision to permit Rutherford to introduce

evidence that Sgt. Wells had requested that she have sexual

relations with him, and its ruling refusing to permit Harris County

to introduce evidence of the reasons it terminated Deputy Walker

and of the nondiscriminatory reasons why her supervisors took other

actions. We review these decisions for abuse of discretion.

Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1220 (5th Cir. 1995).

A

Harris County complains that the district court abused its

discretion by permitting Rutherford to introduce evidence that Sgt.

Wells had asked her to have sexual relations with him. It argues

that in Rutherford’s Equal Employment Opportunity Commission

(“EEOC”) charge, and in her affidavit in support of her separate

EEOC retaliation charge, she referred to sex discrimination, not

sexual harassment. Harris County points out that the district

court granted summary judgment before trial because Rutherford had

not exhausted her administrative remedies with respect to any

sexual harassment claims. It maintains that the court abused its

discretion in overruling its objection because the evidence

exceeded the scope of Rutherford’s EEOC charges and was irrelevant

in a case where the sexual harassment claim had been dismissed

before trial. Harris County argues that the court’s ruling

- 23 -
prejudiced it severely.

The district court did not abuse its discretion in allowing

Rutherford to offer proof that Sgt. Wells had asked her to have

sexual relations with him. Evidence concerning a claim that is not

on trial because it exceeds the scope of the plaintiff’s EEOC

charge does not automatically lose its relevance or probative value

to a claim that remains. Cf. United Air Lines, Inc. v. Evans, 431

U.S. 553, 558 (1977) (holding that untimely charges may still

constitute relevant background evidence in proceeding in which

current practice is at issue); Cortes v. Maxus Exploration Co., 977

F.2d 195, 199-200 (5th Cir. 1992) (same). Evidence is relevant if

it has any tendency to make the existence of any fact of

consequence to the determination of the action more probable or

less probable than it would be without the evidence. Fed. R. Evid.

401. Rutherford introduced proof of Sgt. Wells’ conduct in order

to prove discriminatory intent. At a minimum, the evidence was

relevant to Rutherford’s attempt to refute Harris County’s

contention that it opted not to promote her to the full-time deputy

position because she had made numerous, severe errors in accident

reports. Rutherford sought to demonstrate that Corporal Hartley

began closely scrutinizing and heavily criticizing her work only

after his superior——Sgt. Wells——requested unsuccessfully that

Rutherford have sexual relations with him. Moreover, in January

1995, before being rebuffed, Sgt. Wells gave Rutherford high marks

- 24 -
concerning her written work. In September 1995, after she had

spurned Sgt. Wells’ overtures, Corporal Hartley downgraded her

severely. The district court did not abuse its discretion in

admitting this evidence.

B

Harris County also maintains that the district court abused

its discretion by refusing to permit Harris County to present the

reasons for terminating Deputy Walker and the nondiscriminatory

justifications for other actions of supervisors. It argues that

Rutherford elicited testimony from Deputy Walker concerning her

indefinite suspension from the Precinct 7 Traffic Safety Division

to demonstrate that females in the Precinct were treated

differently from their male counterparts. Deputy Walker testified

that she had been suspended for disorderly conduct for scratching

her husband’s car during a time when they were going through a

divorce. Deputy Walker was required to write a report about the

incident and was indefinitely suspended. She testified that she

later learned that her personal information had been disseminated

throughout the Precinct office. Harris County complains that the

district court improperly restricted cross-examination concerning

Deputy Walker’s conduct during the car-scratching incident so the

jury was left with the misimpression that she had been wrongfully

terminated. It argues that it should have been allowed to elicit

evidence during its cross-examination of Deputy Walker that showed

that her conduct made it necessary to investigate whether she had

- 25 -
committed an act of criminal mischief. Harris County maintains

that Rutherford aggravated the adverse impact of the court’s

rulings by asserting in closing argument that “what happened to

[Deputy] Walker is just absolutely atrocious” and that “[w]hen

[Deputy Walker] was ready to move into the full-time position, she

got fired. Same thing happened to [Rutherford].” Harris County

argues that this error affected its substantial right to a fair

trial.

We will assume arguendo that the district court abused its

discretion in restricting Harris County’s cross-examination of

Deputy Walker. For the error to be reversible, however, Harris

County must establish that it suffered substantial prejudice.

Mooney, 54 F.3d at 1220. We conclude from our review of the record

that any error in this ruling did not substantially prejudice

Harris County.

First, we have reviewed Harris County’s proffer and compared

it with the evidence that was in fact introduced. We conclude that

the differences are not so qualitatively significant that we can

confidently discern any adverse effect on Harris County’s

substantial rights. The evidence included in Harris County’s

proffer concerned the details of the car-scratching incident, the

investigation of a possible charge of criminal mischief that

Corporal Francis conducted at the request of the Houston Police

Department (“HPD”), and Harris County’s contentions that the

- 26 -
incident became public knowledge at the Precinct because HPD had

summoned Corporal Francis to the scene, that Deputy Walker was

suspended for conduct unbecoming an officer, and that following a

conditional review for reinstatement, Deputy Walker admitted that

she had been in the wrong and was terminated. Even under the

district court’s ruling, however, the parties elicited evidence

that Chief Tippitt suspended Deputy Walker indefinitely because she

had engaged in disorderly conduct by scratching her husband’s car,

and that Deputy Walker agreed with Chief Tippitt that she should

not have gone to her husband’s apartment complex and vandalized his

vehicle. The district court found, and we agree, that there was

“enough evidence in the record for [Harris County] to argue [to the

jury] that [Deputy Walker] was not willy-nilly terminated.”

Second, when we view this evidence in the context of the

entire record, as we must, see Haun v. Ideal Indus., Inc., 81 F.3d

541, 547 (5th Cir. 1996), and assess it as it relates to

Rutherford’s failure to promote claim, which is the only relevant

context in light of our ruling that Harris County is entitled to a

new trial of the disparate treatment claim, we are unable to say

that the ruling excluding the evidence caused Harris County

substantial prejudice. The focus of the promotion claim was

Rutherford’s proof that she was more qualified than was Green and

that Harris County’s articulated reasons for not promoting her were

pretextual.

- 27 -
 We decline to reverse the verdict based on the district

court’s evidentiary rulings.

IV

Harris County asserts that the district court abused its

discretion in awarding Rutherford front pay of $125,00015 because

she testified that she felt reinstatement was feasible and in fact

requested this relief, and there was no evidence that reinstatement

was not feasible. It complains that the district court did not

articulate any basis for its decision to award front pay.

Although the district court asked the jury to make findings

concerning the amount of front pay, it recognized that it retained

the discretion not to award this relief even if the jury granted

future damages. During the charge conference it stated that “the

door is not closed on the question of whether or not reinstatement

is an appropriate remedy versus damages.” The district judge

“reserve[d] the right to make that determination at the appropriate

time.” Although the parties tried this case before our decision in

Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998), the

district court essentially anticipated our holding that front pay

is an equitable remedy for the district court to determine, with

15
The district court awarded Rutherford $175,001.00 in
“Damages” in its May 13, 1998 judgment and the same amount as
“Damages (Front Pay—Jury Award)” in its August 17, 1998 judgment.
The sum of $125,000 to which Harris County refers consists of
$100,000 for lost future wages and $25,000 for lost future benefits
that the jury awarded on her failure to promote claim.

- 28 -
the assistance of an advisory jury if it wishes. Id. at 423 n.19.

The dispositive question on appeal, however, is whether the

district court adequately explained why it awarded front pay. We

hold that it did not. “Front pay is awarded to compensate the

plaintiff for lost future wages and benefits.” Shirley v. Chrysler

First, Inc., 970 F.2d 39, 44 (5th Cir. 1992). We have recognized

that “[a]lthough reinstatement is the preferred remedy for a

discriminatory discharge, front pay may be awarded if reinstatement

is not feasible.” Woodhouse v. Magnolia Hosp., 92 F.3d 248, 257

(5th Cir. 1996) (age discrimination discharge case). We review the

district court’s decision to award front pay only for abuse of

discretion. Id. “On appeal, we look to the record to determine

why the district court considered reinstatement infeasible.”

Weaver v. Amoco Prod. Co., 66 F.3d 85, 88 (5th Cir. 1995) (citing

Walther v. Lone Star Gas Co., 952 F.2d 119, 127 (5th Cir. 1992)).

We require that the district court adequately articulate its

reasons for finding reinstatement to be infeasible and for awarding

front pay instead. See id. at 89.

Rutherford asserted at oral argument that the district court

had implicitly found that an award of front pay was appropriate.

She cites in her brief several reasons for this contention,

positing that each is supported by the evidence, and that the

- 29 -
district court was aware of each such ground.16 Regardless whether

the district court had a basis to award front pay, it did not

adequately articulate its findings. Rutherford has cited no place

in the record, and we have found none, where the district court set

out its reasoning. We must therefore vacate the front pay award

and remand for further proceedings on this issue.

In doing so, we note the potential misapplication of the term

“reinstatement” in this case. We raise this issue ourselves

because it may impact the district court’s resolution of the front

pay question. Harris County and Rutherford join issue over whether

the district court should have ordered reinstatement rather than

front pay. But this is a promotion case, not a discharge case.

Thus when the parties refer to the remedy of “reinstatement,” they

perforce mean an order directing that Rutherford be promoted to

full-time deputy constable, not that she be restored to the

position of STEP deputy constable. In the present case, this is

more than a question of semantics.

First, “reinstatement” in a promotion case may involve

considerations that are not present in a discharge case. Cf.

Zerilli v. New York City Transit Auth., 973 F. Supp. 311, 317-18

(E.D. N.Y. 1997) (addressing whether successful Title VII plaintiff

who was denied promotion should be granted prospective relief in

16
Rutherford also asserted during oral argument that the jury
had by its verdict made the required findings. We reject this
contention.

- 30 -
form of promotion or front pay). Second, the evidence that Harris

County cites to contend that even Rutherford felt she could be

reinstated (and that she requested reinstatement), see Appellant

Br. at 25, may not in fact support this assertion. Rutherford

testified:

Q. Did you feel or do you feel that, if the judge
should order it, that the [sic] that you would
be able to go back to doing your deputy’s
duties at Precinct 7; in other words, do you
feel like you could be reinstated there and
get back to being in law enforcement?

A. Yes.

Q. Would you request that you be allowed to do
that if it would be found to be appropriate?

A. Yes.

Tr. II:156-57. This evidence does not explicitly address whether

Rutherford was addressing reinstatement to her former deputy

position or promotion to the job she was denied. We leave to the

district court on remand, of course, the determination of how the

evidence should be assessed, subject to review of its final front

pay decision only for abuse of discretion.

Absent the required findings, we vacate the award of front pay

and remand the issue to the district court for further proceedings.

V

We next address the district court’s award of back pay and

prejudgment interest. In its original judgment, entered May 13,

1998, the district court made no such award. On July 8, 1998

- 31 -
Rutherford filed a Rule 60 motion for relief from judgment. Later

that day, Harris County filed its notice of appeal. The district

court granted Rutherford’s motion and entered on August 17, 1998 a

new judgment that provided for back pay of $74,900 and prejudgment

interest thereon.

A

Harris County contends the district court lacked jurisdiction

to award back pay and prejudgment interest after Harris County had

already filed its notice of appeal. It argues that even if the

district court had obtained leave of this court to grant

Rutherford’s motion for relief from judgment, it would have abused

its discretion in doing so because, when it issued its May 13, 1998

findings of fact and conclusions of law, it made no findings that

Rutherford was entitled to back pay in any amount or to prejudgment

interest. Harris County also posits that the district court abused

its discretion in awarding back pay because Rutherford failed to

mitigate her damages. It asserts that when she did not receive the

promotion to full-time deputy, she requested that she be

transferred to the reserve system, an unpaid position, instead of

remaining as a part-time deputy.

Rutherford contends that the district court had jurisdiction,

that she filed her Rule 60 motion for relief from judgment before

Harris County filed its notice of appeal, that the cases on which

Harris County relies are distinguishable, and that, alternatively,

the district court could have awarded relief based on Rule 60(a)

- 32 -
because its error in not doing so was clerical. Rutherford

maintains that Harris County did not demonstrate compelling

circumstances sufficient to deny back pay, that the award is

supported by substantial evidence, and that Harris County did not

meet its burden of demonstrating failure to mitigate. Rutherford

also asserts that the district court properly awarded prejudgment

interest.

B

Because we are considering an issue of the district court’s

subject matter jurisdiction, our review is plenary. Taylor-

Callahan-Coleman Counties Dist. Adult Probation Dep’t v. Dole, 948

F.2d 953, 956 (5th Cir. 1991). We agree with Harris County that

the district court lacked jurisdiction to grant Rutherford’s motion

for relief from judgment.17 Harris County filed its notice of

appeal before the district court entered its August 17, 1998

judgment, which for the first time contained recoveries of back pay

and prejudgment interest. A district court loses all jurisdiction

over matters brought to the court of appeals upon the filing of a

notice of appeal. Winchester v. United States Attorney for S.

Dist. of Tex., 68 F.3d 947, 948 (5th Cir. 1995) (voiding judgment

17
We recognize that an appeal from an unappealable order does
not divest a district court of subject matter jurisdiction. See
United States v. Hitchmon, 602 F.2d 689, 690-91 (5th Cir. 1979) (en
banc) (holding that appeal from unappealable order does not divest
district court of jurisdiction during period that appeal is pending
in circuit court). The judgment in question, however, was
undisputably appealable.

- 33 -
where Rule 60(b) motion was filed, then notice of appeal was filed,

and court later granted judgment based on Rule 60(b) motion,

holding that filing of notice of appeal divested district court of

jurisdiction); Henry v. Independent Am. Sav. Ass’n, 857 F.2d 995,

997-98 & n.10 (5th Cir. 1988). Once “an appeal is taken, the

district court is divested of jurisdiction except to take action in

aid of the appeal until the case is remanded to it by the appellate

court, or to correct clerical errors under Rule 60(a).” Travelers

Ins. Co. v. Liljeberg Enters., Inc., 38 F.3d 1404, 1407 n.3 (5th

Cir. 1994). “Without obtaining leave, the district court is

without jurisdiction, and cannot grant the [Rule 60(b)] motion.”

Winchester, 68 F.3d at 949 (emphasis deleted) (quoting Travelers

Ins., 38 F.3d at 1407 n.3). It is irrelevant that Rutherford filed

her motion at an earlier point in the day on July 8, 1998 than

Harris County filed its notice of appeal. Once the notice was

filed, the district court lost jurisdiction with respect to any

matters involved in the appeal. See id. (holding that district

court lacked jurisdiction on May 5, 1994 to grant Rule 60(b) motion

filed March 30, 1994, where movant had filed notice of appeal on

April 26, 1994, between date that it filed Rule 60(b) motion and

date that district court granted motion).

Nor can we uphold the district court’s action based on Rule

60(a). Rule 60(a) is available only when a mistake is clerical in

nature. See Jones v. Anderson-Tully Co., 722 F.2d 211, 212 (5th

- 34 -
Cir. 1984) (per curiam). When it entered its findings of fact and

conclusions of law on May 13, 1998, the district court made no

findings that Rutherford was entitled to back pay in any amount or

that she was entitled to prejudgment interest. The failure of the

district court to make findings and to award back pay or

prejudgment interest was not clerical in nature because correction

of an error in substantive judgment is outside the reach of Rule

60(a). In re West Texas Marketing Corp., 12 F.3d 497, 503 (5th

Cir. 1994). We find that Chavez v. Balesh, 704 F.2d 774, 776 (5th

Cir. 1983), which Rutherford characterized at oral argument as

being “almost identical” with the instant case, does not assist

her. In Chavez we held that the district court’s failure to award

liquidated damages was correctable as a clerical oversight where

the district court had clearly expressed its intention to award

liquidated damages in findings of fact signed and entered the same

day as its judgment, and the original judgment itself began by

reciting that it was being entered in accordance with the court’s

findings of fact and conclusions of law.

Accordingly, because the district court lacked jurisdiction to

grant such relief, we vacate the award of back pay. It follows

that because the award of prejudgment interest is based solely on

the recovery of back pay, we must vacate that part of the judgment

as well.

- 35 -
 C

On remand the district court will again have jurisdiction and

may decide to award back pay. We will therefore address Harris

County’s argument that Rutherford failed to mitigate her damages.

Harris County maintains that when Rutherford did not receive

the full-time deputy position, she requested a transfer back to the

regular reserve system, an unpaid job, and Harris County terminated

her as a reserve deputy when she failed to attend mandatory

meetings. Harris County argues that Rutherford could have

mitigated her damages by remaining in her current position.

A Title VII plaintiff has a statutory duty to mitigate her

damages. Sellers v. Delgado College, 902 F.2d 1189, 1193 (5th Cir.

1990). The district court did not enter findings of fact

concerning back pay or, specifically, the mitigation defense, which

the parties listed in the joint pretrial order as a contested issue

of fact, and Harris County argued in its response to Rutherford’s

post-verdict motion for entry of judgment. From our review of the

record, it appears the district court adopted in part the back pay

calculation that Rutherford set out in her motion for judgment.18

If on remand the district court decides to award back pay, it must

either deduct the amount (if any) that Rutherford could reasonably

have mitigated——determined according to the applicable burden of

18
Rutherford requested $74,900 in lost wages and benefits and
$38,305.20 for the lost opportunity to work a STEP contract as an
extra job. The district court awarded her $74,900.

- 36 -
proof and legal standards——or award the full amount and enter

supporting findings for doing so.

Moreover, it also appears that the back pay that Rutherford

requested, and that the district court awarded, overstates the

amount to which she is entitled.19 "‘Back pay’ commonly refers to

the wages and other benefits that an employee would have earned if

the unlawful event that affected the employee’s job related

compensation had not occurred.” Patterson v. P.H.P. Healthcare

Corp., 90 F.3d 927, 936 n.8 (5th Cir. 1996). Because this is a

promotion case, Rutherford’s lost back pay equals the additional

incremental wages and employment benefits that she would have

received had she been promoted. See Edwards v. Occidental Chem.

Corp., 892 F.2d 1442, 1449 (9th Cir. 1990) (holding that district

court did not err in awarding back pay based on computation of

difference between what plaintiff earned as shipping assistant and

what she would have earned had she received shipping supervisor

promotion, calculated from time promotion was given to another

person to date of judgment); cf. Bennun v. Rutgers St. Univ., 941

19
We have compared the front pay that Rutherford requested in
closing argument with the jury’s advisory findings. Although we
are unable to conclude that the findings suffer from an infirmity
that is similar to the one we now address (for one thing, they
represent sums that have been reduced to present value in
accordance with the jury instructions), we note that the district
court is free on remand to calculate front pay based on its own
assessment of the evidence. See Enserch Corp. v. Shand Morahan &
Co., 952 F.2d 1485, 1502 (5th Cir. 1992) (holding that court is
free to disregard findings of advisory jury).

- 37 -
F.2d 154, 157 (3d Cir. 1991) (referring to judgment in Title VII

action in which district court awarded associate professor, who was

denied promotion to full professor, back pay that amounted to

difference between his earnings as associate professor and what he

should have been paid as full professor). In Rutherford’s motion

for entry of judgment and her requested findings of fact and

conclusions of law, however, she simply multiplied Green’s entire

monthly salary of $2,375.00, and benefits of $300 per month, by the

number of months that elapsed between the date she would have

started the full-time deputy job and the month before trial began.

She did not limit her request to the difference between the wages

and benefits that she would have received had Harris County

promoted her and those that she earned in the position she held

when denied the promotion.20

20
As we have noted, after Harris County declined to promote
her, Rutherford requested a transfer to reserve deputy status.
Harris County discharged her when she failed to attend mandatory
meetings. Although Rutherford testified at trial that she resigned
as a STEP deputy and returned to reserve status because Corporal
Hartley (whom she considered her main tormentor) had become a
sergeant, and that her subsequent termination from reserve status
for absenteeism was an act of retaliation, the district court
granted summary judgment dismissing these claims. She did not
appeal either ruling. We see no basis for her to recover back pay
in an amount greater than the difference in wages and benefits
between the two positions.
Moreover, there is another reason in the trial record to
question Rutherford’s approach to the issue of back pay.
Rutherford testified that as a part-time deputy constable, she
earned approximately $704.00 per week (32 hours multiplied by
approximately $22.00 per hour). Green testified that as a full-
time deputy constable, he was paid $2,375.00 per month plus
benefits. Chief Tippitt testified that the monthly benefits for a
full-time deputy constable equaled approximately $300 in value.

- 38 -
Assuming that Rutherford worked four weeks per month, it would
appear, according to the trial evidence, that her monthly pay and
benefits as a part-time deputy ($704.00 x 4=$2,816) actually
exceeded what Green was paid as a full-time deputy ($2,375.00 +
$300=$2,675.00).

- 39 -
 VI

Finally, in related arguments, Harris County challenges the

district court’s attorney’s fee award.21 It contends the district

court abused its discretion by enhancing the lodestar and that it

made clearly erroneous findings of fact and conclusions of law in

doing so. “We review a district court’s award of attorney’s fees

for an abuse of discretion, and we accept the factual findings upon

which the district court bases its award of attorney’s fees,

including the determination of the number of hours reasonably

expended on the litigation, unless they are clearly erroneous[.]”

Brady v. Fort Bend County, 145 F.3d 691, 716 (5th Cir. 1998)

(citations omitted), cert. denied, ___ U.S. ___, 119 S.Ct. 873

(1999).

A

Harris County posits that the district court abused its

discretion by enhancing the lodestar attorney’s fee by a multiplier

of 1.5 on the ground that Rutherford’s attorneys had accepted the

case on a contingent fee basis. Rutherford argues that the trial

court properly enhanced her attorney’s fees award based on detailed

findings supported by specific evidence under the proper factors in

Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.

21
As we explain infra at § VI(B), to the extent that Harris
County relies on this argument to challenge any part of the
district court’s judgment except the attorney’s fee award, we hold
that it is not properly briefed.

- 40 -
1974). She appears to contend that the district court enhanced the

lodestar on permissible grounds.22

To decide an appropriate attorney’s fee award, the district

court was first required to calculate a lodestar fee by multiplying

the number of hours reasonably expended on the litigation by a

reasonable hourly rate. League of United Latin Am. Citizens #4552

v. Roscoe Indep. Sch. Dist., 119 F.3d 1228, 1232 (5th Cir. 1997).

The court was next obligated to consider whether the lodestar

amount should be adjusted upward or downward, depending on the

circumstances of the case and after addressing the Johnson

factors.23 See Wegner v. Standard Ins. Co., 129 F.3d 814, 822 (5th

Cir. 1997).

The district court calculated the lodestar amount by

multiplying 511.2 hours (which it found was the number of hours

22
At oral argument, Rutherford stated her position more
explicitly, asserting that the district judge “did not assign that
particular factor [that the fee was contingent] as the reason for
enhancement. Now, he did consider it along with the others.” As
we explain below, this assertion does not withstand scrutiny.
23
These familiar factors are (1) the time and labor required
for the litigation; (2) the novelty and complication of the issues;
(3) the skill required to properly litigate the issues; (4) whether
the attorney had to refuse other work to litigate the case; (5) the
attorney’s customary fee; (6) whether the fee is fixed or
contingent; (7) whether the client or case circumstances imposed
any time constraints; (8) the amount involved and the results
obtained; (9) the experience, reputation, and ability of the
attorneys; (10) whether the case was “undesirable;” (11) the type
of attorney-client relationship and whether that relationship was
long-standing; and (12) awards made in similar cases. Johnson, 488
F.2d at 717-19.

- 41 -
reasonably expended) by $187.50 (which it found was the reasonable

hourly rate). The court enhanced the lodestar upward to

$148,775.00 by multiplying it by a factor of 1.5 and adding $5,000

incurred litigating the fee application. Harris County does not

challenge in any specific respect the calculation of the lodestar

fee. Instead, it focuses only on the enhancement.

We hold that the district court based the 1.5 multiplier

enhancement entirely on Johnson factor 6, because the only mention

of augmenting Rutherford’s attorney’s fees on this basis is

contained in the section of the district court’s findings entitled,

“Whether the Fee is Fixed or Contingent.” In that part of its

findings and conclusions, the district court stated: “Accordingly,

it is appropriate to enhance the plaintiff’s attorney’s fees by the

multiplier of 1.5 sought.” (citation omitted). We hold that the

district court abused its discretion because the Supreme Court has

barred any use of this factor. Walker v. United States Dep’t of

Housing & Urban Dev., 99 F.3d 761, 772 (5th Cir. 1996) (citing City

of Burlington v. Dague, 505 U.S. 557, 567 (1992)); see Shipes v.

Trinity Indus., 987 F.2d 311, 323 (5th Cir. 1993) (“[F]ollowing the

clearly lighted path of Burlington, we now hold that the contingent

nature of the case cannot serve as a basis for enhancement of

attorneys’ fees awarded to prevailing plaintiffs under traditional

fee-shifting provisions.”). Although the district court explicitly

discussed Johnson factors 1, 2, 5, 6, 8, 10, and 12, we find

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nothing in the record to support Rutherford’s contention that the

court based the enhancement on one or more permissible factors.

Accordingly, we vacate and remand the attorney’s fee award so

that the district court can reconsider what award should be made

without taking into account whether the fee was fixed or

contingent.

B

Harris County argues the district court erred by making

clearly erroneous findings of fact and conclusions of law that were

not supported either by the pleadings or the evidence. It

maintains that “none of these findings should have been considered

in computing or enhancing the lodestar attorney’s fee or for any

other purpose.” Appellant Br. at 31.

If Harris County intends by this argument to challenge any

relief that the district court granted other than attorney’s fees,

we find that its oblique reference to “any other purpose” is

inadequate to brief the issue. Because we will not consider an

issue that is inadequately briefed, see Dardar v. Lafourche Realty

Co., 985 F.2d 824, 831 (5th Cir. 1993) (holding that “[q]uestions

posed for appellate review but inadequately briefed are considered

abandoned.”), we do not address this contention.24

24
Harris County elsewhere asserts that because certain of the
findings are unsupported in the record, “there was no basis for the
injunctive relief ordered by the court.” Appellant Br. at 30. We
hold that this conclusory assertion is not adequately briefed and
we decline to consider it.

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 Harris County contends the following findings are clearly

erroneous and should not have been considered in computing or

enhancing the lodestar attorney’s fee: (1) other females, including

Deputy Walker, were discriminated against in that they were skipped

for a promotion or otherwise retaliated against for engaging in

protected activity under Title VII; (2) inappropriate documents

were placed in Rutherford’s personnel file, causing damage to her,

and Harris County has hindered her ability to obtain law

enforcement employment; (3) Harris County engaged in blatant

efforts to influence the testimony of witnesses through

terminations and reprimands; (4) Harris County had an inadequate

“no harassment policy” and the policy was not implemented until

after Rutherford had been terminated; (5) the testimony

demonstrated the need for county-wide Title VII injunctions; and

(6) there was a pattern in Precinct 7 of enticing women to apply

for “reserve” or voluntary work, subjecting them to on-the-job,

psychologically damaging sex discrimination, terminating those who

opposed sex discrimination, and refusing to allow women to advance

into supervisory positions.

Even if we assume arguendo that these findings are clearly

erroneous, we can discern no impact that they had on the

calculation of the attorney’s fee award. The discussions of

discrimination against other females, including Deputy Walker, and

placement of inappropriate documents in Rutherford’s file, were not

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included in the district court’s discussion of the lodestar or any

particular Johnson factor. Therefore, any erroneous findings are

harmless in the context of the fee award, which is the only

relevant one. The findings regarding influencing testimony,

inadequate anti-harassment policy, and the need for county-wide

injunctions were merely three of several reasons on which the

district court relied to find that Rutherford’s counsel reasonably

expended 511.2 hours in legal services. But, as we have noted,

Harris County does not argue on appeal that the time expended was

unreasonable. Because these findings were considered only to

determine the lodestar, not to enhance the fee, any error is

harmless. The district court relied on the finding of a

discriminatory pattern in analyzing the eighth Johnson factor——the

amount involved and results obtained. We find no indication that

the district court calculated the lodestar, or enhanced the fee

award, based on this factor. Harris County has failed to establish

that any one or more of these findings, even if clearly erroneous,

provide a basis for reversal.

Accordingly, we vacate the fee award and remand that issue to

the district court for further proceedings.25

25
We acknowledge that we could affirm the fee award without the
multiplier if we were not also vacating the judgment concerning
Rutherford’s disparate treatment claim. Because that decision may
impact what the district court determines is a reasonable fee,
however, we cannot modify the fee award and affirm it on that
basis.

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 * * *

In sum, we affirm the verdict and judgment as to Harris

County’s liability under Title VII for failing to promote

Rutherford to the position of full-time deputy; reverse and remand

for a new trial Rutherford’s disparate treatment claim; and vacate

and remand for further proceedings the awards of front pay, back

pay, prejudgment interest, and attorney’s fees.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART, AND VACATED

AND REMANDED IN PART.

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